DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ali Azim Zadeh
v
Woolworths Ltd
(U2014/12251)

Termination of employment - application for an unfair dismissal remedy - concern for applicant’s health - psychological assessment recommends second opinion - direction to undertake second assessment and/or treatment - refusal to comply with lawful and reasonable direction - valid reason for dismissal - no mitigating factors - applicant working in new employment - dismissal not ‘harsh, unjust or unreasonable’ - application dismissed.

INTRODUCTION

[1] This decision will determine an application for an unfair dismissal remedy, filed by Mr Ali Azim Zadeh (the ‘applicant’) on 4 September 2014, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant commenced employment with Woolworths Limited (the ‘respondent’ or ‘Woolworths’) on 7 November 2011 as an Order Selector at the Brisbane Liquor Distribution Centre (BLDC). He later requested and was granted a transfer on 6 September 2013, to the Brisbane Regional Distribution Centre (BRDC).

[2] The applicant was dismissed on 25 August 2014 for the following reasons:

(a) He was not medically fit to perform the inherent requirements of his role (based on a report by a psychologist, Ms Catherine Waight); and

(b) Despite numerous requests by the respondent, the applicant refused to obtain a second opinion or medical treatment (as recommended by Ms Waight) in order to safely return to his role.

[3] In his Form F2 application, the applicant said that he was dismissed because:

‘For a long time I have been bullied, and whenever I talked about it, they told me we could not find any evidence, your witness did not say anything, if you have been bullied transfer yourself to another shift , and I transferred myself to another warehouse but I was black marked everything continued and got worse until I raised some issues, they told me instantly it is not our filed, we are worried for your safety go and see a psychologist ,I went to see the psychologist she wrote for them I am mad, they told me you are not fit for work(poor health) go and see another psychologist, I refused because I gave them enough evidence, psychologist did not know about all issues, she did not know why I have been sent to her and after just less than 1 hour meeting she called me mad, and after a while they sacked me.

In addition, the applicant claimed to be physically and mentally in good health, but believed he was dismissed ‘because of racial things and for that I have a witness’.

[4] Section 385 of the Act defines what constitutes an unfair dismissal. It reads as follows:

‘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.’

[5] At this juncture, I make the following preliminary findings.

(a) The applicant was a national system employee and the respondent is a national system employer (ss 13, 14, 380)

(b) The applicant was employed under the terms of the Woolworths Limited Brisbane Regional Distribution Centre Enterprise Agreement 2011 [AE890342] (s 382(b)(ii)).

(c) The application was filed within the 21 day statutory time period (s 394(2)).

(d) The applicant had the minimum employment period (ss 382(a), 383).

(e) The applicant was dismissed at the initiative of the employer (ss 385(a), 386(1)(a)).

(f) The applicant was a person protected from unfair dismissal (s 382).

(g) The applicant’s dismissal was not a case of genuine redundancy (ss 385(d), 389).

(h) The respondent is not a small business, as defined (1,046 employees) and accordingly, the Small Business Fair Dismissal Code does not apply (ss 23, 385(c), 388).

[6] Thus, the only matter the Commission it required to consider in this case is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. At this point, I set out the provisions of s 387 as follows:

‘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.’

[7] The application was the subject of the Commission’s internal conciliation process on 28 October 2014, but the dispute was unable to be resolved. The applicant insisted that the only remedy he sought was reinstatement. In the result, the application was listed for hearing in Brisbane on 19 and 20 January 2015. The applicant represented himself and Mr C J Murdoch, of Counsel, was granted permission to appear for Woolworths, pursuant to s 596 of the Act.

BACKGROUND

[8] The following chronology of events leading to the applicant’s dismissal does not appear to be contested.

THE EVIDENCE

[1] In addition to the applicant’s written and oral evidence, the following persons gave evidence for the respondent:

• Mr Scott Morrison, HR Specialist for Woolworths at the time of the applicant’s dismissal;



• Mr Frank Fong, Team Leader, Woolworths;



• Ms Lee Anne Iredale, HR Specialist, Woolworths;



• Ms Katey Thomas, Team Leader, Woolworths;



• Mr Ian Thatcher, HR Manager - Queensland Logistics, Woolworths; and



• Ms Caroline Waight, Psychologist and Clinical Psychology Registrar, The Psych Professionals.

The applicant

[1] In the applicant’s statement, he claimed that he had made ‘lots of bullying and harassment’ complaints, but the witnesses spoken to by management said they knew nothing about them. However, during a WorkCover investigation, other witnesses had actually confirmed what he had been alleging. The applicant said that after he was transferred to a new warehouse, he had sought to escalate his issues, but had been ‘warned off’ by the Union delegate. He believed the new team members were aware of his complaints, which involved eight accidents, allegations that he ‘smelled’, other employees swearing at and mocking him and that he had been involved in a number of safety infringements. However, he claimed the Team Leaders had actually said that everyone should perform as well as he did.

[2] When the applicant had raised incidents occurring outside of work, Mr Morrison had told him to go to the Police. He did not do so as he did not want to get anyone else into trouble. Mr Morrison had directed to him to see a psychologist. However, he believed he did not need to and, in any event, he would not have chosen Ms Waight. Nevertheless, he agreed to see Ms Waight, but he had not told her everything he had told Mr Morrison. Ms Waight had told him that she did not know why he had been referred to her. She had phoned him on a few occasions later to ask about whether he was using drugs. She assured him everything was good and he would get his job back for sure. However, the applicant said that he was in ‘limbo’ and did not get any response when he phoned the respondent to ask when he could come back to work.

[3] The applicant later met with Mr Morrison who told him to see a second psychologist. He refused. However, for the first time, he had told Mr Morrison, the names and details of his complaints about incidents outside of work. Mr Morrison called him the next day and he again refused to see a second psychologist. He refused again when Woolworths’ HR Officer (Ms Lee-Ann Iredale) had called him. He was honest with her, but maintained his refusal to see a psychiatrist.

[4] The applicant claimed he gave the respondent ‘100% performance’ and had a ‘great attendance’. He was always ‘nice to other team members’. Since his dismissal, he had worked at four well known warehouses, through an agency, and all their managers were ‘happy with me and my job.’

[5] In cross examination, the applicant confirmed he had made a number of complaints to various Team Leaders/Coordinators, including Alex Alvida, Brooke Dew, Tim Goldsmith and Mr Morrison. On one occasion, he had met with Mr Morrison with a Union official, Ian McKay from the National Union of Workers (NUW or the ‘Union’). Mr Morrison had noted his complaints and a second meeting took place a couple of weeks later, at which Mr Morrison advised him of the respondent’s investigations of his complaints. Shortly thereafter, he agreed to being relocated to Larapinta on a three month trial. He later told Mr Morrison he was happy working there and asked to stay permanently. This was agreed. He reported to Ms Katey Thomas, Mr Frank Fong and Mr Trent Platt.

[6] The applicant had been counselled by Ms Thomas due to a safety incident on 16 January 2014. He had lodged a grievance about the warning he had received arising from this incident. Mr Morrison discussed his grievance with him later in January, but the decision was not changed. At this meeting, the applicant told Mr Morrison that there were people out to harm him and rob his house. He denied having said that they were NUW members, rather he told Mr Morrison that the NUW would have known his address from a form he had filled out. He claimed that the words ‘beat Ali, beat Ali’ were in the context of other employees bettering his performance, rather than threatening to ‘beat’ or assault him. The applicant denied telling Mr Morrison that people were doing ‘burn-outs’ outside his house. He believed that many of the things Mr Morrison had said, were lies.

[7] The applicant explained that he had made a complaint in March 2014 about another employee, Mr Luke Armstrong alleging that he had got angry with him and would not leave him alone. He had a meeting with his Shift Manager and HR about this complaint. He was later advised that Mr Armstrong had been spoken to about his behaviour. Despite this, Mr Armstrong had continued to be ‘nasty’ to him.

[8] In early May 2014, the applicant made a complaint to Ms Thomas that Mr Ricky Frewin swore at him. He agreed that the complaint was investigated and that he met Mr Fong to discuss it.

[9] In July 2014, there was a further incident between the applicant and Mr Solosi Tuli in which Mr Tuli had said he would ‘smash’ his face. He denied Ms Thomas had asked him to write a statement. However, he did have a meeting with Mr Fong about the incident and other matters. It was at this meeting that he told Mr Fong he had seen ‘people like zombies’. He had also told Mr Fong that people in his neighbourhood suspected him of abusing children when a 10-11 year old girl knocked on his door and later when he was walking to the Post Office.

[10] In light of these revelations, a further meeting was arranged with Mr Fong and Mr Morrison. The applicant denied he had told Mr Morrison that he saw Ms Dew and Ms Thomas hiding in his front yard at night and yelling out to him. He agreed that he told Mr Morrison he heard someone yelling out ‘Brooke loves you’. He denied telling Mr Morrison that Ms Thomas had complimented him on several occasions and he was disappointed when she moved to the morning shift. He also denied telling Mr Morrison that Ms Thomas had told other employees to call him ‘gay’ or that Ms Thomas had rented a house next his and was taking photos of him.

[11] As to the child abuse issues, I quote the following exchanges with the applicant in cross examination:

‘You also told Mr Morrison about the occasion that you’d already mentioned about the little girl knocking on your door raising money, didn’t you?---Yes, I said that, yes.

You also told Mr Morrison that when you went to the Forest Lake shopping centre you saw lots of people like zombies who had no emotion and they would look at you?---Yes.

And that they would bring little children under six months, make you look at them and when you passed them they would beat up the child to make noise?---To get attention from me, yes I said that.

You also told Mr Morrison that when you were at the check-out at the shopping centre the girl who was packing said to you that you were on a prank camera?---Yes, she said you are on the prank cameras, yes.

You told Mr Morrison that every weekend when you go shopping some children and people get children to say to you, “Cuddle me.”?---No, no, no, I said these things have happened as well. No, this one happened when I had gone for a walk around the lake in front of my house, yes that happened as well. But I didn’t happen in the shopping centre, in front of lake, yes the child was with adult, I can say to you lady you can call her grandma, yes she was saying tell me – tell me give me (indistinct) tell me (indistinct) yes, and I said that.

You told him that there were people at the BRDC who talked about child abuse?---Yes, sir.

And that someone once asked you about a trial in England about child abuse?---Yes, I had gone for tea break or lunch break - - -

No, no, I’m just asking you whether you told Mr Morrison about that?---Yes, sir.

...

You said that the people who you said looked like zombies had their children very well trained but they abused their children?---Yes, you can believe it. I’ve been in shopping centre, Woolworths in (indistinct) their child Asian appearance, Asian looking, the lady who was with him hit this, hit this, hit his trolley and he was doing that, amazing, amazing.

You told him that you took off your beanie and threw it up in the air, didn’t you?---Yes., no, no, no. Yes, I did that to say this, when I got out of another shopping centre again that same child with a male this time - - -

Wait a second, this is a child you’ve seen before?---Yes, sir.

That child again with a male this time, yes?---Sir, I’ve seen seven of them with different adults, with different adults.

The same child with different adults is it?---Yes, sir, I’ve seen that. I’ve seen child with Asian appearance, with other adult, okay, yes I’ve seen that, sir.

You took off your beanie and threw it in the air, didn’t you, I think you said and you said to Mr Morrison, “This is what they do to their babies.”?---When I got outside from in other shopping centre this father was like this on the bench and he threw the child like this, he came down. It wasn’t like six months, like two years old. He threw it like this and the child came on (indistinct) yes I said that, I saw that sir.’

[12] At the end of this meeting, Mr Morrison said he was concerned about the applicant’s wellbeing and suggested he consult a psychologist. He reluctantly agreed to go, but did not really know why it was necessary. He saw Ms Waight on 12 July 2014. He claimed Ms Waight told him she did not know why he had been sent to her. He agreed Ms Waight had asked him about what he had told Mr Morrison. He told her that Ms Thomas had made advances to him and had provoked other colleagues into harassing him. He had also told Ms Waight about the child abuse claims. He said he was relaxed during the consultation and felt good. Ms Waite had phoned him subsequently with some follow up questions. She had also told him he was going back to work, ‘for sure’.

[13] Mr Morrison had a further meeting with the applicant and had told him that Woolworths considered him unfit for work and that he was required to attend a second medical assessment and/or undergo treatment. He had told Mr Morrison he did not need to. He understood what might happen if he did not. He agreed it was a serious matter. Mr Morrison gave him 24 hours to reconsider, but he maintained his refusal.

[14] The applicant then spoke to Ms Iredale (HR) and told her Ms Waight’s report was ‘nonsense’ as she had not taken account of all relevant material. The applicant was asked why he had not agreed to a second assessment, if there was nothing wrong with him? He replied that even Ms Waight queried why he had been sent to her. He did not believe the respondent’s direction was reasonable. Ms Iredale told the applicant she would be speaking to HR Manager Ian Thatcher and would call him back. The applicant told her he wanted to contact Ms Waight in order to have her change her report. Ms Iredale asked the applicant to put his reasons in writing for refusing a second medical assessment. He refused and said he intended to seek legal advice. Ms Iredale told him that if he continued to refuse to comply with Woolworths’ request, the Company may need to consider terminating his employment. He understood what Ms Iredale had told him. She advised him to discuss the issue with a friend or family.

[15] The applicant agreed he had received a letter dated 18 August 2014, directing him to advise, by 12:00pm, 21 August 2014, whether he was willing to undertake treatment and a second assessment. Although he understood what was expected of him, he did not reply.

[16] The applicant said that while he was suspended on pay, he had phoned Mr Fong to tell him he had obtained casual work. He continued casual employment, through an agency, after his dismissal and continues to do so. The applicant said he had consulted a lawyer twice since 15 August 2014. He seeks reinstatement to his former position.

For the respondent

[17] Given that much of the respondent’s evidence detailed the uncontested chronology of events leading up to the applicant’s dismissal (see para [8] above), I shall not repeat that evidence. I shall focus on the evidence of the respondent which conflicted with that of the applicant.

Mr Scott Morrison

[18] Mr Morrison is currently employed as a HR Specialist at Masters Home Improvement. At the relevant time, he was the HR Specialist advising on employee relations issues at the two warehouses where the applicant had worked.

[19] Mr Morrison said that when the applicant was working at the BLDC, he had made approximately ten complaints against various employees to his Shift Manager, Tim Goldsmith. The general nature of these complaints related to safety concerns he had with other employees and his belief that other team members were ‘having a go’ at him. The applicant thought that this was because he was a high performer, which made them look bad. Mr Morrison investigated all of these complaints and, with the exception of one (involving another employee, Alex Avila), all were found to be unsubstantiated. He communicated the outcomes of the investigations to the applicant and discussed each of the complaints with him. As the applicant expressed concerns about working with the employees he had complained about, he requested a transfer to the BRDC. Mr Morrison facilitated this request.

[20] Mr Morrison referred to the applicant’s further complaints and incidents which he had investigated during 2014. In a meeting to discuss a safety incident on 16 January 2014, the applicant was offered a support person. He declined the offer. In this instance, it was found that the applicant had breached the respondent’s Code of Conduct by not reporting the incident immediately. During the meeting, the applicant made comments to the effect of:

(a) People were telling him that they were going to harm him;

(b) People were in front of his house yelling about they fact they were going to harm him and rob him;

(c) He thought the people were members of the NUW; and

(d) These people would say, ‘Beat Ali, beat Ali’.

The applicant also told him that people were doing ‘burn outs’ in front of his house. He had tried to catch them and take photographs of them. Mr Morrison said he should report such matters to the Police.

[21] On 11 July 2014, Mr Fong approached Mr Morrison and raised his concerns with the applicant’s behaviour. He thought that Mr Morrison should meet with him. He and Mr Fong met the applicant at 9:33am that day. The applicant declined to have a support person present. At the beginning of the meeting, the applicant complained of an incident in which another employee had told him, ‘I’m going to smash your face’. The applicant then proceeded to raise a number of other matters which appeared irrational or disturbing. These were:

(a) That he saw Ms Katey Thomas (Team Leader) tell Mr Trent Platt (Team Leader) that, ‘Ali’s friends with Brooke, he’s with Brooke’. The applicant stated that this was in reference to Brooke Dew, who is a Team Co-ordinator at BLDC.

(b) That he believed Ms Dew and Ms Thomas hide in his front yard at night and yell, ‘I like you for your behaviour, Katey wants you for your performance, get out of your house and come to bed with us.’

(c) That people hide in the dark in the front of his house and on the tennis court opposite his house yelling out, ‘Brooke loves you.’

(d) That Ms Thomas told him that ‘Brooke is on Level 2 so you want me to send you up to her?’ The applicant said he then checked if Ms Dew was working at BRDC and was told ‘no’ so he stated he felt that it was a ‘trap’ by Ms Thomas.

(e) When asked what the applicant’s working relationship was like with Ms Dew at the BLDC, the applicant spoke fondly of her and recalled that she had complimented him on several occasions and was disappointed when he could not see her anymore when she moved to morning shift.

(f) That everyone called him ‘gay’ and that Ms Thomas had told people to call hm that.

(g) The applicant then became anxious and explained that on occasion a ‘little girl’ knocked on his door raising money for an organisation and when the child went to the house next door, the neighbour asked, ‘did he abuse you?’

(h) That when the applicant visited the Forest Lake shopping centre, he ‘saw lots of people like zombies, they had no emotion and they look at me. They bring little children under six months, they make me look at them and when I pass them they beat up the child to make noise.’

(i) That when he was at the checkout, the ‘girl said while packing that I was on prank cameras’.

(j) That every weekend he goes shopping some children and people, get children to say, ‘cuddle me’.

(k) That people at the BRDC talked about child abuse and that he recalled a time when he was asked about a trial in England regarding child abuse.

(l) That Ms Thomas had sent a text to ‘Chris’ (a BRDC despatch employee) stating that he is a child abuser.

(m) That people in his neighbourhood look like zombies and have children very well trained but they abuse them. The applicant became very animated and worked up and demonstrated this by taking off his beanie and throwing it up in the air, saying, ‘this is what they do to the babies’.

(n) That Ms Thomas had rented a room in a house beside him and had taken photos of him and that this photo had been shared to everyone at the BRDC.

(o) That the applicant had called his family to discuss these issues and that they do not believe him. He stated that he told them, ‘it was serious and in this country they can send me to jail.’

(p) That the zombies the applicant had previously referred to that have no emotion are now angry and his life is in danger.

(q) The applicant said, ‘If they find me in my house with the smell of my body you know what’s happened. If they finish me in my house I have no family to check on me.’

(r) That he can see Ms Thomas’ family everywhere as they are all overweight and that ‘some children look exactly like Katey’.

(s) The applicant said, ‘the zombies want to see if I’m a child abuser. When I see them hurt children, I feel hurt. I feel dizzy. I wish to cry.’

(t) That the applicant had not seen a Doctor and was not taking any medication that may affect his wellbeing and judgement.

(u) That Ms Thomas had ‘showed me her fingers and said this is the most beautiful part of my body. You put a ring on my finger and I go to bed with you.’

[22] Mr Morrison later spoke to Ms Thomas about the applicant’s allegations. He offered her a security escort each day after work because of concerns for her safety. She declined the offer.

[23] Mr Morrison was extremely concerned with the nature of some of these allegations. He also found the applicant’s body language and behaviour very different to how he had found him previously. Mr Morrison formed the view that the applicant was suffering from a psychological illness and suggested he consult a psychologist or counsellor. Mr Morrison consulted Mr Thatcher, who agreed the applicant should be referred to a psychologist for assessment. The applicant agreed and also signed a consent form in order for the psychologist’s findings to be disclosed to Woolworths. The applicant was stood down on full pay in the meantime.

[24] Mr Morrison’s letter to the psychologist, Ms Waight was expressed in these terms:

‘Following a meeting I had with Mr Ali Azimzadeh [sic] on 11 July 2014 I have serious concerns regarding his mental health and wellbeing. Mr Azimzadeh [sic] has made comments of:
● Two female supervisors (one current - Katey Thomas, one past - Brooke Dew) having hid in the shadows in front of his house at night, with Brooke yelling out “I want you for your behaviour and Katey wants you for your performance - come to bed with us”. This is unfounded.
● Katey has shown her hand, saying that it was the most beautiful part of her body and if Ali put a ring on it she’ll go to bed with him. This is unfounded.
● That Katey has moved into a house next door to Mr Azimzadeh [sic] and has taken photos of him and shared it with others in the workforce. This is unfounded.
● He sees zombies walking around with children.
● These zombies are out to get him and want to see if he abuses children
● These zombies ask him to say hello and hug their children
● These zombies abuse children
● If he is found dead in his house then it was the zombies that got him
● His neighbours bring their children to a tennis court in front of his house and this makes him feel worried as he doesn’t know what to do

Mr Azimzadeh [sic] has a history of making complaints and raising concerns that have been unfounded.

Mr Azimzadeh [sic] stated that he has been in Australia for 7 years and has no family in the country. Mr Azimzadeh [sic] also stated that he has not seen anyone regarding these issues, nor is he taking any medication (apart from antibiotics for a sinus infection).

Due to the issues Mr Azimzadeh [sic] has raised, I have concerns about his continued attendance at the workplace until such time as a Psychological Assessment is conducted. Mr Azimzadeh [sic] is required to attend an appointment with PsychProfessionals and will remain suspended with pay until the assessment has been received back by the Company.’

[25] Mr Morrison received Ms Waight’s report on 22 July 2014. He met the applicant on 29 July (he again declined to have a support person) and told him that ‘the business considered that he was unfit for work and I advised him that in order for the business to facilitate a safe return to work for him, he would be required to attend a further appointment with a GP or psychologist.’ When the applicant refused to obtain a second opinion, Mr Morrison told him that it was a serious matter which threatened his future employment. The applicant maintained his refusal to undergo a second medical assessment. He remained stood down until he was dismissed on 25 August 2014.

[26] Mr Morrison met Ms Thomas again on 29 July 2014 to discuss the applicant’s allegations. While Ms Thomas seemed amused by some of the allegations, because she found them so strange, she appeared stressed at the time.

[27] Mr Morrison attached his handwritten case notes of all the meetings referred to in his statement.

[28] In cross examination, Mr Morrison named some of the persons the applicant had complained about - Alex Alvida, Mark Barclay and Tim Goldsmith. Mr Morrison denied that he cut short the meetings with the applicant when he had wanted to raise additional matters.

[29] Mr Morrison said that his role in relation to the January 2014 safety incident was to assess the grievance of the applicant, not to overturn what the initial investigation had found, which was that the applicant had not immediately reported the safety incident. He upheld the warning issued to the applicant, because it was not about the severity of the penalty, but the fact that he did not report the incident.

[30] Mr Morrison was repeatedly asked what others in management had told him and what he recalled being said in various meetings he had with the applicant and others. The applicant asked Mr Morrison about each of the issues in para [30] above. Mr Morrison was unshakeable in his evidence in this regard. Specifically, Mr Morrison did not believe it made any difference if the applicant had said he ‘saw zombies’, rather than ‘people who looked like zombies’.

[31] Mr Morrison confirmed that he had posted Ms Waight’s report to the applicant. Mr Morrison had not told the applicant that he was paranoid; rather he told him of a summary of Ms Waight’s findings and her recommendations. Mr Morrison confirmed that after hearing of the worrying issues as to child abuse, he was so concerned, he had contacted the local Police.

[32] Mr Morrison reiterated that the applicant had told him that Ms Dew and Ms Thomas had been outside the front of his house and that Ms Thomas was renting a room next to his house, taking photos of him and circulating them by Bluetooth. The applicant had specifically told him:

‘I said no, never. When I said Brooke Dew is around my house I said there was another girl with her, I said I don’t know her, I don’t know her she was just with her, with Brooke, do you remember that?---No. What you did say to me was that Brooke Dew was out the front of your house, she yelled out, “I like you for your behaviour, Katy wants you for your performance, get out of your house and come to bed with us.” That is what you said.’

Mr Frank Fong

[33] Mr Fong was the applicant’s Day Shift Team Leader. He was involved in formal meetings and discussions with the applicant when he was engaged at BRDC.

[34] It was Mr Fong’s evidence that at around 6:00am on 11 July 2014, the applicant came into his office and asked to speak to him privately. He appeared particularly agitated. The applicant informed him of an incident involving another employee, Mr Siolosi Tuli. He had also mentioned ‘zombies’ and people in his neighbourhood suspecting him of abusing children. Around 7:30am, Mr Fong raised his concerns with Mr Morrison.

[35] In a meeting later that day, Mr Fong described the applicant’s body language and demeanour as ‘unsettled’. Mr Fong referred to some, but not all of the matters the applicant raised as identified by Mr Morrison (see para [30] above). I need not repeat them, suffice to note that Mr Fong said he had been concerned for the applicant’s safety and for the possibility of a child being in danger. He also had concerns for the well being of both the applicant and Ms Thomas. He agreed with Mr Morrison that the applicant should attend a psychological assessment.

[36] Mr Fong’s next interaction with the applicant was on 14 August 2014, in relation to the applicant’s inquiry as to his pay, while being suspended. The applicant had told him the visit to Ms Waight was a waste of time and that even she did not know why he was sent to her.

[37] Mr Fong attached case notes of his meetings with the applicant. The notes corroborate Mr Morrison notes and evidence in the proceeding.

[38] In cross examination, Mr Fong recalled that the applicant had mentioned:

• Ms Thomas being outside of his house;



• That people were calling him ‘gay’;



• That Ms Dew was a very good friend of his; and



• Zombies were beings who had no feelings or emotions.

Lee Anne Iredale

[1] Ms Iredale attended a meeting in January 2014 concerning a safety incident involving the applicant and a collision in the workplace. During this meeting, the applicant made comments about, ‘Beat Ali, beat Ali’ and said that people on a tennis court were looking into his house. She had two other meetings with him on 11 February and 9 May 2014.

[2] Ms Iredale was kept appraised of developments with the applicant until she took over the matter when Mr Morrison transferred to Masterton. On 12 August 2014, when she spoke by phone to him, he had told her that Ms Waight’s report contained misleading information and lots of mistakes. Ms Waight had not had regard to all the relevant evidence and had made assumptions. He had also mentioned that he did not make eye contact with her and that she described his body as being ‘rigid’. The consultation was also short. He told Ms Iredale he would not undertake a second assessment, nor undergo any treatment. As a result, Ms Iredale liaised with Mr Thatcher as to the next step to be taken.

[3] Ms Iredale called the applicant back and told him of Woolworths’ decision to require him to undergo a second medical assessment. When he asked if he would lose his job if he did not comply, Ms Iredale said that this was a likely outcome. He told her the direction was not reasonable and that he would contact Ms Waight in order to have her change her report. Ms Iredale asked him to put in writing why he would not agree to a second opinion. He refused to do so and said he had an appointment with a lawyer on 15 August 2014. When Ms Iredale offered him more time to think to think about it, he said he would not be changing his mind.

[4] On 18 August 2014, Ms Iredale sent the applicant a letter asking him to contact her by 21 August, to advise of his willingness to undertake a second assessment and/or undergo treatment. He was warned:

‘If I do not hear from you at all by that time, I will assume that you remain unwilling to undergo the treatment recommended by Ms Waight, in which case the Company will proceed to make a decision about your ongoing employment based on the available information.’

[5] The applicant failed to respond to this letter and was dismissed on 25 August 2014. He was paid entitlements of a gross value of $9,128.65 consisting of:

(a) Two weeks in lieu of notice;

(b) Four rostered days off;

(c) 20 annual leave days.

[6] In cross examination, Ms Iredale recalled Mr Morrison having advised the applicant to go to the Police if people were causing trouble outside his house. Ms Iredale also recalled attending a number of meetings in which she acted as a support person and note taker for management. She could not recall if the applicant had requested confidentiality in any of these meetings.

Mr Ian Thatcher

[7] Mr Thatcher corroborated the evidence of Mr Morrison, Ms Fong and Ms Iredale. He had been consulted in the lead up to the applicant’s dismissal. He had directed Mr Morrison and Ms Iredale as to the actions they took on management’s behalf. I need not repeat it here. Mr Thatcher was not required for cross examination.

Ms Katey Thomas

[8] Ms Thomas gave evidence of her dealings with the applicant as his Team Leader, including his performance review meetings in 2013, meetings concerning the safety incident in January 2014, the applicant’s grievance arising therefrom, his complaint about Mr Armstrong in March 2014, his complaint in May 2014 against Mr Frewan for swearing at him and an incident involving Mr Tuli in July 2014.

[9] Ms Thomas said that she was generally advised by Mr Morrison, on 14 July 2014, of allegations made against her by the applicant. Mr Morrison had reiterated to her the requirement to maintain privacy and confidentiality. Due to safety concerns, Mr Morrison had offered her a security escort in the parking lot, but she declined because she did not want to draw attention to herself.

[10] Subsequently, Ms Thomas asked for an update of what was happening in relation to the applicant. She was told he had been suspended. He had consulted a psychologist, but he did not accept the psychologist’s report. The matter was ongoing. Some time later, she spoke to Ms Michelle Simpsons (HR Specialist) about concerns for her personal safety. She was concerned and stressed by the allegations and was worried that the applicant might turn up at her house. She asked Ms Simpson if she should go to the Police.

[11] On 29 July 2014, Ms Thomas attended a meeting with Mr Morrison and Mr Brett O’Brien ( Assistant Shift Manager) to discuss the applicant’s allegations. She was asked the following questions:

(a) Have you ever taken photos of Mr Azim Zadeh?

(b) Do you know of anyone that does have photos of Azim Zadeh?

(c) Where do you currently live?

(d) Do you know where Mr Azim Zadeh lives?

(e) Have you had any conversations with Mr Azim Zadeh on the floor?

(f) What were these conversations about?

(g) Do you know Ben Trainor?

(h) Have you ever spoken to Mr Azim Zadeh about Ben?

(i) Have you ever shown Mr Azim Zadeh your hand?

(j) Have you ever spoken with Mr Azim Zadeh about how you became a Team Leader or how he could?

(k) Have you spoken to any other team members about Mr Azim Zadeh?

(l) Have you spoken to Mr Azim Zadeh about a ring?

(m) Do you know a team member named Norman?

(n) Have you ever spoken to Norman about Mr Azim Zadeh?

(o) Have you ever told Norman to get Mr Azim Zadeh to swear?

(p) How do you feel having Mr Azim Zadeh work for you?

[12] She denied the allegations made against her and said:

1. She had never sent a text to anyone stating that the applicant was a child abuser.

2. She was unsure as to who Chris from BRDC despatch was.

3. She had never stated to anyone that the applicant looked at children.

4. She did not know the applicant’s Aunty.

5. She did not have any photos of the applicant and had never taken any photos of him.

6. She lived in a different area to the applicant had not rented property in his suburb.

7. She had never asked people to speak with the applicant in relation to loving Australia.

8. She had never held up her hand to the applicant, insisted he look at her fingers and never asked him to put a ring on her finger or anything of that nature.

9. She did not feel comfortable with the applicant working in the workplace after the false allegations he had made. She had felt unsafe outside of the workplace. She had told Mr Simpson that she would like the respondent to contact the Police to advise of these circumstances.

10. She felt she had previously had a good relationship with the applicant. She had praised him for his performance at work. She had not observed him being treated differently or unfavourably in comparison with other employees. She had not witnessed him being bullied or harassed by co-workers.

[13] In cross examination, Ms Thomas denied knowing where the applicant lived until told for the purposes of these proceedings. Ms Thomas did not know why she was asked by Mr Morrison if she knew the applicant’s Aunty. She also denied being told by a team member that ‘Ali smells’.

Ms Catherine Waight

[14] Ms Waight holds a Masters degree in Clinical Psychology and Honours degrees in Behavioural Science. She had not provided any professional services for Woolworths before seeing the applicant and had not provided any other services since. Ms Waight’s conclusions and recommendations were as follows:

‘The contribution of Mr Azim Zadeh’s reported persecutory beliefs in relation to work colleagues, neighbours and ‘zombies’, his irritable mental status presentation and his response behaviour on the DASS-42 questionnaire all support the provision diagnosis of Schizophreniform. The following are the recommendations based on my assessment:

1. Mr Azim Zadeh may benefit from a Psychiatric Assessment for a second opinion on the provisional diagnosis and suggestions for medication if deemed appropriate. Medication may be essential for Mr Aizm [sic] Zadeh to manage his current symptoms at work. To refer him to a Psychiatrist in the local area the easiest option is for Mr Azim Zadeh to book an appointment with his local general practitioner (GP) who can refer him to a Psychiatrist. It may be a good idea to attach a copy of this report to his GP so they understand Mr Azim Zadeh presentation. Dr Ashwani Garg at [address and phone number supplied] bulk bills and may be available to see Mr Azim Zadeh.

2. Psychiatrist appointments can be difficult to get immediately, sometimes taking weeks to get in. In the short term, Mr Azim Zadeh may benefit from engaging in psychological treatment with Ms Tina Laird. Mr Azim Zadeh reported that he has established good rapport with Ms Laird and therefore may be more willing to engage in ongoing treatment with her. Engaging in immediate psychological intervention may help him to manage his current paranoid delusions and therefore help Mr Azim Zadeh in his return to work. Again, to book an appointment with Ms Laird, the easiest option is for Mr Azim Zadeh to talk to his local GP who can refer him under The Better Access in Mental Health Initiative. If you wish to contact Ms Laird, please contact ER Health Clinic on [phone number supplied].

3. Communication recommendations: It is recommended that should Mr Azim Zadeh return to work before engaging in therapy it may be helpful to reframe [sic] from refuting any of Mr Azim Zadeh’s claims as this likely increases his paranoia. Whilst claims of work place harassment should be taken seriously, people suffering from paranoid beliefs often will not change their beliefs despite evidence against their claims. Educating staff on paranoid beliefs may also help employee relations. However, it will be important to do so in a sensitive manner in order not to stigmatise Mr Azim Zadeh current difficulties.

Overall, the consequences of Mr Azim Zadeh’s current presentation seems to have minimal negative impact on his life functioning other than the reported strained employee relations at work. The sooner he engages in psychological treatment and psychiatric assessment for current persecutory delusions, the sooner the disruption at work will be resolved.’

[15] Ms Waight explained that her provisional diagnosis was made after considering reports from Woolworths, reports and assessments of the applicant during the consultation. It was why she recommended a second psychiatric opinion. Ms Waight could not recall telling the applicant that she did not know why he had been referred to her or that she had said, ‘Everything is good and you will get your job back.’ While she sympathised with the applicant, she could never make such promises.

[16] In answer to questions from me about her report, Ms Waight explained that the nil scores (normal) for depression, anxiety and stress were how the applicant presented on the day.

[17] In cross examination, Ms Waight confirmed that she had relied on Mr Morrison’s letter to her (see para [33] above), which referred to the applicant having a history of making complaints and raising concerns that had been unfounded. She later spoke to Mr Morrison to clarify certain information. Ms Waight had agreed with the applicant that earlier consultations with a counsellor were not relevant at that point. The applicant had refused to give her permission to speak to that counsellor.

[18] In respect to questions about ‘zombies’, Ms Waight agreed that a person’s cultural differences could result in misinterpretations of words. This was a reason why she had recommended a second opinion. In order to finalise her report, Ms Waight confirmed that she had phoned the applicant twice after the consultation to ask him some questions. Ms Waight agreed the applicant had contacted her rooms and spoke to the receptionist after he had read her report.

[19] In re-examination, Ms Waight explained that the nil DAS scores, which is a common quantitative test, did not necessarily have anything to do with psychosis. She added:

‘So in my professional opinion someone who had been going through the workplace harassment complaints and also who was on suspended leave, you know, I would expect at least slightly elevated scores. So what that suggests – it’s very common for people with paranoid delusions to believe that they’re fit and healthy and that there’s nothing wrong. So this was just one little piece of evidence supporting the diagnosis.’

SUBMISSIONS

For the applicant

[20] The applicant said it was a pity he had not brought witnesses to testify how poorly he had been treated when he worked at the BLDC. Things were so bad, he had had to go to the doctor. The applicant said that when he went to the BRDC, it was not him who was making the complaints. It was others who complained about him driving the forklift and claiming that he ‘smelled’.

[21] The applicant claimed that he was 100% fit and was sacked for being unfit. The applicant said he had told Mr Fong that he had obtained agency work while he was still suspended. The applicant tendered a handwritten document which indicated his weekly net income from 13 August 2014, when he commenced casual work through an agency. This disclosed as follows:

For the respondent

[22] After setting out the relevant chronology of events by reference to the evidence, the respondent dealt with each of the provisions of s 387 of the Act as follows:

‘Was there a valid reason for dismissal?- s 387(a)

41. Yes.

42. The FWC does not need to determine whether the Applicant's conduct constituted ‘serious misconduct' but rather whether there was a valid reason for the dismissal.

43. The Applicant was dismissed from his employment because he did not comply with the reasonable request of the Respondent to seek a second opinion or undergo medical treatment.

44. The Applicant's non-compliance adversely affected the ability of the Respondent to determine if the Applicant could perform the inherent requirements of his position.

45. The question of whether the Applicant had the capacity to do his job had implications beyond his own health and safety and extended to his co-workers, to whom the Respondent also had a duty. The requests made by the Respondent which would allow it to be confident that the Applicant's return to work would not create a health and safety risk to himself and others could not be construed as an unreasonable direction. Fulfilment of the direction would have enabled the Respondent to comply with its obligations under health and safety 1aws.

46. The Applicant was advised on several occasions that the Respondent may consider terminating his employment on the grounds he could not perform the inherent requirements of his role, yet he failed to engage in any meaningful way with what was a reasonable request that would have enabled the Respondent to make a proper assessment.

47. The Applicant [sic] was entitled to make the assessment it did on the basis of the information it had available to it. The Respondent [sic] did not seek more time to respond and was unequivocal in his refusal to obtain a second opinion or seek medical treatment.

48. The reason for the Applicant's dismissal was sound, defensible and well founded. It was not capricious, fanciful, spiteful or prejudiced. In all the circumstances, it is submitted that there was a valid reason for the Applicant's dismissal.

'Was the Applicant notified of the reason?'- s 382(b)

49. Yes.

50. The Respondent engaged with the Applicant on a number of occasions in respect of Ms Waight's report and advised the Applicant that if he did not seek a second opinion or undergo medical treatment that it may result in the termination of his employment.

51. On 25 August 2014 the Applicant was provided with a letter explaining the basis for his dismissal, effective immediately.

'Was the Applicant given an opportunity to respond to reasons related to capacity or conduct?'- s 387(c)

52. Yes.

53. The Applicant was provided with several opportunities to consider his position in respect of Ms Waight's recommendations including:

(a) During a meeting with Mr Morrison on 29 July 2014;

(b) During a telephone call with Mr Morrison on 30 July 2014;

(c) Following a letter sent to the Applicant on 8 August2}I4;

(d) During a telephone conversation with Ms Iredale on 12 August 2014; and

(e) Following a letter sent to the Applicant on l8 August 2014.

54. Viewed in its entirety the process was procedurally fair. Even if this Commission is persuaded that there were some failings in the process (a finding which is not, in the Respondent's submission, available on the evidence), this does not automatically render the termination harsh, unjust or unreasonable.

55. ln Ainsworth v Criminal Justice Commission it was held that:

'It is not in doubt that where a decision making process involves different steps or stages before a final decision is mode, the requirements of natural justice are satisfied if the 'decision-making process, viewed in its entirety, entails procedural fairness ".(Emphasis added).

56. Further as stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam 'whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'

57. There was no practical injustice to the Applicant in the matter.

58. Further, in Cooper v the Queensland Theatre Company it was held that:

'It must be steadfastly born in mind that the issue is "harsh, unjust or unreasonable". The issue is not whether the steps leading up to the dismissal (or lack of them) were harsh, unjust or unreasonable. Granted that the steps taken, or not taken, prior to dismissal are relevant to the question of whether the dismissal was harsh, unjust or unreasonable, it is illegitimate to separate out what may be described as the procedural aspect of the dismissal and the substantive aspect and proceed on the basis that the dismissal is harsh, unjust or unreasonable if it is either procedurally harsh, unjust or unreasonable or alternatively substantively harsh, unjust or unreasonable. One must always ask the global question whether in all the circumstances, the dismissal is harsh, unjust or unreasonable.’ (Emphasis added) (see also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at pages 430 (per Brennan CJ, Dawson and Toohey JJ) and 464-466 per McHugh and Gummow JJ).

'Was there any unreasonable refusal by the employer to allow a support person?'-s 387(d)

59. No.

60. The Applicant was offered a support person for the l1 July 2014 meeting with Mr Morrison and Mr Fong and subsequent meeting with Mr Morrison and Mr O'Brien on 29 July 2014. The Applicant declined to bring a support person on both occasions.

'Size of the employer's enterprise'- s 387(f) and 'Absence of dedicated human resource management specialists'- s 387(9)

61. The Respondent is a relatively large employer, which does employ human resource specialists.

62. Neither the size of the Respondent's enterprise nor the presence of dedicated human resource staff dictated that a different approach to the process should have been taken. Nor did those factors indicate that the approach which was taken was manifestly unfair or led to an unfair outcome.

63. The process followed in this case was comprehensive, fair and appropriate:

(a) the Applicant received a provisional diagnosis of Schizophreniform Disorder. It was recommended by Ms Waight that the Applicant seek a second opinion and undergo medical treatment. The Applicant attended a meeting with the Respondent during which he was informed of the contents of the report and the recommendations;

(b) the Applicant was invited on numerous occasions to seek a second opinion or undergo medical treatment to enable the Respondent to facilitate his safe return to work;

(c) the Applicant declined to do so or to engage in any meaningful way with the Respondent; and

(d) the Applicant was provided with a written termination letter explaining the reasons for his dismissal.

'Any other matters FWG considers relevant'- s 382(h)

64. The Respondent does not consider that there are any other matters relevant to a consideration of whether the Applicant's dismissal was harsh, unjust or unreasonable.

65. The matters identified by the Applicant as falling within section 387(h) are entirely irrelevant to the matter to be determined. This FWC should not have regard to the events raised by the Applicant including the Applicant's:

(a) allegations of bullying and harassment; or

(b) allegations of safety breaches;

because these are not matters relevant to the Respondent's decision to terminate the Applicant's employment (the reasons for which are clearly set out in the Respondent's letters to the Applicant dated 18 August 2014 and 25 August 2014).

Remedy

66. Under the Act, the remedy is either reinstatement or compensation; however the FWC must not order compensation unless satisfied that reinstatement is 'inappropriate.’ The FWC must consider whether it is 'appropriate' to reinstate - if it is not, then the FWC will only consider compensation.

67. The question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate.

68. Reinstatement is not appropriate in circumstances where the Applicant has demonstrated a failure to comply with the reasonable requests of his employer on a number of occasions. The Applicant's conduct meant that the Respondent could not be satisfied that the safety of the Applicant or his co-workers was not placed at risk if he returned to work.

69. Further, the serious nature of the allegations made by the Applicant against his co-workers (which were found to be unsubstantiated) placed unnecessary stress and anxiety on his co-workers.

70. In the circumstances, the Respondent has lost confidence in the Applicant's ability to carry out his role and it is submitted that reinstatement is therefore not appropriate, nor should the Applicant be compensated for any loss of remuneration.

71. Even if some unfairness was found, it is a case where any award of compensation should be discounted appropriately pursuant to section 392(3) of the FW Act given that the Applicant's conduct directly contributed to (and was the sole reason for) the Respondent's decision to terminate his employment.

72. The application should be dismissed.’

[23] Mr Murdoch developed these submissions in oral submissions and referred particularly to the obligations on employers and employees under the Work Health and Safety Act 2011 (Qld). He emphasised that the evidence disclosed that the respondent is conscientious about both safety and dealing with complaints from employees about mistreatment or harassment. After a thorough investigation, apart from one small incident, none of the applicant’s complaints were found to be substantiated.

[24] Mr Murdoch put that many of the applicant’s complaints were bizarre, extraordinary and implausible. It was little wonder that the respondent was extremely concerned for his own safety and that of its other employees. Mr Murdoch said it was crystal clear from Ms Waight’s report that the applicant could not safely return to work without further investigation and treatment. The applicant stubbornly refused both these recommendations. He clearly understood the implications of doing so. In addition, he refused to provide an explanation as to why he refused to comply with the direction. The applicant was offered numerous opportunities to comply with a lawful and reasonable direction of management.

[25] Mr Murdoch relied on Columbine v The GEO Group Australia Pty Ltd [2014] FWC 6604 (‘Columbine v GEO’), in which an applicant was asked to provide information as to why she was fit for her role, but refused to do so. Bissett C found the applicant’s dismissal was not ‘harsh, unjust or unreasonable’. In that case, the Commission took into account the Company’s obligations under the Occupational Health and Safety Act 2004 (VIC).

CONSIDERATION

[26] I turn now to the provisions of s 387 of the Act.

Was there a valid reason for the applicant’s dismissal (s 387(a))?

[27] The reasons for the applicant’s dismissal are set out in para [2] of this decision. The primary reason, in my view, was the applicant’s refusal to cooperate in obtaining a second opinion as to his medical fitness. Nevertheless, it would follow that had he done so and the second opinion corroborated Ms Waight’s observations, it would have been unlikely the applicant would have been able to meet the inherent requirements of his role.

[28] However, in the context of the particular circumstances of this case, the first reason could not be properly tested by the respondent. Woolworths was entitled to rely on Ms Waight’s preliminary opinion to form the view that the applicant should undergo a second medical assessment. What follows from the primary reason is whether or not the applicant had failed to comply with a lawful and reasonable direction of his employer, by refusing to attend a second medical assessment of his fitness.

[29] The respondent relied, correctly in my opinion, on the Duties of Employers and Workers under the Work Health and Safety Act 2011 (Qld). The relevant sections are as set out below:

19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and

(c) the provision and maintenance of safe systems of work; and

(d) the safe use, handling and storage of plant, structures and substances; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4) If—

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

...

28 Duties of workers

While at work, a worker must—

(a) take reasonable care for his or her own health and safety; and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

[30] Given these statutory obligations, there is no doubt the direction to the applicant to attend a second medical assessment was a lawful direction. However, was it a reasonable direction, and if so, was the applicant’s refusal to comply with it, a valid reason for his dismissal?

[31] In Schreier v Austal Ships Pty Ltd Dec 958/97 S Print P3975, a Full Bench of the Australian Industrial Relations Commission (AIRC) (as the Commission then was), said at page 6:

‘For example it has been held that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [14 September 1995, unreported] Beazley J stated:

"In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct." [Cf: Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J)]

Conversely the failure to follow a lawful instruction which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment: Cox v South Australian Meat Corporation [unreported, 13 June 1995 per von Doussa J].

...

4. A valid reason is one which is sound, defensible or well founded. It must be defensible or justifiable on an objective analysis of the relevant facts: Selvachandran v Peteron Plastics Pty Ltd; Nettlefold v Kym Smoker Pty Ltd; Kerr v. Jaroma Pty Ltd t/as Treasury Motor Lodge. Accordingly the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment: Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries (unreported, 14 September 1995, Beazley J); Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J).

5. The expression `valid reason' in s.170DE(1) imposes a requirement that a termination of employment is not unjust or unfair: Nettlefold v Kym Smoker Pty Ltd. In this regard the reason for the termination must be considered in the context of the penalty of termination. Such a penalty must be proportionate to the reason relied upon: Abdallah v Merino Gold Ltd [unreported, 14 October 1996, Parkinson JR].

6. A reason which is capricious, fanciful, spiteful or prejudiced can never be a valid reason for the purposes of s.170DE(1): Selvachandran v Peteron Plastics Pty Ltd.’

And on page 7:

‘Of particular relevance to this case is the proposition that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. This proposition also accords with authorities dealing with the extent of an employee's obligation to obey lawful orders. The general consensus now is that an employee is only obliged to obey orders which are both lawful and reasonable: Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at 170 per Fox J, with whom Sheppard J agreed (Northrop J not deciding); Bayley v Osborne Izdes v L.G. Bennett & Co. Pty Ltd t/as Alba Industries (1995) 61 IR 439 at 449 per Beazley J.’

[32] In Columbine v GEO, Bissett C, as in this case, was considering a request to an employee to provide medical evidence that she was fit to perform her duties. At paras [43]-[44], the Commissioner said:

‘[43] It is beyond doubt that GEO has an obligation to the health and safety of all of its employees. Ms Columbine gives evidence of COs working in pairs and of providing support and assistance to each other where necessary. Any question of Ms Columbine’s capacity to do her job has implications beyond her own health and safety and extends to her co-workers and to prisoners to whom GEO also has a duty.

[44] A request to Ms Columbine that she assist GEO in reaching the satisfaction necessary for it to be confident that her return to work would not create a health and safety risk to herself and others, in this context, cannot be construed as an unreasonable direction. Fulfilment of the direction would have enabled GEO to comply with its obligations under health and safety laws. The request to Ms Columbine to provide authority for GEO to correspond with Dr Burk is, in this context, a reasonable direction [Footnote omitted].’

[33] It must be emphasised that the issue in this case is not whether the applicant was bullied at work, or that other persons were harassing him at home. I accept that the applicant may have held a genuine belief that this was the case, notwithstanding that a significant proportion of the complaints raised by him were properly investigated by management and found to be unsubstantiated. Moreover, despite being transferred to another location, at his own request, the applicant continued to make complaints about other staff.

[34] The basis of Mr Morrison’s concerns included claims by the applicant that two Team Leaders (Ms Dew and Ms Thomas) would visit his house at night and yell out at him and take photos. Ms Thomas utterly rejected this claim. She insisted that she did not even know where he lived. Another claim was that people at shopping centres were trying to set him up as a child abuser, by putting their children into his path. He also referred to seeing people or had been followed by people who he said ‘looked like zombies’. He later explained that he misunderstood that term and really meant that these people were ‘bogans’.

[35] While I do not wish to comment on every one of the applicant’s worrying complaints, it seems obvious to me that the applicant had delusional thoughts, particularly about Ms Thomas, which the respondent believed were of concern in respect to his own and other employees’ safety. Having received a psychologist’s report which expressly recommended a second psychiatric opinion, the respondent was perfectly entitled - indeed it was obliged - to act on the report and insist that the applicant undergo a second assessment as to his fitness for work. The applicant completely rejected this request and ignored an ultimatum, that if he failed to do so, he would be dismissed.

[36] While the applicant denied some of the specifics, he generally agreed that he had told Mr Morrison things which were bizarre, paranoid and implausible. In my view, the applicant’s claims about Ms Thomas bordered on an obsession with her. Mr Morrison’s opinion was that the applicant should be referred to a medical professional. Given what he was being told, Mr Morrison was plainly not offering an expert opinion. On the contrary, he was merely seeking to have the applicant referred to an appropriate medical professional.

[37] I note that the applicant totally rejected Mr Morrison’s views and Ms Waight’s opinion as to his psychological state. In evidence, he said he would not seek a second opinion, because he did not believe he had a problem. Pointedly, Mr Murdoch asked, if the applicant was so confident that there was nothing wrong with him, what was there to fear by obtaining a second opinion?

[38] The applicant’s evidence was confusing and difficult to reconcile with reality. He heard things that he wanted to hear which were not said and denied things which were said. On the other hand, I found Mr Morrison’s evidence to be sound and credible. He had nothing to gain by making up the matters the applicant raised. I note that Mr Morrison went out of his way to arrange a transfer for the applicant after his first round of complaints about other staff. However, the later claims must have been very unnerving to Mr Morrison. They were so tinged by paranoia and implausibility that it is highly improbable Mr Morrison made them up for the sake of it, just to cast the applicant in a poor light.

[39] Of course, the applicant attempted to draw a distinction between having seen people who ‘were zombies’ and people who ‘looked like zombies’. He was critical of Mr Morrison for noting the former description as a basis for his concerns. However, for the purposes of what was worrying to Mr Morrison, this distinction is irrelevant. It was what the applicant said about people concerning child abuse that was very troubling. In the context of his other bizarre allegations, it obviously raised in Mr Morrison’s mind, the need for the applicant to undergo a psychological assessment.

[40] Given these circumstances, the direction to the applicant to attend a second assessment was a reasonable direction of management. Moreover, the applicant was under no illusion as to what might flow if he failed to comply. He agreed he understood the implications of his refusal to do so. Not only did he refuse to obtain a second assessment, but he confirmed, in his evidence, that he was asked by management to give reasons for his refusal and he would not do so.

[41] Unsurprisingly, the applicant did not accept any of the outcomes of the respondent’s investigations of his complaints. Ms Waight explained this phenomenon as being not unusual. She said: ‘Whilst claims of workplace harassment should be taken seriously, people suffering from paranoid beliefs, often will not change their beliefs, despite evidence against these claims.’

[42] One conundrum in this case is this. If the applicant was unfit for duty, how was it that he obtained agency work, at various workshops, a week before he was dismissed? This question is answered by the evidence that it is common for persons with paranoia to not display any signs of stress, depression or anxiety (see para [66]). They believe they are perfectly healthy. However, given the applicant’s complaint about bullying and harassment and that he was on suspension at the time, it does seem unusual, for a normal person, not to have elevated levels of stress or anxiety. This was confirmed by Ms Waight’s provisional diagnosis of schizophreniform. I have no reason or alternative basis to doubt this conclusion.

[43] That the applicant believed that there was nothing at all wrong with him and that everyone else was to blame for the complaints he had made, was further manifested by his insistence on criticising minor and insignificant discrepancies in the respondent’s evidence. Despite my frequent intervention during the proceedings to have the applicant focus on the relevant issues to be determined in this case, he insisted on challenging all of the outcomes of the earlier investigations into his complaints and to focus on issues which were irrelevant to this case. His cross examination of the respondent’s witnesses was largely an exercise of him arguing with the witnesses or making statements in support of his own case. He focused on insignificant and irrelevant issues, such as who had attended meetings, what their position was, when and how many meetings there were, or who told what, to whom.

[44] On this point (and which well justified my decision to grant permission for Mr Murdoch to appear for Woolworths), I note Mr Murdoch’s very conciliatory and patient approach to the manner in which the applicant conducted his case. Mr Murdoch would have been well entitled to object, on numerous occasions, to the applicant’s questioning of the respondent’s witnesses. Obviously, this would have prolonged the case and could have agitated the applicant. That Mr Murdoch refrained from doing so, was welcome and appreciated by me. He demonstrated a high degree of professionalism, which many legally trained persons bring to the efficient conduct of unfair dismissal proceedings, as envisaged by s 596 of the Act; particularly where the opposing party is unrepresented, and usually ill-equipped to properly conduct their case.

[45] For the foregoing reasons, I am satisfied that there were valid reasons for the applicant’s dismissal.

Whether the person was notified of that reason (s 387(b))

[46] The applicant was made aware of the reasons for his dismissal at least from the time of the meeting with Mr Morrison on 29 July 2014. He was reminded of these reasons in subsequent meetings and conversations with Mr Morrison and Ms Iredale. On 18 August 2014, the applicant was explicitly warned that unless he complied with Woolworths’ direction, his employment would be terminated. It was the applicant’s evidence that throughout this process, he understood the implications of his refusal to comply with the direction.

Whether the person was given an opportunity to respond to reasons related to his conduct (s 387(c))

[47] On the applicant’s own evidence, he was given numerous opportunities to respond to the reasons for his likely dismissal. Without explanation, he stubbornly declined to do so, save for expressing his view that Ms Waight’s report was ‘nonsense’ and there was nothing wrong with him.

Whether there was any unreasonable refusal by the respondent to allow the applicant to have a support person present (s 387(d))

[48] It would appear that the applicant had initially involved the Union in meetings with management over his complaints of bullying and harassment. I accept Mr Morrison’s evidence that the applicant was offered a support person on many occasions, but declined the offer. There was no evidence that the respondent unreasonably or otherwise, refused to allow the applicant to have a support person present at any of the meetings he had with Management. Moreover, the applicant makes no complaint that he was denied such support or representation.

Was the applicant warned about unsatisfactory performance (s 387(e))?

[49] Although this is not a case concerning the applicant’s work performance, there is no doubt that the applicant was warned on numerous occasions of the risks he took by refusing to comply with Woolworths’ lawful and reasonable direction. The view the applicant had that the direction was not reasonable is not accepted. To the contrary, it was the applicant’s conduct which was unreasonable.

The degree to which the size of the respondent’s enterprise and its access to dedicated human resources professionals impacted on the procedures used in effecting the applicant’s dismissal (ss 387(f), (g))

[50] Woolworths is a very large and well resourced employer. However, even bearing this in mind, there was no evidence of the applicant being denied procedural fairness. Rather, I am well satisfied that the respondent’s management exercised considerable restraint and patience in dealing firstly, with the applicant’s complaints of other staff at BLDC by agreeing to his permanent transfer, secondly, Mr Morrison’s handling of his complaints and, thirdly, the process leading to the inevitable termination of the applicant’s employment.

[51] The view the applicant had that the respondent had not properly addressed his complaints is more a complaint that the investigation did not find in the applicant’s favour. Put simply, he did not like the outcomes and would accept nothing less than being completely vindicated. This is not a sound basis for criticising the respondent’s policies for handling complaints or dismissing an employee for failing to comply with a lawful and reasonable direction.

Other relevant matters (s 387(h))

[52] The applicant readily acknowledged that he had obtained casual employment before he was dismissed and while he was still being paid by Woolworths while on suspension. This employment has been ongoing and continuous. While the applicant cannot be criticised for seeking alternative employment, it does raise a question as to the quantum of actual financial loss suffered by him as a result of his dismissal. I accept his disclosed alternative earnings appear to be less than what he earnt at Woolworths. While it is unnecessary for the Commission to make findings as to whether the applicant’s reinstatement would be impractical (had the Commission found the applicant’s dismissal unfair), it would be difficult in the alternative, to imagine any financial compensation being ordered by the Commission, pursuant to s 394 of the Act.

CONCLUSION

[53] For the reasons herein expressed, I am satisfied that there were valid reasons for the applicant’s dismissal. There are no other factors, pursuant to s 387 of the Act, which would satisfy me that the applicant’s dismissal was ‘harsh, unjust or unreasonable’, either substantively or procedurally. The application must be dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person

Mr C J Murdoch of Counsel for the respondent.

Hearing details:

2015:

Brisbane

19, 20 January

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