| [2017] FWC 175 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sao Duarte
v
The Paraplegic & Quadriplegic Association of NSW
(U2016/10664)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 20 JANUARY 2017 |
Application for relief from unfair dismissal - valid reason - capacity
[1] Ms Sao Valadao Duarte was employed by the Paraplegic and Quadriplegic Association of NSW, trading as ParaQuad Pty Ltd (ParaQuad) from 25 June 2009 until she was dismissed on 8 August 2016.
[2] Ms Duarte was initially employed by ParaQuad as a Personal Care Assistant and acquired additional duties as an After Hours Coordinator on 2 September 2011.
[3] In May 2016 Ms Duarte lodged a worker’s compensation claim in relation to her alleged psychological injuries. The claim was managed by ParaQuad’s worker’s compensation insurer, QBE. Liability for the claim was denied by QBE on 20 June 2016.
[4] On 8 August 2016 Ms Duarte was dismissed by way of a letter sent by both email and post (with two errors in the letter being corrected on 10 August 2016). The letter stated that Ms Duarte’s employment was terminated on the basis of her incapacity to carry out the inherent requirements of both positions she held with ParaQuad. 1
[5] Ms Duarte says that she was unfairly dismissed by ParaQuad. She says that that ParaQuad did not have a valid reason to dismiss her. The remedy she seeks is compensation.
[6] With permission, Ms Duarte was represented at hearing by Mr Hakkinen and ParaQuad was represented by Mr Borrow. Ms Duarte gave evidence on her own behalf. Evidence was given for ParaQuad by Ms Karen Griggs, Human Resources Manager.
[7] No expert medical evidence was given on behalf of either party at hearing. However I have taken into account written documents, including a medical report provided by a consultant psychiatrist at the request of ParaQuad on 18 July 2016, the medical opinion of Ms Duarte’s treating doctor and the oral evidence of Ms Duarte and Ms Griggs.
[8] The expert medical report of the consultant psychiatrist, Dr Michael Prior, concluded, in short, that Ms Duarte was not at that time capable of carrying out the inherent requirements of her roles, even if modifications were made. However Dr Prior concluded that Ms Duarte’s long-term prognosis was good.
[9] I am satisfied that Ms Duarte was, at the time of her dismissal, unable to perform the inherent requirements of her roles as a Personal Care Assistant and After Hours Coordinator. For the reasons set out below I have decided that Ms Duarte was not unfairly dismissed.
[10] Before I turn to considering whether Ms Duarte was unfairly dismissed there are some initial matters that I must address pursuant to sections 396 and 385 of the Fair Work Act 2009 (the Act).
[11] I am satisfied Ms Duarte made her application within 21 days after the dismissal took effect, as required by subsection 394(2)(a) of the Act.
[12] I am satisfied Ms Duarte is a person who was protected from unfair dismissal under section 382 of the Act. Ms Duarte had completed a period of employment with ParaQuad greater than the minimum required period. As ParaQuad is not a small business employer, that minimum period is 6 months. Therefore Ms Duarte’s application also satisfies subsection 382(b) of the Act.
[13] As ParaQuad was not a small business employer it is not relevant for me to consider whether Ms Duarte’s dismissal was consistent with the Small Business Fair Dismissal Code.
[14] There is no suggestion that Ms Duarte’s dismissal was a case of genuine redundancy.
[15] Therefore, having considered subsections 396(a) to (d) of the Act I conclude that they present no impediment to me considering the merits of Ms Duarte’s case.
[16] Turning to section 385 of the Act, it is agreed between the parties that Ms Duarte’s employment was terminated on the initiative of ParaQuad. That is, Ms Duarte was dismissed within the meaning of subsection 386(1)(a) of the Act. As mentioned above, the Small Business Fair Dismissal Code does not apply and Ms Duarte’s dismissal was not a case of genuine redundancy.
[17] That being the case it remains for me to consider whether ParaQuad’s dismissal of Ms Duarte was harsh, unjust or unreasonable.
[18] Ms Duarte gave evidence that she had begun to experience difficulties in her workplace in 2013 or 2014. These problems included complaints being made about her behaviour at work and difficulties with her supervisor. 2
[19] Ms Duarte says that she became aware of symptoms including numbness around her mouth, dizziness, body aches and “general sickness” around 7 December 2015 after attending her local doctor. 3
[20] Ms Duarte says that subsequently various tests were carried out which did not reveal any physical problems. In February 2016 she was advised by her doctor to take some stress leave or go on a holiday.
[21] On 21 March 2016 Ms Duarte sent an email of one and a half pages to Max Bosotti, the CEO of ParaQuad. 4 Ms Duarte raised a number of issues in the email, relating to particular events she says occurred between 8 December 2015 and 6 January 2016 involving other members of staff as a result of which Ms Duarte felt that her work performance and health were adversely affected.
[22] Mr Bosotti replied briefly the following day thanking Ms Duarte for her bringing her concerns to him and noting only that he would be monitoring the situation.
[23] On 21 April 2016 Ms Duarte was advised by way of a letter sent by email from Ms Grigg that she was required to attend a fact finding meeting on 28 April 2016 in relation to allegations she had altered the Webster pack of a client without the authorisation to do so.
[24] It appears that Ms Duarte forwarded this email from Ms Grigg to Mr Bosotti and requested an urgent out of office meeting with him. 5 She told Mr Bosotti that the proposed fact finding meeting was an attempt to “incriminate” her. Mr Bosotti replied to Ms Duarte the following day stating that she would first need to have a discussion with her immediate supervisor and that if there were “serious unresolved issues following that conversation” he would “certainly entertain” speaking with her, but not before.
[25] The fact finding meeting went ahead on 28 April 2016.
[26] Except for attending a meeting on 5 May 2016 Ms Duarte was then absent from work from 28 April 2016 up until the time of her dismissal. Ms Duarte says she had to take time off work due to her workplace injury and the exacerbation of her symptoms due to bullying she says she was experiencing at work. 6
[27] The meeting on 5 May 2016 was a disciplinary meeting at which Ms Duarte was issued with a written warning relating to the unauthorised alteration of the Webster pack.
[28] As noted above, Ms Duarte lodged a worker’s compensation claim in relation to her alleged psychological injuries in May 2016. It seems this application was lodged some days after the meeting on 5 May 2016.
[29] While the worker’s compensation claim form itself wasn’t provided by either party in the proceedings, the Commission was provided with a number of WorkCover NSW certificates of capacity completed by Ms Duarte’s treating doctor, Dr Jennifer Rusli. 7 The earliest certificate of capacity is dated 10 May 2016 and lists Ms Duarte’s injury as “stress, anxiety”. Ms Duarte was certified by Dr Rusli as unfit for work from 9 May 2016 to 17 May 2016.
[30] Subsequent WorkCover certificates of capacity certified Ms Duarte unfit for work contiguously through until 30 June 2016. Dr Rusli then provided medical certificates certifying Ms Duarte unfit for work from 27 June 2016 to 2 August 2016.
[31] On 1 June 2016 Ms Duarte attended a medico legal appointment with Dr Leonard Lee, psychiatrist, at the request of QBE. Dr Lee produced a report that was provided to QBE however a full copy of that report was not available for the purposes of these proceedings.
[32] On 20 June 2016 QBE issued a Section 74 Notice declining liability for Ms Duarte’s claim on the basis that she had not suffered an injury within the meaning of the relevant workers compensation legislation and that her employment was not a substantial contributing factor to her injury.
[33] On 15 July 2016 Ms Duarte attended an appointment with consultant psychiatrist Dr Michael Prior at the request of ParaQuad. As already noted, Dr Prior produced a report dated 18 July 2016, the details of which will be discussed further below.
[34] On 29 July 2016 a show cause letter was sent to Ms Duarte noting that Dr Prior had concluded that she was unable to carry out the inherent requirements of role as a Personal care Assistant and that she would be unlikely to return to either role. The letter requested that Ms Duarte present any evidence by 5 August 2016 as to why her employment should not be terminated on the basis of incapacity.
[35] Ms Duarte did not respond to the letter of 29 July 2016. She says she received the letter on 1 August 2016 and was “paralysed with indecision” as a result of stress and anxiety provoked by the letter and could not prepare a written response. 8
[36] On 8 August 2016 Ms Grigg sent a letter to Ms Duarte advising that her employment was terminated from that date on the basis of the opinion of Dr Prior. That letter was later corrected to reflect the correct amount of payment in lieu of notice and a typographical error in relation to the date.
[37] Ms Grigg confirmed that the decision to terminate Ms Duarte’s employment was made by her, and that in doing so she had consulted Mr Bosotti and Chief Operating Officer, Martin Gardiner.
[38] It was apparent from the evidence before me at the hearing that Ms Duarte had only lodged an application for review of the decision of QBE to decline liability for her alleged workplace injury a short time before the hearing in this matter. It was agreed between the parties that no review had been lodged at the time Ms Duarte was dismissed.
[39] In considering whether Ms Duarte’s dismissal was harsh, unjust or unreasonable I must take into account the factors contained in subsections 387(a) to (h) of the Act. These factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out, and thirdly to any other matters that the Commission regards as relevant to its consideration.
[40] I will deal with each in turn.
[41] ParaQuad contends that the only reason for the dismissal of Ms Duarte was her capacity to perform her job as a result of her psychological illness and that performance or conduct was not considered. 9 Ms Grigg stated that the decision to dismiss Ms Duarte was solely based on the medical evidence available, namely the report of Dr Prior.10
[42] Ms Duarte claims that she was subjected to bullying over a significant period of time leading up to her dismissal. This was articulated somewhat in her witness statement and alluded to during the evidence she gave at the hearing.
[43] Ms Duarte says that once one or two weeks had passed after she sent the email of 21 March 2016 to Mr Bosotti she realised that she was not going to get any help. She said that she had been hoping to receive a call back or some type of follow up, particularly as she had stated that she felt the issues she had brought up in the email were affecting her performance. Ms Duarte says that she felt she was being targeted by the fact finding meeting of 28 April 2016 and that she “was being groomed for dismissal”. 11
[44] However Ms Duarte does not refute ParaQuad’s assertion that she was not able to perform the inherent requirements of her job at the time of Dr Prior’s report. She accepted that Dr Prior had drawn the conclusion that she was not capable of performing the inherent requirements of her job at the time of his examination. 12 Ms Duarte gave evidence that she agreed that she would not have been able to undertake her role in the short term and that it took her a while before she could see a change in her depression and panic attacks.13
[45] Ms Duarte says that she recalled being asked by the doctor whether she thought the provision of any services might allow her to do her job again and she says she told him “that at that stage I couldn’t imagine it”. 14
[46] Ms Grigg maintained in cross examination that she was unaware of any claims of bullying or harassment made by Ms Duarte at the time she terminated Ms Duarte’s employment, including the email to Mr Bosotti of 21 March 2016. 15 She states that she only became aware of that email as a result of the attempted conciliation of this matter in the Commission.16
[47] Ms Grigg stated that after receiving the report of Dr Prior (which made references to alleged bullying) she conducted a “fulsome” review of Ms Duarte’s employment records and satisfied herself that Ms Duarte had “not followed the grievance process” 17 and that her file demonstrated that she had never lodged a formal complaint.
[48] The show cause letter dated 29 July 2016 sent by Ms Grigg to Ms Duarte stated, relevantly:
“I am in receipt of the summary of your Independent Medical Assessment dated 18th July 2016 report by Dr Michael Prior from Medico Legal opinions.
The report states that you are currently not able to carry out the inherent requirements of your substantive role as Personal Care Assistant, either with or without reasonable accommodation.
The report also states that it is unlikely you will be able to return to duties of a Personal Care Assistant or After Hours Coordinator. The report also contained:-
Based on this report, we now require you to show cause as to why your employment should not be terminated for reason of your incapacity. Any evidence you may present will be carefully considered and should be provided to the undersigned by no later than Friday, 5th August 2016.
Should we not receive anything from you by that date, we will have no alternative but to terminate your employment with ParaQuad NSW based on the information provided in the summary report from Dr Prior.”
[49] The letter of termination dated 8 August sent by Ms Grigg to Ms Duarte stated, relevantly:
“We confirm that we have not received any further information from you as at the date of this letter. Consequently, you have not provided any compelling reason for us to alter our decision to proceed with the termination of your employment. That decision is based upon the professional assessment provided to us by Dr Michael Prior, Consultant Psychiatrist for Medico Legal Opinions, dated 18th July 2016.
Your employment with ParaQuad NSW is terminated for reason of your incapacity, effective from 8th August 2016.”
[50] I am satisfied that the reason for Ms Duarte’s dismissal related to her capacity to perform her job. This would remain the case even if it was clear from the available evidence that the psychological condition that caused Ms Duarte’s incapacity arose due to bullying in the workplace. I note that I am not able to draw that conclusion on the basis of the evidence before me. Capacity means the ability of the employee to do the work he or she was employed to do. 18 It appears clear that in dismissing Ms Duarte ParaQuad acted on the contents of Dr Prior’s report.
[51] I find that the reason stated in the show cause and termination letters (namely incapacity) was the reason that ParaQuad terminated Ms Duarte’s employment.
[52] It is well established that a valid reason is one that is sound, defensible or well founded. A reason must also be valid in the context of the employee’s capacity or based on the operational requirements of the employer’s business. 19 The provisions must be applied in a common sense way to ensure the employer and employee are each fairly treated.20
[53] It has previously been stated by a Full Bench of Fair Work Australia that an inability to perform the inherent requirements of a role will generally be a valid reason for dismissal, however this may not always be the case. 21
[54] In order to properly consider whether the reason was sound, defensible or well-founded I have:
a) Identified Ms Duarte’s job;
b) Identified the relevant inherent requirements of Ms Duarte’s job;
c) Considered the medical opinions upon which ParaQuad concluded that Ms Duarte could not perform the inherent requirements of her role;
d) Considered whether the reason for dismissal was properly founded upon the medical opinion;
e) Considered whether ParaQuad could have made reasonable adjustments for Ms Duarte
[55] It was common ground between the parties that at the time of her dismissal Ms Duarte held two positions at ParaQuad; Personal Care Assistant and After Hours Coordinator.
[56] While there was some confusion at hearing about the actual spread of hours and work arrangements for Ms Duarte ultimately nothing turns on these issues.
What were the inherent requirements of Ms Duarte’s job?
[57] The inherent requirements of a job are the essential features of the job without which the job would not be essentially the same. 22
[58] No job description for either of Ms Duarte’s positions was provided by the parties.
[59] In her statement Ms Duarte describe her duties as Personal Care Assistant as:
“providing everyday care to patients including getting patients up in the morning and putting them to bed at night, showering/bathing them, up, meal preparation, taking them on outings and to doctors’ visits and doing shopping for them.” 23
[60] Ms Grigg confirmed that ParaQuad provides care to people with spinal cord injuries in their homes and that Ms Duarte had not worked at the one residential care facility run by the company.
[61] In her email to Dr Prior requesting a medico legal report from him, Ms Grigg described Ms Duarte’s duties as providing daily care to clients, inclusive of grooming, bowel care and feeding. Ms Grigg stated that the role required the person performing it to be alert and to know what do to in an emergency situation as client’s often experienced complications related to their injuries. 24
[62] I am satisfied that the inherent requirements of Ms Duarte’s job as a Personal Care Assistant comprised of providing daily care of a personal nature to clients with significant disabilities.
[63] In her statement Ms Duarte also described her duties as an Emergency Coordinator (rather than an After Hours Care Coordinator) as follows:
“Being a reference point for problem solving with the rostered services, additional services as needed by clients, replacing staff unable to abide to their rosters for various reasons or rostering related issues, coordinating care for specific patient needs and responding to patient and carer incidents.” 25
[64] Ms Duarte also noted that the role required being constantly on call which she said could be stressful.
[65] Ms Grigg described the role of After Hours Coordinator as operating between normal business hours to respond to circumstances where a carer called to advise they were sick. In that situation the After Hours Coordinator would take the call and arrange for someone else to fill the shift. 26
[66] I am satisfied the Emergency Coordinator role referred to by Ms Duarte is in fact the After Hours Coordinator role (there was no dispute at hearing that different roles were being referred to). I find that the inherent requirements of the role were to respond to calls after hours, with the predominant purpose of resolving rostering issues that arose during that time.
Medical reports
[67] As noted above, Ms Duarte underwent a medico legal assessment with Dr Lee at the request of QBE.
[68] Importantly, Dr Lee’s subsequent report was not provided in full to ParaQuad, rather an extract of the report was sent in an email to Ms Grigg on 30 June 2016. No copy of the report was provided to the Commission.
[69] I note that the extract of the report provided indicates that Dr Lee considered Ms Duarte was exaggerating her symptoms, probably as a result of performance appraisal. The report indicates that Ms Duarte told Dr Lee she was being bullied and unfairly criticised for her performance. Dr Lee did not consider there was any evidence Ms Duarte was unfit to return to her pre injury duties and found the scope of her employment would not be permanently affected.
[70] However as the complete original report was not available I cannot place any substantial weight on the opinion of Dr Lee. I accept that ParaQuad were not provided with the original report and so found it necessary to commission the report from Dr Prior. I accept Ms Grigg’s evidence that ParaQuad requested a report from Dr Prior to attempt to resolve the conflict between the medical certificates provided by Dr Rusli stating that Ms Duarte was not fit for work and the findings of Dr Lee. 27
[71] It is apparent from Dr Prior’s report that Ms Duarte reported problems in her workplace including accusations being made about her behaviour in 2013 and 2014, difficulties with a supervisor and more recently, a series of fact finding meetings which she felt targeted by.
[72] Dr Prior recorded that at the time of examination Ms Duarte had recently commenced treatment with a psychiatrist and had also been consulting a psychologist for about 6 weeks. Dr Prior also noted the WorkCover certificates completed by Dr Rusli and the summary of the report of Dr Lee he had received.
[73] Ms Duarte reported the onset of symptomology in December 2015 with no significant periods of remission. Ms Duarte described her symptoms as being down, teary and feeling hopeless. She also described anxiety-related symptoms, subjective cognitive difficulties, difficulties sleeping and panic attacks two to three times per week.
[74] When asked by Dr Prior why she stopped work, Ms Duarte said she was very uncertain about everything, was having panic attacks about going to work, was anxious about her performance and kept questioning herself. She stated she had not been able to return to work because she was not confident, stressed about and could not think properly.
[75] Dr Prior considered the history he obtained from Ms Duarte was consistent with the non-specific terms of “stress, anxiety” mentioned in the WorkCover Certificates of capacity of Dr Rusli. Dr Prior diagnosed Ms Duarte as suffering Major Depressive Disorder with secondary panic phenomenology and secondary mild Alcohol Use Disorder.
[76] Dr Prior states that he based his opinion on the mental status examination, the history elicited, his reading of the background material provided (which included Ms Duarte’s position description), and the diagnostic criteria.
[77] Dr Prior then addressed specific questions asked of him by ParaQuad. The following are of most relevance:
“2. Is Sao capable to carry out the inherent requirements of the Personal Care Assistant/After Hours Coordinator as described in the position description attached, without adjustment?
Ms Duarte is not currently capable of carrying out the inherent requirements of Personal Care Assistant/After Hours Coordinator as described in the position descriptions attached.
3. If the response to the preceding question is negative, would Sao be capable of able [sic] to carry out the inherent requirements of the Personal Care Assistant/After Hours Coordinator role (as described) with either:-
(a) modification of the role, or
(b) the provision of any facilities or services allow him [sic] to do so?
Even with modifications to the role and provision of facilities or services to aid her, she would still currently not be able to carry out the inherent requirements of the roles of Personal Care Assistant/After Hours Coordinator.
…
6. Please provide a short and long term prognosis, and advise whether, in your opinion, Sao is more likely than not be capable of carry [sic] out the duties the role [sic] of Personal care Assistant/After Hours Coordinator (as described), either with or without accommodation and how long the accommodation will be required for and when she will be likely to return to her Pre Injury Role?
Ms Duarte’s prognosis is good, given that she is now under the care of a treating psychiatrist and has been commenced on appropriate antidepressant medication. She is likely to start improving over the next few weeks and months. Her long-term prognosis for full remission form her Major Depressive Episode is good.
When her Major Depressive Episode fully remits, which it is likely to do with appropriate aggressive antidepressant medication, it is more likely than not that she will at that stage be able to carry out the duties of the roles of Personal Care Assistant /After Hours Coordinator.
After her Major Depressive Disorder has remitted, it would be prudent that she was not exposed to the same stressors that she identified in section A3 above related to the particular supervisor. It is possible that if re-exposed to the same kind of stressors, even after she has recovered from her current episode of Major Depression, this would cause a relapse.
[78] Ms Duarte also provided a report of Dr Rusli. Dr Rusli indicated that she considered Ms Duarte totally incapacitated for work at ParaQuad, owing to the psychological injury she suffered as a result of working there. Dr Rusli recommended that Ms Duarte not return to ParaQuad indefinitely due to the stress and anxiety she experienced. However Dr Rusli considered Ms Duarte would make a close to full recovery over the following year.
[79] However, Dr Rusli’s report is dated 27 September 2016 and was thus prepared after Ms Duarte had been dismissed. There is therefore no suggestion it was available to ParaQuad at the time the decision was made to dismiss Ms Duarte. In any event, Dr Rusli’s opinion supports ParaQuad’s reason of incapacity.
[80] Recently, in Lion Dairy and Drinks Milk Limited v Peter Norman 28 a Full Bench of the Commission summarised the principles to be applied when determining whether there was a valid reason for terminations related to incapacity.29 The Full Bench conducted a review of the relevant authorities and noted that in such cases employers are usually required to have regard to expert opinion rather than making their own assessment of what is essentially a medical question. When considering cases where capacity is in issue the Commission should have regard to the medical opinions that existed at the time of the decision to dismiss.30
[81] At the time of the decision to dismiss, in terms of medical opinion, ParaQuad had available to them WorkCover certificates of capacity, medical certificates, an extract of the report of Dr Lee and the report of Dr Prior.
[82] It seems uncontroversial that the opinion of Dr Prior was the most comprehensive medical opinion available to ParaQuad at the time of Ms Duarte’s dismissal. Dr Prior was clear in his view that Ms Duarte was not, at the time he examined her, capable of performing the inherent requirements of her two roles. The WorkCover Certificates and medical certificates of Dr Rusli which had certified Ms Duarte as unfit for work for almost 3 months supported the opinion of Dr Prior.
[83] It is true that ParaQuad also had available to them what can best be described as a partial, competing, opinion of Dr Lee.
[84] This left ParaQuad with competing medical opinions they were required to weigh up.
[85] I consider it was not unreasonable for ParaQuad to weigh the competing medical opinions and prefer the findings of Dr Prior. In particular, the full report of Dr Prior was available to them and they were aware of the documents on which the doctor had based his opinions (which included Ms Duarte’s job descriptions). It is also relevant that Ms Duarte had not been at work for more than three months and her treating doctor had continued to determine that she was unfit for work. Once in receipt of Dr Prior’s report it was not unreasonable for ParaQuad to base their decision on his opinion.
[86] Mr Hakkinen submits that Ms Duarte was dismissed without a valid reason, in part because Dr Prior’s report is suggestive of a likely return to full duties in the short to medium term.
[87] However I note that Dr Prior determined Ms Duarte was likely to start improving over the next few weeks and months, not (my emphasis) that she would be able to return to her duties in that time. The doctor considered that it was only with the full remission of Ms Duarte’s Major Depressive Episode - which was her long-term prognosis - that she would be likely to be able to carry out her two roles at ParaQuad.
[88] Accordingly it is reasonable to conclude that at the time of Ms Duarte’s dismissal (occurring only three weeks after the report of Dr Prior) it was not likely she would return to her duties in the short to medium term and would only be likely to be able to do so in the long term.
[89] I therefore consider that ParaQuad’s reason for dismissing Ms Duarte was properly founded on the medical evidence.
[90] In the case of Jetstar Airways Pty Limited v Neetson-Lemkes 31 the Full Bench said:
“…Section 387(a) therefore requires the Commissioner to consider and make findings as to whether, at the time of dismissal, Ms Neetson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her an, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her.”
[91] It is clear that the requirement to consider whether reasonable adjustments may be made to a person’s role in order to accommodate incapacity requires a consideration of the substantive position or role, not a position or role that has been modified or restricted. 32
[92] Dr Prior clearly concluded that even with modifications and the provision of facilities and services to assist, Ms Duarte would not be able to carry out the inherent requirements of the role. This was noted in the show cause letter ParaQuad sent to Ms Duarte.
[93] I also note that unfortunately, in a practical sense, as Ms Duarte had limited communication with ParaQuad and had not returned to work at any stage, it would have been difficult for ParaQuad to make an assessment of any changes that could be made to Ms Duarte’s substantive roles.
[94] In the circumstances it was understandable that ParaQuad did not make or consider making reasonable adjustments for Ms Duarte.
Conclusion
[95] It was not unreasonable for ParaQuad to accept Dr Prior’s opinion that Ms Duarte was not capable of carrying out the inherent requirements of her two roles in at least the short to medium term and terminate her employment for that reason. I consider that the reason ParaQuad dismissed Ms Duarte was sound, defensible and well founded and therefore valid.
Was Ms Duarte notified of the reason?
[96] It appears that the only direct correspondence between Ms Duarte and ParaQuad that took place between the disciplinary meeting of 5 May 2016 and the sending of the show cause letter on 29 July 2016 related to the request and arrangements for Ms Duarte to attend Dr Prior. Throughout this period Ms Duarte remained on leave without pay. It is also not clear whether Ms Duarte was, at the time she received the show cause letter, in receipt of the actual report of Dr Prior. However, I consider the show cause letter (as set out above) is a fair summary of the conclusions of Dr Prior, on which ParaQuad based its decision to terminate Ms Duarte. I conclude that Ms Duarte was notified of the reason.
[97] Ms Duarte was given an opportunity to respond to ParaQuad when she was asked to provide any evidence which might alter their decision by 5 August 2016. Although there is some dispute about the date on which Ms Duarte received the show cause letter, it is clear she had several days to respond to ParaQuad. Although the specified response period may not have been enough time for Ms Duarte to obtain competing medical evidence had she wished to do so, at no stage did she contact ParaQuad to indicate she disagreed with their decision. Indeed, Ms Duarte did not in fact disagree with the medical opinion on which ParaQuad relied in terminating her employment.
Did ParaQuad unreasonably refuse to allow Ms Duarte to have a support person present to assist at any discussion in relation to her dismissal?
[98] The circumstances in this matter are somewhat unusual in that there was no face to face meeting about the prospect of Ms Duarte’s dismissal. However, this must be seen in the context of Ms Duarte having been absent from work (and, it would appear, largely out of contact) for over three months. At the time ParaQuad issued the show cause letter Ms Duarte was still certified unfit for work by Dr Rusli so arguably it would not have been appropriate for ParaQuad to request her attendance at a meeting.
[99] Accordingly Ms Duarte was not unreasonably refused a support person at any stage of her dismissal.
Was Ms Duarte warned about unsatisfactory performance before the dismissal?
[100] The reason for Ms Duarte’s dismissal related to her ability to perform the inherent requirements of her job. Although ParaQuad provided material to the Commission which related to issues of performance during Ms Duarte’s employment (one of which I note was found to be unsubstantiated) they did not rely on unsatisfactory performance in dismissing Ms Duarte. This factor is more appropriate to be considered when an employee is underperforming in their role and could reasonably be expected to improve his or her performance when his underperformance is pointed out, often with guidance and training. In circumstances where the reason for dismissal was inability to perform two roles I do not consider this factor is relevant.
Did the size of ParaQuad impact upon the procedures followed in effecting Ms Duarte’s dismissal.
[101] ParaQuad is not a small business. The number of employees at ParaQuad was not provided to the Commission however the 2014-15 Annual Report records revenue of $53,838,161 and employee expense of $15,332,382. Accordingly I do not consider this factor is relevant.
Did the absence of human resource management specialist or expertise impact on the procedures followed in effecting Ms Duarte’s dismissal?
[102] It was clear from the evidence that Ms Grigg, a dedicated human resources manager, coordinated the process around Ms Duarte’s dismissal. I have also not identified any procedural deficiencies in effecting Ms Duarte’s dismissal. Accordingly I do not consider this factor is relevant.
Conclusion about procedural fairness
[103] ParaQuad accorded Ms Duarte procedural fairness throughout the process of dismissal. None of the factors above weigh in favour of Ms Duarte’s dismissal being considered unfair.
Other matters
Are there any other relevant matters?
[104] I have accepted that ParaQuad, relying on the opinion of Dr Prior, dismissed Ms Duarte for a valid reason on the basis of her incapacity. However, it should not be overlooked that Dr Prior also found that the cause of Ms Duarte’s psychiatric diagnoses “was the situation in the workplace” as described to him. Dr Prior also considered that even once she had reached remission “it would be prudent” that Ms Duarte not be exposed to these workplace stressors as this may cause a relapse.
[105] Despite this clear finding by Dr Prior, Ms Grigg did not undertake a thorough investigation of these issues upon receiving the report. Ms Grigg stated that she spoke to “a few of the other staff members” who advised her that the bullying alleged by Ms Duarte had not occurred. 33 It is not clear whether this occurred before or after Ms Duarte was dismissed.
[106] Ms Grigg also stated that she reviewed Ms Duarte’s file and satisfied herself that Ms Duarte had not been bullied in the workplace. 34 Again it is not clear from the evidence whether this occurred before or after Ms Duarte was dismissed. Ms Grigg stated at one point in her evidence that she reviewed Ms Duarte’s records “for this case”35 indicating this might only have been done after this application had been lodged.
[107] Regrettably, after receiving Dr Prior’s report, Ms Grigg, now aware of a number of allegations made by Ms Duarte, did not attempt to extend a conciliatory hand (by, for example, offering to have a conversation with Ms Duarte) but rather simply advised Ms Duarte she would be terminated.
[108] The failure of Mr Bosotti to take appropriate action in relation to the issues raised in her email of 21 March 2016 is also regrettable. Despite the delay between the events Ms Duarte complained of and her email, appropriate action would certainly have involved Mr Bosotti referring the email to Human Resources which he did not do. Instead Mr Bosotti responded simply to note he would be monitoring the situation. It is not clear whether he did in fact take any steps to do so. In my view this was an inadequate response to the concerns raised by Ms Duarte.
[109] Ms Grigg effectively asserted that there was no bullying or harassment problem because Ms Duarte had not followed the correct grievance process. I consider that this approach is form over substance. It is of course preferable for an employee to follow workplace protocol when making allegations of harassment. However bullying can clearly occur and not be the subject of complaint. The art of good human resource practice includes responding to signals as well as addressing issues raised through formal channels. Arguably Dr Prior’s report was more than a signal.
[110] I am not able to make any finding about whether Ms Duarte was bullied. If she was bullied and this led to her incapacity and subsequent dismissal it would certainly be a factor that weighed in favour of her dismissal being considered harsh. However the evidence before me was not sufficient to come to a conclusion.
[111] Therefore I do not consider ParaQuad’s response to Ms Duarte’s assertions in relation to bullying outweigh my conclusion that ParaQuad had a valid reason for dismissing Ms Duarte and afforded her procedural fairness.
[112] I note that Ms Duarte is now pursuing a review of the decision of QBE to deny liability for her claim. It seems this may be the most appropriate forum for Ms Duarte to air her grievances about alleged bullying during her employment with ParaQuad.
[113] I have found there was a valid reason for ParaQuad to dismiss Ms Duarte, namely that she was unable to undertake the inherent requirements of her job as a result of incapacity. I have found that ParaQuad afforded Ms Duarte procedural fairness throughout the process of dismissal. Although I consider that it is unfortunate that ParaQuad did not seek to address the Ms Duarte’s allegations as to the reasons for her incapacity in any substantial way this is ultimately a question of good employment practice and does not outweigh Ms Duarte’s inability to carry out the inherent requirements of her job. I find that ParaQuad’s decision to dismiss Ms Duarte was not harsh, unjust or unreasonable. I find that Ms Duarte was not unfairly dismissed. Her application is dismissed. I so Order.
DEPUTY PRESIDENT
Appearances:
T Hakkinen, Unfair Dismissals, for the Applicant.
S Borrows, Leana Street Consulting, for the Respondent.
Hearing details:
20 December 2016, Sydney.
1 Exhibit B1, Witness statement of Karen Grigg, Annexure Q
2 Exhibit H1, Witness statement of Sao Duarte, paragraphs 12 and 13
3 Exhibit H1, Witness statement of Sao Duarte paragraphs 25 and 26; Transcript PN 102 - PN 104
4 Annexure to Applicant’s Outline of Submissions, 18 November 2016
5 Exhibit B1, Witness statement of Karen Grigg, page 42
6 Exhibit H1, Witness statement of Sao Duarte paragraph 31
7 Exhibit B1, Witness statement of Karen Grigg, Annexure J
8 Exhibit H1, Statement of Sao Duarte, paragraph 36
9 Transcript PN 388 - PN 389
10 Transcript PN 392 - PN 393, PN 400
11 Transcript PN 155 - PN 157
12 Transcript PN 128 - PN 130
13 Transcript PN 131
14 Transcript PN 127
15 Exhibit B1, Witness statement of Karen Grigg, paragraphs 11 and 14
16 Transcript PN 463
17 Transcript PN 424
18 Webb v RMIT University [2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]
19 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373]
20 Ibid
21 J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292
22 Qantas Airways Ltd v Christie (1998) 193 CLR 280
23 Exhibit H1, Witness statement of Sao Duarte, paragraph 8
24 Exhibit B1, Witness statement of Karen Grigg page 65
25 Exhibit H1, Witness statement of Sao Duarte, paragraph 9
26 Transcript PN 518
27 Transcript PN 397
28 [2016] FWCFB 4218 (Watson VP, Gooley DP, Wilson C, 28 July 2016)
29 Ibid
30 Ibid
31 [2013] FWCFB 9075 at [45]
32 J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292
33 Transcript PN 461
34 Transcript PN 454
35 Transcript PN 420
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