[2017] FWC 2536 [Note: An appeal pursuant to s.604 (C2017/3149) was lodged against this decision - refer to Full Bench decision dated 2 August 2017 [[2017] FWCFB 4032] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Halina Bluzer
v
Monash University
(U2016/8894)

COMMISSIONER CRIBB

MELBOURNE, 19 MAY 2017

Application for relief from unfair dismissal.

[1] Ms Halina Bluzer (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application is in relation to Ms Bluzer’s dismissal by Monash University (the Respondent, the University).

[2] The application was heard on Monday, 16 January 2017, Tuesday, 17 January 2017 and Thursday, 16 February 2017. Ms Bluzer was represented by Mr D Connell of Counsel and Monash University by Mr L Howard of Counsel.

[3] Ms Bluzer gave evidence as did Mr Anthony Lad, National Tertiary Education Union (NTEU). For the Respondent, Ms Sharon Elliott, Senior Events Coordinator; Mr John Rivett, Faculty General Manager, Faculty of Arts and Ms Sian Owen, Workplace Relations Consultant gave evidence. In addition, a Witness Statement 1 from Dr Brendan Crockett, a Witness Statement2 from Ms Michelle Bluzer-Fry, a Statutory Declaration3 from Dr Widya Olivia Sungkono and an Affidavit4 of Mr Matthew Condello, solicitor were tendered as exhibits.

Legislative framework

[4] Section 387 of the Act sets out the criteria that the Fair Work Commission (Commission) must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides 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.”

[5] I will consider each of the criteria in turn.

[6] It was common ground that the key issues requiring determination by the Commission, in this matter, are whether there was a valid reason for Ms Bluzer’s dismissal and, if so, whether the dismissal was otherwise harsh, unjust or unreasonable.

Chronology of events

[7] It is helpful in this matter to set out a brief chronology of events:

Section 387(a) - valid reason for the dismissal?

[8] Ms Bluzer was dismissed from her employment, on 26 July 2016, for fabrication of a medical certificate that Ms Bluzer had presented to the University in support of the Second leave application on 26 April 2016. 11

Submissions

Ms Bluzer

[9] Ms Bluzer absolutely denied that she had falsified the certificate in order to claim a personal leave entitlement. Ms Bluzer admitted to modifying the medical certificate in 2015 but explained that this was with the intention of emailing it to the Clinic with a request to have the medical certificate reissued with the additional phrase “was unable to attend work” as had been requested by her then supervisor Ms Avenell. It was stated by Ms Bluzer that she did not go ahead with this plan as she was going to Bali for a follow-up treatment and so had requested that the medical certificate be reissued in person. 12

[10] It was explained by Ms Bluzer that she had accidentally attached the modified certificate and sent it to her supervisor who had then forwarded it to Mr Rivett who had then accused her of using the modified certificate to claim sick leave. Ms Bluzer had asked Ms Elliott to return the application for leave documents as they contained mistakes as she had replaced them with corrected ones. It was stated that the matter was escalated to HR and that they had misinterpreted the facts and so had accused her of deliberately trying to defraud the University. Ms Bluzer explained that, on 11 April 2016, she had already submitted a legitimate certificate for her sick leave claim to Ms Elliott. The modified document was sent in error by email on 26 April 2016 and there was no need for her to have done so as she had already supplied a legitimate medical certificate to her supervisor on 11 April 2016. 13

[11] Ms Bluzer explained that she was also under undue stress at the time due to the harsh treatment by Ms Elliott. Ms Bluzer stated that she had a medical certificate confirming that she was under medication for stress which was said to provide further clarification as to why she had attached the wrong file by mistake. 14

[12] With respect to the curious phrase “unable attended work” instead of “was unable to attend work”, which appeared on the reissued certificate in 2016 and the modified certificate created in 2015, it was suggested by Ms Bluzer that it was an auto correct function of the computer or a coincidence. Whilst Ms Bluzer agreed that it was most unusual, Ms Bluzer contended that it simply made no sense for her to forge a medical certificate with grammatical errors. Ms Bluzer stated that the modification was also very rough and, given her experience of using PDF files in her role of preparing posters and programs, Ms Bluzer stated that she would never produce a finished product of such poor quality. Ms Bluzer argued that the fact that the modified document contained errors and was very obviously meddled with or unfinished, further supported her argument that she never intended to use it. 15

[13] It was further submitted by Ms Bluzer that, as these certificates were issued in Bali, mistakes would be understandable from non-native English speakers and that she had provided evidence that these certificates she had supplied were legitimate. Ms Bluzer contended that, if her employer still had doubts, the University should have pursued the matter with her treating doctor in Bali as part of their investigation. It was stated that she had provided the University with the contact details for her doctor. As well, it was argued that the University had accepted the 2016 medical certificate for the 2016 treatment but had refused to accept an identical certificate containing dates from 2015. 16

[14] Ms Bluzer argued that there was evidence that the accusation that she had deliberately attempted to defraud the University in order to gain financial reward, was totally absurd. It was stated that the investigators, namely Ms Owen, had refused to consider an alternative explanation despite all of the evidence to the contrary. In addition, it was contended that Ms Avenell had rejected her original 2015 medical certificate in 2015 when she should have accepted it. This was said to be in contravention of the enterprise agreement and should never have happened. In addition, Ms Bluzer argued that the disciplinary steps set out in the enterprise agreement (clauses 54 and 57) were not followed and that the University failed to investigate the allegations thoroughly and truthfully. 17

[15] It was also submitted by Ms Bluzer that Ms Elliott and Mr Rivett, together with Ms Owen, were trying to get rid of her. Ms Bluzer contended that she was made to vacate her previous role of School Executive Officer, in January 2014, and to accept a newly created position of Executive Officer Events (Caulfield) in order to offer a permanent position for a temporary staff member. Further, from the beginning, it was said that Ms Elliott had voiced her disapproval about her appointment to Mr Rivett and that Ms Elliott had worked on discrediting her name. In addition, it was stated that, in September 2014, Mr Rivett had employed Ms Elliott’s son’s girlfriend, Ms Loschiavo, on a casual basis as Events Officer, to assist Ms Elliott. It was Ms Bluzer’s view that, from about May 2015, her role began to be stripped of duties and responsibilities ahead of removing her from her role. This stripping of duties was detailed in Ms Bluzer’s written statement. Ms Bluzer stated that, at the start of 2016, Ms Elliott had said to her that she was interested in securing full-time employment for Ms Loschiavo. 18

[16] Ms Bluzer recalled that, in March 2016, when she had learned that her role was demoted from Executive Officer (Events) to Events Officer, she had made an appointment to discuss this demotion with Mr Rivett. During the meeting with Mr Rivett, it was recalled that Mr Rivett had informed her that the new role was non negotiable. It was recounted that, prior to her meeting with Mr Rivett, Ms Elliott had told Ms Bluzer that she would much rather have Ms Loschiavo working as Executive Officer than Ms Bluzer. On the basis of the foregoing, it was Ms Bluzer’s contention that the investigation process was a sham and that, constructing the charge of “serious misconduct” at the beginning of the investigative process, rather than going through the steps as set out in the enterprise agreement, constituted the final move in a series of steps to remove her from the role. 19

[17] On behalf of Ms Bluzer, it was also submitted that the employer constantly and consistently took the view that Ms Bluzer was lying and did not actually consider the possible truthfulness of her, admittedly, complicated explanations. The University was said to have made little or no effort to disentangle the factual matters of the three documents and that it was aware of some of Ms Bluzer’s medical history which pointed to possible alternate explanations. 20

[18] Secondly, it was argued that the University has not established the intention of the fraud which was alleged. The likelihood of there being such an intention was said to have been considerably diminished by the so-called fake medical certificate being submitted after another medical certificate, for the same period, was already with the University and had not been rejected. The observation was made that there is some equivocation as to the withdrawal of one certificate and its replacement. It was indicated that that will never be properly understood as there was no need to have submitted the additional medical certificates. 21

[19] It was stated that it was still difficult to determine what the benefit was to Ms Bluzer of the alleged fraud. The question was asked as to whether it was in the transmission of two days holiday pay to two days sick leave or vice versa? 22 The Commission was referred to previous cases and authorities where there had been established that there was a clear and patented benefit to the particular person. It was contended that these were in sharp distinction to this case.23

[20] The Applicant noted the build-up to the certificates issue, in terms of the elevation of dissatisfaction within her branch of the Monash University, and stated that this issue was really the last straw. It was stated that this situation was revealed in the emails between all of the parties beginning with the email in which Mr Rivett asked “how hard do we push this?”. It was contended that, like a snowball on the mountain, this developed amongst colleagues and reached a crescendo with Ms Owen where there was a finding of serious misconduct which was said to be akin to Ms Owen smashing a peanut with a sledgehammer. This was on the basis that, not only was the intention to defraud not established, the likelihood of there being such an intention was considerably diminished, given the fact that there was no need for this additional certificate. 24

[21] With respect to the University’s finding that Ms Bluzer was guilty of serious misconduct, it was stated that the incident had been presumed as serious misconduct right from the outset which resulted in the University bypassing the requirements of clause 54 of the enterprise agreement. It was argued that one doesn’t get to first base on serious misconduct with Ms Bluzer, given that she is a person who had had a very successful career and whose reputation was wholly unsullied. 25 Further, the Applicant argued that this was the only incident in her four-year period of employment and that Ms Bluzer has always denied any intent to defraud her employer.26

[22] It was also submitted that, drawing the analogy from the common law, it was very difficult to have negligence in the air as in falsify a document, have it signed by a police officer, leave it on the desk but don’t do anything about it (fraud in the air). It was stated that there was no damage to the employer or to anybody else that the University has been able to establish. 27

The University

[23] On the other hand, the University contended that the University had a valid reason for dismissing Ms Bluzer as Ms Bluzer had wilfully provided a falsified medical certificate to the University in support of an application for sick leave. 28 It was argued that Ms Bluzer had created the medical certificate that she sent to Ms Elliott on 26 April 2016 (second certificate). Secondly, the University argued that Ms Bluzer created this document on or around 18 February 2016 by inserting two images which combined to say “so was unable attended work”. It was stated that the images that Ms Bluzer used were taken from another certificate (Document P) that Ms Bluzer had received days earlier on 11 February 2016. The University contended that Ms Bluzer had inserted those words because she had been previously told that the medical certificates must establish that her dental treatment meant that she was unable to perform work. It was argued that Ms Bluzer did this intentionally in support of an application for leave and that it was not an accident.29

[24] The University pointed to the phrase “so was unable attended work” and argued that it was bad English and was unique. It was stated that it was unlikely that this phrase would have been repeated twice by two different people (Ms Bluzer and Dr Guizot) in two separate locations (Melbourne and Bali) and at two different times (April/May 2015 and February 2016). 30 Ms Owen’s evidence, in relation to her review of the document on Photoshop, and that of Mr Condello which showed that the document was created and modified on 18 February 2016, was highlighted in this regard.31

[25] It was contended by the University that Ms Bluzer gave Ms Elliott the First certificate 32 on 11 April 2016 as part of a paper application for the 2015 leave. Ms Elliott noticed that the certificate did not say that Ms Bluzer was unfit for duties and so Ms Elliott had followed up with Ms Bluzer. Ms Bluzer had then advised Ms Elliott that she had made a mistake in the application and would send Ms Elliott a new application.33

[26] In addition, it was stated that Ms Elliott’s evidence was that she had been given one certificate and not two on 11 April 2016, that this evidence was not questioned or challenged in cross examination and that Ms Elliott’s evidence was corroborated by that of Mr Rivett, Ms Owen and Ms Owen’s notes of the meeting on 10 May 2016. 34 The University argued that Ms Bluzer had not provided an explanation for why she had given Ms Elliott two certificates. It was stated that the only evidence before the Commission is what Ms Elliott received. It was noted that Ms Bluzer had not kept a copy of the first application.35

[27] The University also submitted that emailing the amended certificate to Ms Elliott was not an accident as it was expressly mentioned in Ms Bluzer’s covering email and so it could not have been accidental. As well, the University argued that, to attach a document to an email, was an intentional act which required positive steps in email software. Further, it was contended that there was no logical reason for Ms Bluzer to give Ms Elliott two certificates in the first place, as argued by Ms Bluzer. The University stated that there was no reason for Ms Bluzer to have given Ms Elliott a third certificate i.e. that there was no reason for Ms Bluzer to attach the amended certificate to the email if she had already given Ms Elliott a correct certificate with the first application. 36 Finally, in relation to the certificates, it was submitted that the evidence of Ms Owen and Mr Rivett, Ms Owen’s notes and Mr Lad’s evidence all supported the conclusion that Ms Bluzer had handed a new certificate (Third certificate) to the University on 10 May 2016.37

[28] Further, the University contended that Ms Bluzer had not provided a plausible explanation for why she had amended the document. It was argued that, of all the documents in the world on which to conduct a professional exercise, Ms Bluzer chose the medical certificate. The University stated that Ms Bluzer’s explanation for why she had created it should not be accepted as Ms Bluzer could easily have made a call or sent an email to the Bali Clinic. 38

[29] The University submitted that it was not a question of serious misconduct but rather whether there was a sound, defensible and well founded reason. It was stated that it was not a question of the University having to prove that there was a fraud. 39

[30] It was argued that the University’s case was that Ms Bluzer created the certificate in question, on or around 18 February 2016, by inserting those words from another medical certificate (Document P) and that Ms Bluzer did so intentionally in support of an application for leave. 40

[31] In relation to Ms Bluzer’s contention that Ms Elliott was out to get Ms Bluzer and that Ms Owen and Mr Rivett were in on the plan, the University argued that the contrary was true and that Ms Elliott had only tried to help Ms Bluzer. It was acknowledged that Ms Bluzer and Ms Elliott had had disagreements but it was contended that they otherwise shared a collegiate relationship and went out for coffee most days. 41

[32] With respect to Ms Bluzer’s contention that Ms Owen and Mr Rivett had colluded with Ms Elliott to set Ms Bluzer up, it was stated that Ms Bluzer had not put forward a credible theory as to why this would have been the case. The University highlighted the fact that, once Ms Elliott had reported the issue to Mr Rivett, Ms Elliott had no further involvement in the matter and had never met Ms Owen. In addition, it was stated that Mr Rivett was not involved in the decisions to take disciplinary action and that Ms Owen’s role meant that she was separate and independent from the Faculty. 42

[33] Further, the University stated that Ms Bluzer’s position remains vacant and that she had not been replaced by Ms Loschiavo. 43

[34] The University submitted that Ms Bluzer was not a credible witness due to having provided different explanations for her conduct and because she had changed her version of events a number of times. In terms of Ms Bluzer’s demeanour in the witness box, it was argued that Ms Bluzer’s performance was a classical demonstration of an unreliable witness. It was stated that Ms Bluzer had persistently avoided questions, was deliberately evasive and unconvincing and generally struggled to respond to questions that challenged her account of events. 44

[35] In relation to the Applicant’s contention that the fraud, if it existed, was procured by an entrapment, the University argued that it was within the University’s prerogative to ask for evidence satisfactory to itself – as per clause 34.2 of the enterprise agreement. 45

[36] Finally, the University took the Commission to a number of Full Bench authorities in relation to medical fraud or dishonesty cases. 46

Witness evidence

Ms Bluzer

[37] It was Ms Bluzer’s evidence that:

Cross examination

[38] During cross examination, Ms Bluzer gave the following evidence:

Meeting on 26 May 2016

Respondent

Mr Rivett

[39] In relation to the email from Ms Triantafyllides to Ms Owen on 29 April 2016, 188 where Ms Triantafyllides stated that Mr Rivett had wanted her advice “as to how hard we can go on this”, it was Mr Rivett’s explanation that he was seeking advice from HR about how hard would we deal with these/how would it be dealt with.189 Mr Rivett said further that he was seeking advice because, if he had to have a conversation with Ms Bluzer, then how hard do we push on this – how do we play this (what were the University’s requirements on how to deal with this?190

[40] Further, it was Mr Rivett’s evidence that:

Meeting on 10 May 2016

Meeting on 26 May 2016

[41] In relation to Ms Bluzer’s contention that the University was trying to get rid of her, Mr Rivett gave evidence that:

Ms Elliott

[42] It was Ms Elliott’s evidence that:

Ms Owen

[43] Ms Owen gave evidence that:

Mr Lad

[44] Mr Lad gave evidence that:

Considerations and conclusions

[45] Before the Commission can reach a conclusion about whether there was a valid reason for Ms Bluzer’s dismissal, it is first necessary to make a number of findings of fact. The findings of fact made will only be those necessary to address the requirements of section 387 of the Act. This is in the context of a somewhat dense case involving a number of medical certificates which each of the parties described and labelled differently and where both parties had differing views about when at least two of these certificates were provided by Ms Bluzer to the University.

[46] The simplest way of making the required findings is to set out a chronology of events which will include the relevant contested issues. Findings will then be made in relation to these issues. The chronology is as follows:

Findings

[47] The reason given by the University for Ms Bluzer’s dismissal was that Ms Bluzer had provided a falsified medical certificate to the University on 26 April 2016 (Second certificate) in support of an application for leave in February 2015.

[48] Ms Bluzer gave evidence before the Commission that, sometime between her return from Bali in February 2015 and 20 May 2015, she had amended the original medical certificate by adding the words “so was unable attended work”. It was not disputed that Ms Bluzer had attached this certificate to the second leave application form. Therefore, the Commission finds that Ms Bluzer altered a medical certificate which she attached to a leave application form (second).

[49] In relation to the various issues in dispute set out in the chronology above, the Commission finds that:

[50] The reasons for making the above findings are, firstly, that it is not plausible for the University to have commenced a disciplinary process unless it had been presented with two certificates by Ms Bluzer that were exactly the same except that the second one had the additional words “so was unable attended work”. It makes no sense for the University to begin such a process unless there was such a trigger. If the University had been presented with the two certificates that Ms Bluzer contended were attached to the first leave application, then it is likely that a different process may have been followed. This is because one of the two certificates (the backdated and reissued certificate) contained the required information from the University’s point of view. The issue for the University then would have been whether to accept a backdated and reissued certificate. This is quite a different consideration to concerns that a medical certificate had been falsified. It is acknowledged that Ms Bluzer was of the view that the University was trying to get rid of her. However, even if the University was of a mind to do this, there had to be an event or issue which provided the University with an opportunity in the first instance. It is my view that a possibly falsified medical certificate would be a sufficient concern to kick start a disciplinary process but an issue about a backdated and reissued medical certificate would not necessarily do that.

[51] In addition, in the oral and written contemporaneous evidence of the University’s witnesses, the concerns raised were about the second of two certificates and not about the second of three certificates (which included the backdated and reissued Third certificate). If Ms Bluzer had provided three certificates across the two applications, the emails and evidence would have said that. The evidence of Ms Owen and Ms Elliott, together with the written communication between Ms Elliott and Mr Rivett and between Ms Triantafyllides and Ms Owen, and Ms Owen’s notes of the meeting on 10 May 2016 which she made during the course of the meeting, refer to two certificates and not three. Consistently throughout all of these communications were that there were two certificates (the First certificate and the Second certificate about which the University held concerns).

[52] In making these findings, I am therefore, also of the view, that there were two certificates on the table at the beginning of the meeting on 10 May 2016.

[53] In addition to the concern about the Second certificate, the situation confronting the University was that it had received three medical certificates from Ms Bluzer, all of which contained the same exact ungrammatical phrase “so was unable attended work”. The three medical certificates were the Second certificate which Ms Bluzer had amended; the backdated and reissued certificate (Third certificate) and the 2016 certificate for the 2016 treatment. It was Ms Bluzer’s evidence that she had created the Second certificate in 2015 and had then obtained the other two certificates when she was in Bali in February 2016. Ms Bluzer also said that, in amending the certificate, she had taken the words from some other document and had cut and pasted them into the original certificate, or she could have just written them but she could not remember as it was a long time ago.

[54] On the other hand, the University argued that Ms Bluzer had created the document on 18 February 2016 by cutting and pasting the words in question from the 2016 certificate for the 2016 treatment (Document P) which Ms Bluzer had obtained a few days earlier when she was in Bali in February 2016.

[55] Ms Bluzer gave two explanations for why the three medical certificates that she had provided the University all contained the same exact ungrammatical phrase. The first explanation was that it could have been the auto correct function. However, it was conceded by Ms Bluzer during the hearing that the exact same phrase appearing in all of the three certificates could not have been as a result of the auto correct function. This was because it was not possible to auto correct images.

[56] Ms Bluzer’s other explanation was that it was a coincidence which she could not explain. It is difficult to accept that this was simply a coincidence. The phrase in question is unusual and the chance of it randomly appearing in all three certificates would seem to be remote. This is particularly so as it was Ms Bluzer’s evidence that she had created the amended certificate herself in 2015 in Melbourne and that the doctors at the Clinic in Bali had written the other two certificates in 2016. In this regard, the University provided technical evidence, through the statement of Mr Condello, in relation to the University’s view that the certificate was created and amended by Ms Bluzer on or about 18 February 2016.

[57] In terms of where the particular phrase came from, Ms Bluzer’s evidence was that she had cut and pasted it from some other document. However, Ms Bluzer did not indicate as to what the “some other document” was. Ms Bluzer had also said that she could have just written that phrase but she could not remember. On the other hand, the University provided a possible explanation about where the phrase had originated – the 2016 medical certificate for the 2016 treatment (Document P).

[58] Given Ms Bluzer’s command of the English language, it would seem unlikely that Ms Bluzer came up with that particular phrase by herself. In terms of what document Ms Bluzer might have ‘cut’ the words from, Ms Bluzer did not indicate as to which document it was. It is difficult to envisage that, if Ms Bluzer did cut and pasted the words in question from another document, Ms Bluzer would have had possession of a document with those words in it in 2015.

[59] Given the absence of a clear explanation from Ms Bluzer about where the phrase in question came from and my view that its appearance in all of the three certificates is unlikely to be a coincidence, it is not possible to find other than it is probable that the phrase in question was cut and pasted from the 2016 medical certificate for the 2016 treatment (Document P). As Document P, on Ms Bluzer’s evidence, was given to her by the doctor at the Clinic in February 2016, it flows from that that the original certificate was amended in 2016 rather than in 2015.

[60] Finally, in terms of whether Ms Bluzer attached the Second certificate by mistake or deliberately to the second leave application, there appears to be a number of inconsistencies in Ms Bluzer’s explanation for why she had attached a (the) certificate to the second (amended) leave application. This was in the context of Ms Bluzer being very clear that all she was amending was the leave application and not the certificate(s). Ms Bluzer’s evidence was that she had attached two medical certificates to the first application. However, there was no explanation by Ms Bluzer as to why she had wanted to attach only one of those two certificates to the second (amended) leave application. Further, it was not explained by Ms Bluzer as to why, on her evidence, she had attached two certificates to the first leave application.

[61] Further, Ms Bluzer has explained that the motivation for attaching a certificate to the second leave application was to make it easier for Ms Elliott by re-attaching what she thought was the certificate that she had attached with the first leave application (so that Ms Elliott did not have to try and locate the first application). This does not seem to sit with Ms Bluzer’s other evidence that she had attached two certificates to the first leave application – the First certificate and the backdated and reissued certificate. There was no mention in Ms Bluzer’s evidence that she had meant to reattach the reissued and backdated certificate to make it easier for Ms Elliott. Rather, Ms Bluzer referred to the original (First) certificate that had been attached to the first application. Given Ms Bluzer’s contradictory evidence, it is difficult to accept that the Second certificate had been attached by mistake to the second leave application.

[62] The Commission has also had regard to the medical evidence and also Ms Bluzer’s evidence that the reason she made the mistake in the first application and attached the incorrect certificate to the second application was because she was stressed as distinct from being affected by the antidepressant medication. It is accepted that Ms Bluzer was feeling stressed at this time and that, as a result, she made mistakes with the first application form and attaching the Second certificate. However, I have not been persuaded that Ms Bluzer’s stress accounts for the same phase appearing in all of the three certificates.

[63] Taking into account the findings, on the balance of probabilities set out above, the Commission finds, on balance, that there was a valid reason for Ms Bluzer’s dismissal.

[64] In making this finding on the balance of probabilities, it is acknowledged that Ms Bluzer has worked very hard to try and persuade first, the University and second, the Commission, that her version of events is true and correct. However, despite all of the effort and busyness, unfortunately for Ms Bluzer, she has not been able to provide a reasonable explanation for the presence of the phrase in question in the three certificates nor for the internal inconsistencies in her own evidence.

[65] On the Commission’s part, there has been no lack of effort in trying to understand the various explanations and the convoluted and competing evidence given by Ms Bluzer. However, on the material before the Commission from Ms Bluzer, it has not been possible to distill a cogent and internally consistent explanation for what happened. Therefore, the Commission has no option other than to accept the reasoning of the University for Ms Bluzer’s dismissal and to find that there was a valid reason for her dismissal.

Section 387(b) - notified of the reason

[66] During the meeting on 10 May 2016, Ms Bluzer was advised of the basis for the University’s serious concerns about the second medical certificate she had provided. On 26 May 2016, during the meeting, Ms Bluzer was informed of the allegations and these were contained in a letter to Ms Bluzer dated 31 May 2016.

[67] Ms Bluzer was notified of the reason for her dismissal during the meeting on 27 July 2016 and was provided with a termination letter dated 27 July 2016 which set out the reasons for her dismissal.

[68] Therefore, I find that Ms Bluzer was notified of the reason for her dismissal.

Section 387(c) - opportunity to respond

[69] Ms Bluzer was given an opportunity to respond to the allegations during the meetings held on 10 May 2016 and 26 May 2016 and following receipt of the written advice of the allegations in the letter dated 31 May 2016. Ms Bluzer was also provided with additional time to obtain a medical report.

Section 387(d) - unreasonable refusal to have a support person

[70] The University did not refuse to allow Ms Bluzer to have a support person (NTEU official) for the meeting on 10 May 2016 and on 26 May 2016. Ms Bluzer also had an NTEU representative with her for the meeting on 27 July 2016.

Section 387(e) - previous warnings regarding unsatisfactory performance

[71] This subsection is not relevant as Ms Bluzer’s dismissal was related to conduct and not work performance.

Section 387(f) and (g) - size of the employer and specialist human resources

[72] The University is a large employer with the result that its size would not adversely impact upon the procedures followed in relation to Ms Bluzer’s dismissal. As well, the University has dedicated human resources staff, one of which, Ms Owen, was involved early on in the process.

Section 387(h) - any other matters

[73] It was submitted by Ms Bluzer that the dismissal was harsh, unjust and unreasonable. 329 This was because:

[74] In response, the University argued that it was entitled to request evidence confirming that Ms Bluzer’s dental treatment resulted in an inability to perform her duties. The Applicant’s assertion that the fraud was inconsequential and that the University should treat it as such, was said to misunderstand of the point that honesty goes to the core of everything that we do. It was stated that the trust was lost and that trust is fundamental to the employment relationship. 331

[75] I will take into consideration Ms Bluzer’s stage in life and the consequential economic and personal consequences on Ms Bluzer of the University’s decision to dismiss her.

Conclusions

[76] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I have determined, on balance, that Ms Bluzer’s dismissal was not harsh, unjust or unreasonable.

[77] On the one hand, on the balance of probabilities, there was a valid reason for Ms Bluzer’s dismissal and the procedural requirements of the Act have been met. On the other hand, the economic and personal consequences of the dismissal have had a negative impact on Ms Bluzer. This is particularly so given Ms Bluzer’s stage in life.

[78] It therefore follows that, pursuant to section 385 of the Act, Ms Bluzer was not unfairly dismissed. Accordingly, Mr Bluzer’s application is dismissed. An order 332 to this effect will be issued separately.

Seal of the Fair Work Commission with member's signature

Appearances:

D Connell of Counsel for the Applicant

L Howard of Counsel for the Respondent

Hearing details:

2017.

Melbourne:

January 16, 17;

February 16.

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A3

 4   Exhibit R1

 5   Exhibit R3 at Attachment SAE1

 6   Exhibit R6 at Attachment SMO10

 7   Ibid at paragraph 3

 8   Exhibit R3 at Attachment SAE2

 9   Exhibit A5 at Attachment Document P

 10   Exhibit R6 at Attachment SMO4

 11   Exhibit A5 at Attachment Document H

 12   Exhibit A6, Part 4c at paragraphs 1 - 3

 13   Ibid at paragraphs 4 - 5

 14   Ibid at paragraph 6

 15   Ibid at paragraph 7

 16   Ibid at paragraphs 8 - 10

 17   Ibid at paragraph 11 and Part 4d at paragraphs 17 - 20 and Exhibit A4 at paragraphs 6 - 8

 18   Exhibit A4 at paragraphs 78 - 83

 19   Ibid at paragraphs 84 - 88

 20   Transcript PN 4081 - 4082

 21   Ibid PN 4085

 22   Ibid PN 4083 and 4096

 23   Ibid PN 4110 - 4123

 24   Ibid PN 4086 - 4088

 25   Ibid PN 4088 - 4095 and 4098 - 4109

 26   Ibid PN 4096

 27   Ibid PN 4097 - 4098

 28   Respondent’s Outline of Submissions, dated 29 December 2016, at paragraph 3

 29   Exhibit R9 at paragraph 3(a) and Transcript PN 4161, 4165 and 4171

 30   Ibid at paragraph 4(a) and ibid PN 4171

 31   Transcript PN 4163 - 4164 and 4172

 32   Exhibit R3 at Attachment SAE1

 33   Transcript PN 4157

 34   Ibid PN 4173 and Exhibit R9 at paragraphs 4(b) - (d)

 35   Transcript PN 4158

 36   Exhibit R9 at paragraph 5(a)

 37   Ibid at paragraph 5(b) and Transcript PN 4159 - 4162, 4173 and 4175

 38   Transcript PN 4162

 39   Ibid PN 4167 - 4168

 40   Ibid PN 4169

 41   Exhibit R9 at paragraph 5(c)

 42   Ibid at paragraph 5(d) and Transcript PN 4175 - 4177 and 4184

 43   Ibid at paragraph 5(e)

 44   Ibid at paragraph 6 and Transcript PN 4178 - 4183

 45   Transcript PN 4186 - 4187

 46   Ibid PN 4189 - 4199

 47   Ibid PN 152 and Exhibit A4 at paragraph 1

 48   Ibid PN 152 and ibid at paragraph 2

 49   Ibid PN 153

 50   Ibid PN 153 - 157, 162 and 381 and Exhibit A4 at paragraph 6

 51   Ibid PN 180 - 182 and 228

 52   Ibid PN 158

 53   Ibid PN 171, 189, 366 and 383 and Exhibit A4 at paragraph 31

 54   Exhibit A4 at paragraph 31

 55   Transcript PN 384

 56   Ibid PN 171

 57   Ibid PN 172

 58   Ibid PN 158 and Exhibit A4 at paragraph 9

 59   Ibid PN 158, 164 and 166

 60   Ibid PN 443 and Exhibit A4 at paragraphs 10 - 11

 61   Ibid PN 158

 62   Ibid PN 165

 63   Ibid PN 159

 64   Ibid PN 160

 65   Ibid PN 177

 66   Ibid PN 160, 177 and 440

 67   Ibid PN 168 and Exhibit A4 at paragraphs 13 - 14

 68   Ibid PN 168 - 169 and ibid at paragraph 15

 69   Ibid PN 370

 70   Ibid PN 372 - 374 and Exhibit A5 at Attachment Document AD

 71   Ibid PN 169, 177, 318 - 320, 330 - 338, 342 - 350, 360, 362 - 364 and 367 - 369, Exhibit A4 at paragraphs 17 - 19 and Exhibit R5 at Attachment SMO3

 72   Ibid PN 169 - 171 and Exhibit A4 at paragraphs 19 and 21

 73   Ibid PN 177 and 350

 74   Ibid PN 339 - 341 and Exhibit A4 at paragraph 31

 75   Ibid PN 188

 76   Ibid PN 189, 215 - 216, 364 and 375 and Exhibit A4 at paragraph 30

 77   Exhibit A4 at paragraphs 32 - 33

 78   Transcript PN 366

 79   Ibid PN 189, 364 - 365 and Exhibit A4 at paragraphs 31 and 37

 80   Ibid PN 189 - 190

 81   Ibid PN 207 - 212

 82   Ibid PN 308 - 309

 83   Ibid PN 218 - 220, 223 and 366

 84   Ibid PN 223 - 224 and 321 and Exhibit A5 at Attachment AJ

 85   Ibid PN 226 - 227

 86   Ibid PN 231

 87   Ibid PN 389 - 394, 397 and 400 - 409 and Exhibit A4 at paragraphs 77 - 78

 88   Ibid PN 232 - 235

 89   Ibid PN 413 and 433

 90   Exhibit R5 at Attachment SMO3

 91   Transcript PN 304 and 361

 92   Ibid PN 410

 93   Ibid PN 411 - 412

 94   Ibid PN 422

 95   Ibid PN 304 and 361

 96   Ibid PN 308 and 385 - 387

 97   Ibid PN 480 and Exhibit A5 at Attachment Document K

 98   Ibid PN 481

 99   Ibid PN 482 and Exhibit A4 at paragraph 10

 100   Ibid PN 483

 101   Ibid PN 484 and 486

 102   Ibid PN 487 - 488

 103   Ibid PN 489 - 490

 104   Ibid PN 491 - 493 and 858 - 861 and Exhibit A5 at Attachment Document X

 105   Ibid PN 496 - 497

 106   Ibid PN 498 - 499

 107   Ibid PN 500

 108   Ibid PN 501 and 503

 109   Ibid PN 502

 110   Ibid PN 503 - 507

 111   Ibid PN 508 and 510

 112   Ibid PN 509

 113   Ibid PN 511

 114   Ibid PN 513

 115   Ibid PN 514

 116   Ibid PN 515

 117   Ibid PN 516

 118   Ibid PN 517 - 518

 119   Ibid PN 519

 120   Ibid PN 519 - 520

 121   Ibid PN 521

 122   Ibid PN 522

 123   Ibid PN 523 - 525 and Exhibit A4 at paragraph 12

 124   Ibid PN 527 - 544

 125   Ibid PN 545 - 547

 126   Ibid PN 548 - 549

 127   Ibid PN 551 - 553

 128   Ibid PN 559 - 562 and Exhibit A5 at Document AD

 129   Ibid PN 563 - 567

 130   Ibid PN 568 - 569

 131   Ibid PN 573 - 574 and 577

 132   Ibid PN 575

 133   Ibid PN 570 - 571

 134   Ibid PN 570 - 572

 135   Ibid PN 578 - 579 and Exhibit A4 at paragraph 19

 136   Ibid PN 580 - 581 and ibid at paragraphs 20 - 21

 137   Ibid 584 - 586

 138   Ibid PN 587 - 589

 139   Ibid PN 590 - 591

 140   Ibid PN 592

 141   Ibid PN 594

 142   Ibid PN 596 - 598

 143   Ibid PN 599 - 606

 144   Ibid PN 607 - 609

 145   Ibid PN 609 - 628 and 652 and Exhibit R1 at Attachment MPC2

 146   Ibid PN 630

 147   Ibid PN 631

 148   Ibid PN 632 - 638

 149   Ibid PN 639 - 642 and 646 - 647

 150   Ibid PN 710 - 714

 151   Ibid PN 715 - 718

 152   Ibid PN 719 - 721 and Exhibit A4 at paragraph 19

 153   Ibid PN 722

 154   Ibid PN 723 - 730

 155   Ibid PN 731 - 737

 156   Ibid PN 879

 157   Ibid PN 738 - 742 and Exhibit A4 at paragraph 23

 158   Ibid PN 743 - 744

 159   Ibid PN 745 - 747

 160   Ibid PN 748 - 754 and Exhibit A4 at paragraph 29

 161   Ibid PN 755 and ibid at paragraph 26

 162   Ibid PN 757 - 759

 163   Ibid PN 760 - 764 and Exhibit R5 at Attachment SMO9

 164   Ibid PN 766 - 768

 165   Ibid PN 769 and 771

 166   Ibid PN 722

 167   Ibid PN 773 - 774

 168   Ibid PN 778

 169   Ibid PN 780 - 783

 170   Ibid PN 784 - 785

 171   Ibid PN 787 - 791

 172   Ibid PN 793 - 794

 173   Ibid PN 799 - 801

 174   Ibid PN 803

 175   Ibid PN 810 - 812

 176   Ibid PN 814

 177   Ibid PN 817 - 819

 178   Ibid PN 821 - 822

 179   Ibid PN 835 - 837

 180   Ibid PN 840 - 843 and Exhibit A4 at paragraphs 63, 64 and 71

 181   Ibid PN 844, 849 - 851 and 862 - 865

 182   Ibid PN 852

 183   Ibid PN 857

 184   Ibid PN 876 - 878 and Exhibit A4 at paragraph 19

 185   Ibid PN 892 - 909 and ibid at paragraph 72

 186   Ibid PN 911

 187   Ibid PN 912 - 914

 188   Exhibit R5 at Attachment SMO3

 189   Transcript PN 1696

 190   Ibid PN 1859

 191   Ibid PN 2208 - 2209 and Exhibit R4 at paragraph 7

 192   Ibid PN 1701 - 1703

 193   Exhibit R3 at Attachment SAE1

 194   Ibid at Attachment SAE2

 195   Transcript PN 2470 - 2491, 2500, 2510 - 2511 and 2596 - 2601

 196   Ibid PN 1704 - 1707 and 1881

 197   Ibid PN 1708 and 1873

 198   Ibid PN 1711 - 1712

 199   Ibid PN 1710

 200   Ibid PN 1719 - 1720 and 1875

 201   Ibid PN 1732 - 1736, 1743, 1745, 1747, 1763 and 1820

 202   Ibid PN 1744

 203   Ibid PN 2212

 204   Ibid PN 1746 and 1748

 205   Ibid PN 1749 and 1871, 1931 - 1932 and 1935 - 1940

 206   Ibid PN 2213 - 2215

 207   Ibid PN 2217 - 2219

 208   Ibid PN 1933

 209   Ibid PN 1756 - 1757, 1814 - 1816 and 2024 - 2025

 210   Ibid PN 1817 - 1819

 211   Ibid PN 1971 - 1972 and 1988 - 1989

 212   Ibid PN 1973 - 1977

 213   Ibid PN 1995 - 2001 and Exhibit R4 at paragraph 14

 214   Exhibit R4 at paragraphs 14 and 25

 215   Transcript PN 2009

 216   Ibid PN 2012 - 2013

 217   Ibid PN 2010 - 2011 and Exhibit R4 at paragraph 12

 218   Ibid PN 2021 - 2023 and ibid at paragraph 13

 219   Exhibit R4 at paragraphs 16 - 19 and 34

 220   Transcript PN 2216

 221   Ibid PN 2029 - 2032 and Exhibit R4 at paragraph 20

 222   Ibid PN 2035 - 2040 and ibid at paragraph 20

 223   Ibid PN 2042 - 2043 and ibid

 224   Ibid PN 2045 - 2046 and ibid

 225   Ibid PN 2045 - 2060

 226   Ibid PN 2065 - 2068 and Exhibit R4 at paragraph 21

 227   Ibid PN 2069 - 2070 and ibid at paragraph 22

 228   Ibid PN 2173 - 2174 and ibid at paragraph 45

 229   Ibid PN 2110 - 2112

 230   Ibid PN 2114 - 2118, 2122 and 2157 - 2158

 231   Ibid PN 2160 - 2167 and Exhibit R4 at paragraph 32

 232   Ibid PN 2167 - 2168

 233   Ibid PN 2175

 234   Ibid PN 1239 - 1243, 1279 - 1281 and 1284 - 1285

 235   Ibid PN 1303 - 1304 and 1391

 236   Ibid PN 1243 - 1244, 1392 and 1558 - 1562

 237   Ibid PN 1282 - 1283 and 1317

 238   Ibid PN 1286 and 1370

 239   Ibid PN 1371

 240   Ibid PN 1288 - 1292 and 1372

 241   Ibid PN 1456 and 1551 and Exhibit R3 at paragraphs 13 and 15

 242   Ibid PN 1453 - 1454 and ibid at paragraph 16

 243   Ibid PN 1551 and ibid

 244   Ibid PN 1336 - 1337, 1449 - 1450, 1545 - 1546 and 1563

 245   Ibid PN 1451 - 1454, 1546 - 1547, 1552 - 1556 and 1564 and Exhibit R3 at paragraph 17

 246   Ibid PN1550

 247   Ibid PN 1565

 248   Exhibit R3 at paragraph 14

 249   Ibid at paragraphs 18 - 19 and Transcript PN 1466 - 1471

 250   Ibid at paragraph 20 and ibid PN 1484

 251   Ibid at paragraph 10 and ibid PN 1372 - 1377, 1390 and 1422 - 1446

 252   Exhibit R3 at paragraph 10

 253   Transcript PN 1378 - 1380

 254   Ibid PN 1380

 255   Ibid PN 1380 - 1386

 256   Ibid PN 1353 - 1357

 257   Ibid PN 1350 - 1361

 258   Ibid PN 1293 - 1298

 259   Ibid PN 1396

 260   Ibid PN 1569 - 1575

 261   Ibid PN 1464 - 1465

 262   Ibid PN 1300 - 1302, 1334 - 1335 and 1541

 263   Ibid PN 1541 - 1542 and Exhibit R3 at Attachment SAE3

 264   Ibid PN 3187 - 3193, 3416 and 3421 - 3437

 265   Ibid PN 3194 - 3195

 266   Exhibit A5 at Attachment Document P

 267   Transcript PN 3283 - 3285

 268   Exhibit A5 at Attachment Document P

 269   Transcript PN 3283 - 3298

 270   Ibid PN 3306 - 3314

 271   Exhibit A5 at Attachment Document P

 272   Transcript PN 3333, 3342, 3345, 3350, 3457, 3465, 3471 and 3473

 273   Ibid PN 3281 - 3282 and 3330 - 3332

 274   Ibid PN 3327, 3329 and 3343, Exhibit A5 at Attachment Document M and Exhibit R6 at Attachment SMO10

 275   Ibid PN 3333 - 3336, 3343, 3458 - 3464, 3467 - 3470 and 3576 - 3577

 276   Ibid PN 3358 - 3360, 3578 - 3590 and 4030

 277   Exhibit R3 at Attachment SAE 1

 278   Ibid at Attachment SAE 2

 279   Transcript PN 3337

 280   Ibid PN 3360, 3369 and 3571 - 3574, Exhibit A5 at Attachment Document M and Exhibit R6 at Attachment SMO10

 281   Ibid PN 3361 - 3364 and 3366

 282   Exhibit A5 at Attachment Document M and Exhibit R6 at Attachment SMO10

 283   Transcript PN 3365

 284   Exhibit A5 at Attachment Document P

 285   Transcript PN 3367 - 3368 and 3370

 286   Ibid PN 3374 - 3375

 287   Ibid PN 3539 - 3545 and 3564

 288   Ibid PN 3548 - 3551

 289   Ibid PN 3891

 290   Ibid PN 3554 - 3555

 291   Ibid PN 3871 and Exhibit R5 at Attachment SMO4

 292   Ibid PN 3905

 293   Ibid PN 3618 - 3625 and 3868

 294   Ibid PN 3631 - 3632

 295   Ibid PN 3644 - 3646

 296   Ibid PN 3652 - 3658

 297   Ibid PN 3837 - 3838

 298   Exhibit R5 at Attachment SMO5

 299   Transcript PN 3874 - 3875

 300   Ibid PN 3881 - 3883

 301   Ibid PN 3680 - 3684

 302   Ibid PN 3690

 303   Ibid PN 3740 - 3742

 304   Ibid PN 3799 - 3800

 305   Ibid PN 3474 - 3476

 306   Ibid PN 2881 - 2894 and 2997

 307   Ibid PN 2927

 308   Ibid PN 2929 - 2934

 309   Ibid PN 2978 - 2980

 310   Ibid PN 2987 - 2988

 311   Ibid PN 2996

 312   Ibid PN 2997 - 3003

 313   Ibid PN 3005

 314   Ibid PN 3009 - 3011

 315   Ibid PN 3012

 316   Ibid PN 3031 - 3034

 317   Ibid PN 3072

 318   Ibid PN 3077

 319   Ibid PN 3078

 320   Ibid PN 3080 and 3096

 321   Ibid PN 3097 - 3100

 322   Ibid PN 3101 and 3799 - 3800

 323   Exhibit A5 at Attachment Document K

 324   Ibid at Attachment Document M

 325   Exhibit R3 at Attachment SAE1

 326   Ibid

 327   Ibid at Attachment SAE2

 328   Exhibit R5 at Attachment SMO4

 329   Exhibit A6, at Part 6d

 330   Ibid

 331   Exhibit R9 at paragraph 8

 332   PR592758

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