| [2017] FWC 5378 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danielle Logan
v
Knoxfield Medical Centre Pty Ltd T/A Colchester Medical Centre
(U2017/5702)
DEPUTY PRESIDENT MASSON |
MELBOURNE, 18 OCTOBER 2017 |
Application for an unfair dismissal remedy
[1] On 29 May 2017, Danielle Logan (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by Knoxfield Medical Centre Pty Ltd t/a Colchester Medical Centre (the Respondent).
[2] The application indicated that the date that the Applicant’s dismissal took effect was 8 May 2017.
[3] On 8 June 2017, the Respondent filed a response to the unfair dismissal application.
[4] On 15 June 2017, the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator, but remained unresolved at the end of the conciliation.
[5] Consequently the matter was listed for hearing.
[6] The Applicant filed written submissions and witness statements to the Fair Work Commission (the Commission) on 10 July 2017. The Respondent filed written submission and witness statements in the Commission on 31 July 2017.
[7] Section 396 of the Fair Work Act 2009 requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.
[8] At a Directions Hearing conducted on 18 August 2017, the Commission granted permission under s.596 of the Act for the parties to be represented by lawyers or paid agents.
[9] At the Directions Hearing, the Commission also sought submissions from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a hearing would be the most effective and efficient way to resolve the matter.
[10] The matter was set down for a two day hearing before the Commission in Melbourne on 28 and 29 August 2017.
[11] At the hearing the Applicant was represented by Mr J Tierney, barrister, instructed by Ryan Carlisle Thomas solicitors. Mr Tierney called three witnesses:
Ms Danielle Logan: Applicant
Ms Alison Miekle: MS Employment Support Service Consultant
Ms Jodie Kerrins: Industrial Organiser Australian Nursing and Midwifery Federation
[12] At the hearing the Respondent was represented by Mr J Tracey, barrister, instructed by TressCox solicitors. Mr Tracey called five witnesses:
Ms Nicole Loncar: Practice Manager Colchester Medical Centre
Ms Shirlie Mackie Senior Practice Nurse Colchester Medical Centre
Dr Igor Jakubowicz GP and Director Colchester Medical Centre
Dr David Foster GP and Director Colchester Medical Centre
Ms Denise Hearn Practice Nurse Colchester Medical Centre
[13] The Respondent operates medical clinics from two separate locations, the Colchester Medical Centre in Bayswater and the Knoxfield Medical Centre in Wantirna South.
[14] The Applicant commenced employment as a Division 2 Nurse with the Respondent on 28 April 2009. She was engaged on a permanent part-time basis and at the time of her dismissal was working two days per week. The Applicant worked primarily out of the Colchester Medical Centre.
[15] In April 2009, just prior to commencing employment with the Respondent, the Applicant was diagnosed with multiple sclerosis 1.
[16] The Applicant disclosed her condition to the Respondent prior to the commencement of her employment. The Respondent understood the progressive nature of multiple sclerosis and formed the view that there wold be no adverse effect on her capacity to carry out her duties for some time. During the course of her employment, the Respondent accommodated the Applicant’s needs arising from the progression of her multiple sclerosis, including the use of an electric wheelchair and time off as required.
[17] On 9 December 2015, Ms Karen Hickey, the Respondent’s Practice Manager at that time, spoke by telephone to Ms Alison Miekle and advised her that the Respondent was restructuring its staffing and all nursing staff would be required to work shifts at both the Knoxfield and Colchester practices. The change required the Applicant to work one day a week at the Knoxfield practice, whereas up to that point she had been based at the Colchester practice. The additional commute times were considered manageable by the Applicant due to her being able to take a day off after working at the Knoxfield practice each week. 2
[18] On 17 May 2016, the Applicant met with Ms Hickey and Ms Shirlie Mackie. The Respondent expressed concerns that the Applicant’s medical condition was deteriorating and raised the prospect of arranging for the Applicant to undertake an independent medical examination (IME). At this meeting, it was agreed that a further meeting would be arranged in order for Ms Miekle to attend.
[19] On 16 June 2016, Ms Hickey and Ms Denise Hearns raised with Ms Miekle during a telephone call a number of concerns held by the Respondent with respect to the Applicant’s work capacity. Concerns raised included the Applicant’s balance, her ability to give injections and her cognition. The requirement for an IME of the Applicant was again raised by the Respondent. 3
[20] On 11 August 2016, a meeting took place between Ms Miekle, Ms Hickey, Ms Mackie and the Applicant. While specific examples were not provided, concerns were again raised by the Respondent regarding the Applicant’s balance and ability to provide injections. Ms Hickey and Ms Mackie confirmed that the Applicant would be required to work longer shifts. Ms Miekle expressed concerns that longer shifts could acerbate the Applicant’s symptoms, particularly fatigue. Ms Mackie advised that she would provide details to Ms Miekle of an assessor for the purpose of conducting an IME of the Applicant. 4
[21] It was also agreed at that meeting on 11 August 2016 that the Applicant’s treating neurologist would assess her balance, mobility and fine motor skills and provide a report to the Practice, but that other practical clinical skills would have to be assessed through an independent source. 5
[22] On 18 August 2016, Ms Hickey met with the Applicant and confirmed that a notification to the Australian Health Professionals Regulatory Authority (AHPRA) would be made by the Respondent seeking a determination as to the Applicant’s capacity to perform her duties safely. The Applicant agreed to this. 6 At or about the same time, the Respondent wrote to the Applicant regarding their concerns about the safety and well-being of the Applicant and others within the clinical setting.7
[23] On 30 August 2016, a report from the Applicant’s treating neurologist, dated 4 August 2016, was received by the Respondent which confirmed that the Applicant had mild truncal and limb ataxia. The report went on to state;
“that on the basis of a nine pin hole test the neurologist said that in her opinion the Applicant would be safe around patients”. 8
[24] The Respondent was dissatisfied with the report furnished by the Applicant’s treating neurologist and on 5 September 2016, Dr Jakubowicz contacted AHPRA and notified them of their concerns regarding the Applicant’s ability to practice. 9
[25] On 10 October 2016, Ms Nicole Loncar wrote to the Applicant requesting her attendance at a meeting to be arranged within the following 7 days. The purpose of the meeting was to discuss;
“1. Your ability to continue to perform you duties as per your job description
2. Allegations made regarding inappropriate conduct with a patient of this practice” 10
[26] On 20 October 2016, the Applicant, accompanied by Ms Jodie Kerrins, met with Ms Loncar and Ms Mackie. Issues discussed at this meeting included allegations of complaints from patients, the Applicant’s inability to take blood and allegations from other employees that the Applicant “had engaged in a sexual relationship with a patient”. 11 The latter allegation was denied by the Applicant and was not raised again. The allegations of complaints by patients were non-specific and not expanded upon by Ms Loncar and Ms Mackie during the meeting.12
[27] On 9 November 2016, Ms Loncar wrote to the Applicant, again raising the Respondent’s concern that the Applicant could no longer fulfil the inherent requirements of her position. The Applicant was informed that practitioners at the practice were becoming increasingly reluctant to engage her services given her difficulty in assisting in procedures and administering injections. The Respondent advised that they were reluctant to take any determinative action regarding her employment in the absence of an IME. They confirmed that they had written to AHPRA requesting that a health assessment be undertaken as a matter of urgency. The Respondent directed the Applicant to take a period of paid leave with immediate effect pending the outcome of the AHPRA review. 13
[28] On 21 November 2016, AHPRA wrote to the Applicant advising that it received a notification on 5 September 2016 from the Respondent about her under the Health Practitioner Regulation National Law (the National Law). AHPRA advised the Applicant that:
“….the board decided to take no further action under section 151(1)(a) of the National Law.
The Board decided this because based on the evidence obtained, namely your treating practitioner reports, there is no information to suggest your health condition is affecting your ability to practise”. 14
[29] On or about 24 November 2016, Ms Loncar provided the Applicant with a revised Position Description (PD) which restricted her duties to clerical and administrative tasks. The revised duties included driving to local nursing homes to undertake administrative and non-clinical paperwork for the doctors. The Applicant declined to sign the revised PD. 15
[30] On the 13 December 2016, the Applicant contacted Ms Loncar and confirmed that she had been cleared by AHPRA to return to work, that her four weeks paid leave was up and that she intended to return to work on 15 December 2016. Ms Loncar subsequently confirmed by email to the Applicant on 14 December 2016 that the Respondent had sought clarification from AHPRA regarding the “clearance” but that the Applicant would be able to return to work on 15 December 2016 on the basis of the revised PD provided to her. 16
[31] On or about 14 December 2016, the Respondent’s legal advisers wrote to AHPRA on the Respondent’s behalf requesting that an IME be arranged for the Applicant. 17
[32] On the 27 February 2017, Ms Loncar again wrote to the Applicant regarding concerns held by the Respondent regarding her:
“retained capacity to undertake a number of core clinical competencies and the associated potential for patient care to be undermined”. 18
[33] Ms Loncar advised that the Practice would not allow the Applicant to return to her previous duties and enclosed an amended position description that would apply from 16 March 2017. The correspondence stated that the Nursing & Midwifery Board had declined:
“to arrange an independent health assessment and are unwilling to reconsider their position in this regard”. 19
[34] Ms Loncar further advised that the Respondent has not been able to arrange an IME to ensure that the Applicant did in fact retain capacity to perform her duties. Ms Loncar advised that there was an unacceptable risk to patient care and safety if the Applicant were to resume her previous duties. 20
[35] On 9 March 2017, the Australian Nursing and Midwifery Federation (ANMF) wrote to the Respondent on behalf of the Applicant regarding the amended PD and requested responses on a number of issues including: the specific concerns about the Applicant’s “retained capacity”and the core clinical competencies in question; whether the Applicant’s PD had been permanently amended; and what consequences would flow from the Applicant’s refusal to sign the amended PD. 21
[36] On 10 March 2017, TressCox lawyers replied to the ANMF on behalf of the Respondent. In doing so they acknowledged the AHPRA outcome, confirmed the clinical duties restrictions placed on the Applicant and offered to reconsider the matter in circumstances where an IME was undertaken by the Applicant. 22
[37] On 15 March 2017, the ANMF replied to TressCox’s 10 March 2017 correspondence. The ANMF requested details on alleged concerns over the Applicant’s capacity, and sought responses to particular questions posed by the ANMF in their 9 March 2017 correspondence that had not been answered. 23
[38] On 16 March 2017, TressCox lawyers replied to the ANMF on behalf of the Respondent and confirmed that the Applicant’s PD would be permanently amended and they advised that the the Applicant’s employment would be no longer tenable if she declined to sign the revised PD and continued to decline the request for an IME. 24
[39] On 27 April 2017, the Respondent wrote to the Applicant requesting her attendance at a meeting to be held on 4 May 2017 for the purpose of discussing her employment in the Practice. 25
[40] On 4 May 2017, a meeting was conducted at which the Applicant, Ms Kerrins, Ms Loncar and Mr Felmingham (of TressCox lawyers) were present. At the outset of the meeting the Respondent indicated its intention to terminate the Applicant’s employment although it had not made a final decision. A number of complaints and concerns were then raised in relation to the Applicant’s capacity to perform her duties. The Respondent acknowledged during the meeting that the specific details of the complaints and concerns had not been raised previously with the Applicant out of their concern to support her rather than manage her on a performance basis. At the conclusion of the meeting the Applicant was provided with a letter by the Respondent. 26
[41] On 5 May 2017, ANMF wrote to the Respondent on behalf of the Applicant requesting details of the complaints made against her “including names and dates of complaints and details of the alleged poor performance”. 27 The ANMF also requested that the Respondent “refrain from making a final decision until such time as she has had the opportunity to respond to allegations, having been provided all details in order to do so…”28
[42] On 8 May 2017, the Respondent wrote to the Applicant confirming the termination of her employment “for reasons explained at the meeting” 29 effective immediately. The termination was initiated by the Respondent due to their concerns over the Applicant’s capacity to safely carry out her duties and the Respondent’s inability to find suitable duties the Applicant could reliably perform. The Applicant received four weeks’ pay in lieu of notice on termination.30
[43] Mr Tierney, who appeared for the Applicant, made oral submissions during the Hearing that supplemented documentary material provided in the form of an outline of submissions.
[44] It was submitted that the termination of the Applicant on the grounds of her medical incapacity was harsh, unjust or unreasonable, that there was not a valid reason for the Applicant’s dismissal and that she was denied procedural fairness.
[45] It was submitted that the Applicant had consistently maintained a willingness to undertake an IME as sought by the Respondent to determine her medical capacity. Notwithstanding the Respondent’s stated requirement for the Applicant to undergo an IME, no steps were taken by the Respondent to press the requirement in the wake of the AHPRA decision in November 2016 or at any time prior to the decision to terminate the Applicant’s employment on 8 May 2017.
[46] While unilateral adjustments were made to the Applicant’s duties over time, it was submitted that the Applicant remained capable of fulfilling the inherent requirements of the role for which she was employed. Further, it was submitted that there was no independent medical evidence available to the Respondent at the time of the termination of the Applicant’s employment that supported the Respondent’s decision to dismiss the Applicant.
[47] It was submitted that the only medical evidence available to the Respondent at the time of the Applicant’s termination of employment on 8 May 2017 was the opinion previously provided by the Applicant’s treating neurologist in 2016 and the AHPRA review outcome confirmed to the Applicant and Practice management in November 2016.
[48] It was submitted that the purported reliance by the Respondent on the opinions held by the Directors within the practice, Dr Jakubowicz and Dr Foster, regarding the Applicant’s capacity to undertake her duties, did not withstand scrutiny. They (the Practice Directors) were, in Mr Tierney’s submission, General Practitioners, not specialists, and their opinions on the Applicant were not formed or expressed as expert medical opinions. Consequently they could not be relied upon to found a valid reason for the termination of the Applicant’s employment.
[49] Mr Tierney highlighted the acknowledgement by both Dr Forster and Dr Jakubowicz that neither were neurologists, that they had not conducted any direct medical assessment of the Applicant and that in the circumstances where the Applicant is an employee it would not have been appropriate for them to undertake such an assessment.
[50] Dealing with the incidents relied on by the Respondent as evidence of the Applicant’s lack of capacity, Mr Tierney submitted that these alleged incidents were not put to the Applicant at the time they were alleged to have occurred, they were accepted at face value by the Respondent as evidence of reduced cognitive capacity and were never documented or raised in the context of performance management or disciplinary action. It was submitted that in any case the Applicant denied the majority of the allegations or had no recollection of the incidents alleged.
[51] Mr Tierney submitted that the appropriate principles for establishing whether there was valid reason for dismissal in cases of medical incapacity could be found in the Fair Work Commission Full Bench decision of Lion Dairy and Drinks Milk Limited v Norman (Lion Dairy) 31. Mr Tierney submitted that contrary to the principles summarised by the Full Bench in that case, the Respondent had failed to obtain an opinion from an appropriate medical practitioner to confirm the Applicant’s capacity.
[52] As regards procedural fairness, it was submitted that the Respondent had made its mind up prior to the 4 May 2017 meeting. Mr Tierney submitted that this was evident by the statement made by the Respondent during that meeting and which was confirmed in the correspondence handed to the Applicant at the conclusion of that meeting in which the Respondent stated that it had “come to the view that we have no alternative but to terminate your employment”. 32
[53] It was submitted that the Respondent’s failure to provide further detail of the alleged incidents or allow further time as requested by the ANMF in its 5 May 2017 correspondence supports the contention that the Respondent had already made its decision to terminate the Applicant’s employment. Mr Tierney characterised the Respondent’s approach to its decision making on the Applicant’s employment as “merely going through the motions” 33 which had the effect of denying the Applicant procedural fairness.
[54] In summary, Mr Tierney submitted that the dismissal of the Applicant was unfair, that the Applicant was dismissed without a valid reason, was not warned in relation to performance issues and was not provided with an opportunity to respond. Mr Tierney submitted that, in the absence of medical evidence that the Applicant lacked capacity to perform her duties, she should be reinstated to her former position with a further remedy of lost pay from the date of termination.
[55] Mr Tierney also submitted that if the Commission were to find that reinstatement was not appropriate, then regard should be had to the Applicant’s expectation of ongoing employment, that her employment would have continued indefinitely and that she should be entitled to the maximum amount of compensation available under the Act.
[56] Mr Tracey, who appeared for the Respondent, made oral submissions during the Hearing that supplemented documentary material provided in the form of an outline of submissions.
[57] It was submitted that the Applicant was terminated because she lacked the capacity to competently and safely perform the role for which she was employed. It was submitted that this lack of capacity, along with her performance justified the Respondent’s decision to dismiss the Applicant.
[58] It was submitted that the Respondent formed a view that the Applicant’s medical condition had deteriorated from early 2016. The deterioration, it was submitted, manifested in the Applicant’s impaired gait and mobility, hand tremors and ultimately in her inability to perform even the modified duties that were implemented in early 2017.
[59] It was submitted that the concerns held by the Respondent were raised with the Applicant on a number of occasions over the 12 month period prior to her termination of employment.
[60] It was submitted that while the Respondent had advised the Applicant of its requirement for her to undergo an IME, the fact that an IME was not ultimately obtained or relied upon did not mean the Respondent lacked an appropriate medical opinion that supported its decision to dismiss the Applicant.
[61] It was submitted that the Respondent was able to rely on the medical opinions of their Directors, Dr Jakubowicz and Dr Foster, who were highly experienced general practitioners. It was submitted that the Directors formed a view about the Applicant’s diminished capacity to undertake even modified duties based on their own personal observations and on incidents reported to them by other staff members.
[62] It was submitted that the first hand observations of the Applicant’s work capacity by the Directors and staff could be characterised as superior in some ways to that of an opinion rendered by a specialist. This, it was submitted, was due to the contemporaneous nature of the observations made and the views formed by the Directors and staff regarding the Applicant’s capacity over an extended period of time up to and including the date of the Applicant’s dismissal.
[63] Further to the medical opinions formed by the Directors, it was submitted that a series of incidents and events provided evidence of the Applicant’s performance failures and failures indicating a lack of capacity.
[64] Mr Tracey submitted that the combination of the medical opinions of the Directors and the incidents of the Applicant’s performance or capacity shortcomings provided a valid reason to dismiss her.
[65] It was further submitted that those reasons for dismissal were put to the Applicant in the meeting of 4 May 2017 and that she was given an opportunity to respond both in that meeting and in the days prior to the Respondent’s final decision to dismiss her on the 8 May 2017.
[66] It was submitted that there was a valid reason or reasons for the Applicant’s dismissal, she was notified of the reasons, she was provided with an opportunity to respond, she was given an opportunity to have a support person present at all discussions relating to her performance and dismissal and in all of the circumstances the Applicant’s dismissal was fair and justified by the Applicant’s incapacity, conduct and performance.
[67] Mr Tracey submitted that in the event that the Commission found the termination to be unfair then reinstatement was not appropriate due to the Applicant having failed to demonstrate her capacity to perform the inherent requirements of her role.
[68] It was further submitted that it was the view of Respondent’s Directors and management that the Applicant was not competent and that the Directors had lost trust and confidence in the Applicant’s capacity to perform her role. This, it was submitted, was further reinforced by the Applicant’s refusal to recognise the deterioration in her condition.
[69] For the purpose of compensation calculation, it was submitted that regard should be had to; the prospect that the Applicant’s employment would not have continued beyond a further 3 months; the limited mitigation of loss evidenced; and the matter of misconduct (October 2016 yelling incident). It was submitted that on those bases, the compensation payment should be limited to no more than three month’s pay.
[70] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.
[71] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Note: High income threshold indexed to $142,000 from 1 July 2017.
[72] There is no dispute, and I am satisfied, that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.
[73] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.
[74] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[75] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in subsection 385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:
“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.”
[76] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 34 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[77] I am under a duty to consider each of these criteria in reaching my conclusion. 35
[78] I will now consider each of the criteria at s.387 of the Act separately.
[79] I turn first to consider whether there was a valid reason related to the person’s capacity or conduct.
[80] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 36 The reasons should be “sound, defensible and well founded”37 and should not be “capricious, fanciful, spiteful or prejudiced.”38
[81] The Respondent terminated the Applicant’s employment on the grounds of her medical capacity. It had concluded that due to the Applicant’s deteriorating medical condition, she was:
“not able to carry out many of the inherent requirements of the role of a practice nurse without exposing our patients to risk to their safety, and exposing the practice to potential legal liability”. 39
[82] The Respondent also advised the Applicant that despite efforts made to create an alternative position with duties consisting of a clerical and administrative nature it did;
“not believe there is any reasonable measure that we could take which would enable you to overcome the disability which appears to be caused by your medical condition sufficiently to perform the requirements of the any position that we could potentially make available within the Practice.” 40
[83] The conclusion of the Respondent was said to be based on medical evidence and also on the reported incidents that demonstrated performance and capacity deficiencies of the Applicant. I will deal first with the medical capacity based reasons.
Applicant’s Medical Capacity
[84] In cases relating to medical capacity I accept the principles summarised in Lion Dairy where the Full Bench stated as follows:
[25] It is possible to extract the following principles from the above cases:
[85] One of the challenges confronting the Commission in assessing the medical evidence in this matter is not so much an abundance of medical opinion but rather the absence of it. While reference was made throughout the proceedings to the Applicant’s treating neurologist report from 2016 and the AHPRA review, the only material provided to the Commission that was characterised by the Respondent as medical opinion was that contained in the witness statements of Dr Jakubowicz and Dr Foster. No formal medical reports were tendered in evidence by either the Applicant or Respondent.
[86] The opinions expressed in the witness statements of both Dr Jabubowicz and Dr Foster were based on their direct observations of the Applicant which were obtained through their day to day work. Their opinions were also based in part on the reports of incidents provided to them by other staff members. The combination of their direct observations and the staff reports informed their views which can be summarised as follows:
● The Applicant’s multiple sclerosis condition was progressing;
● By early 2016, the Applicant had developed a serious hand tremor;
● From early 2016, the Applicant’s general balance and gait presented occupational health risks;
● The Applicant could not manage patients in an emergency situation;
● By late 2016, the Applicant was no longer able to perform the full range of duties of a practice nurse, thus necessitating a restriction of her duties to clerical and administrative duties;
● In April 2017, the Applicant’s condition had developed to a point whereby she was no longer capable of performing the adjusted duties and that some of the issues raised were considered symptomatic of serious cognitive deterioration.
[87] The views of the Directors were not expressed as a clinical diagnosis of the Applicant or as medical reports informed by a formal assessment of the Applicant, scans or other tests, review of patient history or through consideration of specialist reports. 42
[88] Significantly, both Dr Jakubowicz and Dr Foster acknowledged that when dealing with a patient that presented with symptoms indicating multiple sclerosis they would ordinarily refer the patient to a specialist. 43
[89] Balanced against the views of the Directors was that of the Applicant’s 2016 treating neurologist report which was not provided in evidence, but which stated that the Applicant “would be safe around patients”. 44 The perceived shortcomings of that report, which was criticised by Dr Jakubowicz as being “perfunctory”, also prompted Dr Jakubowicz to notify AHPRA in September 2016 of the Respondent’s concerns regarding the Applicant’s capacity.45
[90] The Respondent’s concern for the Applicant’s condition and her capacity to undertake her normal duties is evident in that the Respondent consistently referred to a need for the Applicant to undergo an IME. This was discussed directly with the Applicant and referred to in various correspondence to her. This highlights the Respondent’s view as to the importance of securing an independent review in assessing the Applicant’s capacity. The evidence of Dr Foster on the importance of an independent assessment is pertinent. 46
[91] I note that there was no evidence pressed or submissions made that indicated that the Applicant had refused to undertake an IME.
[92] Responsibility for the Respondent to identify an appropriate organisation or medical practitioner to conduct an IME fell to Ms Mackie. Ms Mackie’s efforts were confined to enquiring with the ANMF, AHPRA and some of Ms Mackie’s colleagues (not identified). The efforts of Ms Mackie appear to have concluded by late 2016.
[93] Efforts by the Respondent to identify an appropriate organisation and/or specialist to conduct such an IME were unsuccessful. That lack of success in identifying a person or organisation capable of conducting an IME is surprising given the high level of experience of the Practice Directors and staff and the likely contacts they would have developed over many years of conducting their business.
[94] Notwithstanding the apparent exhaustion of efforts to arrange an IME in late 2016, the Respondent continued to make reference to a need for an IME in further correspondence to the Applicant during 2017. The Respondent’s inability to arrange or enforce a requirement for an IME, which they had been seeking for several months, left them in a position where they were content to rely on the views of the Directors as to the Applicant’s medical condition and capacity.
[95] In the present case, I was urged by the Respondent to accept that, for the purpose of considering whether an appropriate medical opinion existed, I should have regard to the unique circumstances of the case. Specifically, the Directors of the Respondent, who were medical practitioners of many years’ experience, and that their ability to observe and assess the Applicant over a period of time placed them in an arguably stronger position to consider the Applicant’s capacity than would have been the case were a specialist to have conducted an IME.
[96] The Respondent’s argument on the relative merit of the Directors’ medical opinions on the Applicant versus that of an IME is significantly undermined by the Respondent’s regular reference to the need for an IME during the twelve months prior to the Applicant’s dismissal. That need for an IME was referred to both before and subsequent to the November 2016 AHPRA decision concerning the Applicant.
[97] In the circumstances, I am not satisfied that the views of the Directors of the Practice, albeit informed by their first hand observations of the Applicant and through second hand staff reports, meet the standard of a “clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job” 47 as envisaged in the principles summarised by the Full Bench in Lion Dairy.
[98] The absence of such a finding is suggestive that there was not a valid reason for the Applicant’s dismissal. However it is also necessary to consider the alleged performance and capacity incidents to ultimately determine whether a valid reason existed for the Applicant’s dismissal.
Performance and Capacity Incidents
[99] The Respondent also sought to rely on a series of incidents and events involving the Applicant that indicated performance failures and failures indicating a lack of capacity. The incidents and events relied on by the Respondent included:
1. Failure to attend work meetings when required;
2. Failure to properly complete patient Care Plans;
3. Failure to accurately check and record vaccines and medicines;
4. Throwing out vaccines that were within their use-by dates;
5. Yelling in the presence of patients in 2016 (alleged misconduct);
6. Failure to take initiative and sitting around not working;
7. A phone call to a patient on 28 February 2017;
8. Assessed inability to deal with emergency situations;
9. Failure to accurately check a patient file regarding a child vaccine requirement;
10. Failure to understand how to conduct a manual blood pressure test;
11. Sorting out of the medicine cupboard was not completed;
12. Forgetting how to monitor the temperature on the vaccine refrigerator; and
13. Failure to understand the difference between finger prick blood glucose and a HBA1C test.
[100] I will now deal each of the alleged performance and capacity issues.
1. Failure to attend work meetings when required
[101] Evidence was provided by Dr Jakubowicz as to the difficulty in arranging the attendance of the Applicant to meetings regarding her condition. Reference was made to a number of meetings that the Applicant cancelled or deferred in May and June 2016. 48 Dr Foster in his evidence did however acknowledge that the Applicant had in fact attended various other meetings when requested.49
[102] Ms Loncar in her evidence also referred to the difficulties of engaging the Applicant. When pressed during cross examination, Ms Loncar acknowledged the conduct of various meetings involving the Applicant and the Respondent both prior to and following Ms Loncar’s commencement of employment with the Respondent in 2016. 50
[103] The Applicant’s evidence was that she engaged in various discussions both with the former Practice Manager, Ms Hickey, during 2015 and 2016 and, subsequent to Ms Hickey’s departure in 2016, with the Respondent’s Management regarding her condition. This included formal meetings on 17 May 2016 and in August 2016. 51 She did not resist the proposition put to her during her cross examination that she may have cancelled or deferred certain meetings and in one case (4 May 2016) at late notice.52
[104] There is ample evidence that the Applicant did in fact attend a number of meetings with the Respondent during the 2016/2017 period 53, both on her own and at times accompanied by either Ms Miekle or Ms Kerrins.
[105] I am satisfied that while a small number of meetings were cancelled or deferred by the Applicant, there was no evidence of a persistent or wilful refusal of the Applicant to attend meetings.
2. Failure to properly complete patient Care Plans
[106] Ms Loncar in her evidence stated that on commencing in her role with the Respondent in September 2016 she received various complaints from other nurses that Assessment and Care Plans (Care Plans) filled out by the Applicant were incomplete or often inaccurate. Furthermore, she stated that the Applicant’s forms had to be reviewed and checked by other nursing staff or by one of the doctors. 54
[107] Dr Foster also provided evidence in relation to the poor quality of Care Plans completed by the Applicant which he was responsible for signing off on. 55
[108] The Applicant during her cross-examination rejected the evidence of Dr Foster on her alleged failure to accurately complete the Care Plans. She acknowledged the importance of the accurate completion of the forms but did not accept that she had failed to complete them. Nor did she recall any discussion between Dr Foster and herself over the issue. 56
[109] I found the Applicant’s denial of any issues related to completion of the Care Plans unconvincing. I found the evidence of Dr Foster on this issue more convincing and it was also supported which by the complaints Ms Loncar referred to in her evidence.
[110] I am satisfied that the Applicant had failed to accurately complete the required Care Plans.
3. Failure to accurately check and record vaccines and medicines
[111] Ms Loncar gave evidence that she had requested the Applicant as part of her duties to check and maintain a record of vaccines and medicines. To assist that process an exercise book was provided to the Applicant to allow a record to be maintained. Ms Loncar stated that to the best of her knowledge the Applicant only made recordings in the book once. 57
[112] The Applicant in her evidence agreed that a discussion with Ms Loncar regarding maintaining a record of the vaccine and medicine expiry dates in an exercise book occurred in February 2017. 58 The Applicant disagreed with the assertion that she had failed to update the exercise book. She stated that it was only needed to be done once and that all that was required was to progressively rule a line through the list of expired medication and vaccines.59 The Applicant denied that she was required to do it regularly because her “job description changed from week to week”.60 She also referred to the fact that she was dismissed not long after the introduction of the exercise book.61
[113] I am not satisfied on the evidence that there was a particular failure on the part of the Applicant to properly maintain the exercise book record of vaccines and medicine. I note the dismissal took effect a relatively short period after the introduction of the recording procedure.
4. Throwing out vaccines that were within use-by dates
[114] Ms Loncar’s evidence was that she had received reports from nursing staff that the Applicant had been throwing out vaccines that were within their use-by dates. She also stated that on one occasion in or about February 2017 she personally checked and confirmed that vaccines within their use-by date had been thrown out. 62
[115] Ms Hearn also provided evidence that she found that the Applicant, in sorting out the medication cupboard, had thrown out vaccines within their use-by dates and retained some vaccines that were beyond their use-by dates. 63
[116] Neither Ms Loncar nor Ms Hearn raised their concerns directly with the Applicant or made a record at the time.
[117] The Applicant in her evidence denied the allegations that she had thrown out vaccines that should have been retained and/or retained vaccines that should have been thrown out. 64
[118] While the Respondent failed to document or raise the issues with the Applicant at the time their concerns arose, the evidence of Ms Hearn’s supported by Ms Loncar on the issue was unambiguous and must be balanced against the Applicant’s less convincing denial of the allegation.
[119] While the absence of records including times and dates is unhelpful, I am satisfied that there were issues with the maintenance of the vaccine stock on the part of the Applicant.
5. Yelling in the presence of patients in 2016 (alleged misconduct)
[120] Ms Loncar gave evidence that she sent the Applicant registered mail correspondence on 10 October 2016. Ms Loncar stated that following the receipt of this correspondence, the Applicant arrived at work and approached Ms Loncar in a hostile manner which included raising her voice in the reception area in front of patients and reception staff. 65
[121] The Applicant’s evidence was that while the exchange with Ms Loncar did occur in the reception area it did not take place in front of patients. The Applicant had a limited recollection of what she actually said during the exchange. She was also equivocal on whether she yelled at Ms Loncar. She did however deny waving the letter around, using multiple sclerosis as a “call card” in the exchange or being so aggressive as to create in Ms Loncar a fear that she (the Applicant) was going to strike Ms Loncar. 66
[122] I find that there was an exchange between the Applicant and Ms Loncar following the Applicant’s receipt of the 10 October correspondence. I also find that it is likely the Applicant was upset about the correspondence when she approached Ms Loncar in the reception area. I am however unable to conclude on the evidence before me whether her demeanour and behaviour was so aggressive as to be worthy of censure.
[123] I am not satisfied that the Applicant’s conduct during the exchange with Ms Loncar constituted misconduct. I note that in any case the Respondent did not raise their concerns with the Applicant in the wake of the October 2016 incident as a disciplinary matter.
6. Failure to take initiative and sitting around not working
[124] Ms Loncar gave evidence that the Applicant lacked initiative and on arrival at work would wait for tasks to be allocated to her. When Ms Loncar was not working on Friday’s she also stated that reception staff reported to her that the Applicant would sit around doing nothing. 67
[125] The Applicant in her evidence conceded that on occasions she would wait for work to be allocated to her if there was no work left for her. The Applicant rejected Ms Loncar’s evidence that she would sit around doing nothing on Fridays. She stated that when work was not left for her she would go through the Doctor’s books checking on patients for the day. 68
[126] There was no direct evidence brought by the Respondent in relation to the Applicant’s work activity on Fridays when Ms Loncar was not in the office. Rather it was based on second hand reports provided to Ms Loncar which I place no weight on.
[127] I am not satisfied on the evidence that the Respondent has made out its allegations regarding the claimed failures of the Applicant to show initiative or that she sat around doing nothing while in the clinic.
7. 28 February 2017 phone call to patient
[128] Ms Loncar gave evidence of a telephone call made by the Applicant to a patient on 28 February 2017 as part of the patient recall process. Ms Loncar stated that the Applicant did not make a record of the call or provide an explanation for the particular call. Having received the message, the patient called back in a concerned state as to why he had been contacted. No explanation for the message was able to be offered to the patient by the Practice staff. 69
[129] The Applicant was taken to this issue in cross examination but did not offer an explanation of the call referred to in evidence by Ms Loncar.
[130] I am satisfied that the Applicant had made a call to a patient in error as claimed by the Respondent.
8. Inability to deal with emergency situations
[131] Dr Jakubowcz gave evidence that the Respondent had formed a view by May 2016 that the Applicant’s condition had deteriorated to a point that she had become physically incapable of performing some duties that were inherent to her role including dealing with patients with trauma and serious bleeding. 70
[132] There was also considerable evidence that during 2016 and 2017 there was correspondence and meetings between the Respondent and the Applicant regarding the Respondent’s concerns about her ability to safely undertake clinical nursing duties.
[133] The Applicant in her evidence acknowledged that her mobility had deteriorated since about April 2016. 71 However, she rejected the contention that her medical condition was such that she was incapable of providing assistance in the event of an emergency situation.
[134] The Applicant also gave evidence that the incidence of such emergency events were rare. She also denied the proposition that she was unable to provide injections or draw blood and referred to the fact that Melbourne Pathology had an office next door which obviated the need for the Respondent’s staff to take blood. 72
[135] I am satisfied that the Respondent had a genuine belief, based on the observations and opinions of its Management and the Directors, that the Applicant’s medical condition would have adversely impacted on her ability to respond in an emergency situation. This concern was made clear throughout the twelve month period leading up to the Applicant’s dismissal. Given their concerns, it was reasonable for the Respondent to take steps to protect the Applicant, its staff and patients from risk of harm.
[136] However, the views and opinions of the Respondent’s management and Directors as to the Applicant’s capacity to render emergency assistance were at odds with the Applicant’s treating neurologist opinion and the AHPRA review decision.
[137] I accept that the Respondent, in restricting the Applicant’s duties, acted in what it believed to be the best interests of the Applicant, staff, patients and the Practice.
[138] However, I am not satisfied on the evidence before me that the Applicant would have been, at the time of her dismissal, unable to deal with emergency situations. The absence of an IME was particularly relevant to my consideration of this issue.
9. Failure to accurately check a patient file regarding a child vaccine requirement
[139] Ms Mackie gave evidence that the Applicant was given the task of compiling a list of all patients under the age of two for the purpose of determining eligibility to receive a meningococcal B vaccination. Ms Mackie stated that the Applicant included in that list the name of a child who had recently died and that the death of the child was noted on the deceased child’s file. 73 It was only through the intervention of other staff in reviewing the list and identifying the error that a call to the parents of the deceased child was averted.
[140] Ms Mackie rejected the proposition put to her during cross examination that the error was due to the deceased child’s file not having been deactivated. Ms Mackie was adamant that a review of the patient file, which she stated was required as part of the process, would have revealed the child’s deceased status. 74
[141] The Applicant acknowledged that the deceased child was incorrectly included in the vaccination recall list. She explained that the error was due to the file not having been made inactive and that it was not her responsibility to check the personal files. 75
[142] I am satisfied that a significant error was made by the Applicant in compiling the vaccination recall list. Had it not been detected the error was likely to have been extremely distressing for the deceased child’s parents and at the very least embarrassing for the Practice.
[143] Further, I was not satisfied with the Applicant’s explanation of the error or the limits of responsibility she claimed to have had in compiling the list.
10. Failure to understand how to conduct a manual blood pressure test
[144] Ms Hearn gave evidence that in March 2017 the Applicant asked Ms Hearn to show her how to conduct a manual blood pressure test. Ms Hearn expressed concern that the Applicant would ask such a question given it was a routine nursing task. 76
[145] Under cross examination, Ms Hearn was adamant that the Applicant sought instruction on how to use a blood pressure testing device that consisted of a standard Velcro inflatable cuff and a manual pump. Ms Hearn rejected the proposition put to her that the device in issue was an automatic testing device and was designed for a right handed person which the Applicant had difficulty using as she was left handed. Ms Hearn stated that the device was universal and could be used by left and right handed people. 77
[146] The Applicant in her evidence stated that her confusion and difficulty with the blood pressure test was due to the equipment being a German brand sphygmomanometer which was designed for right handed people. 78
[147] I found Ms Hearn’s recollection of events and evidence far more convincing than that of the Applicant and on that basis I am satisfied that the Applicant was confused with the process of conducting a manual blood pressure test. I draw no conclusions as to the reasons for that confusion.
11. Sorting out of the medicine cupboard not completed
[148] Ms Mackie gave evidence that in March 2017, Ms Hearn raised concerns with her about the Applicant not properly maintaining the vaccines and medicine storage. She referred in her evidence to the Applicant half completing the required tasks. 79
[149] Ms Hearn stated that on four or five occasions in March 2017 she noticed that the task of sorting out the medicine cupboard by the Applicant had not been completed and that she (Ms Hearn) had to complete the task. Under cross examination Ms Hearn denied the proposition put to her that another staff member may have been responsible for the issues in the medicine storage cupboard and fridge.
[150] The Applicant in her evidence rejected the Respondent’s assertion that she had on various occasions left cupboards open with medication left out. She did however concede that at times her work priorities changed during the course of her day which required her to leave particular tasks to attend to other duties. The Applicant was also unable to recall aspects of the exchange between herself and Ms Hearn over the issue. 80
[151] I accept Ms Hearn’s evidence given her clear recollection of events and on that basis I am satisfied that there were shortcomings in relation to the Applicant’s maintenance of the medicine storage area.
12. Forgot how to monitor the temperature on the vaccine refrigerator
[152] Ms Hearn gave evidence that on commencement with the Practice in October 2015 she asked the Applicant to show her what was involved in monitoring and resetting the temperature on the vaccine fridge. Ms Hearn stated that the Applicant advised her that she did not know how to reset the temperature and that resetting the temperature was not required. 81
[153] Under cross examination Ms Hearn remained very clear as to the conversation she had with the Applicant regarding the fridge temperature check and reset procedure although she conceded that it was possible that the Applicant may simply have forgotten the procedure at the time of the conversation. 82
[154] The Applicant in her evidence did not recall saying to Ms Hearn in the October 2015 discussion that she did not know how to check or reset the vaccine fridge temperature. 83 The Applicant in her evidence acknowledged the importance of the vaccine fridge temperature and the need to monitor it on a regular basis.84
[155] I note that this particular incident occurred in or about late October 2015 which was well before the point at which the Respondent had developed concerns regarding what it believed to be the Applicant’s cognitive deterioration.
[156] I am satisfied that a conversation did occur between the Applicant and Ms Hearn regarding the fridge temperature monitoring and reset. I found Ms Hearn’s evidence to be credible on this point and I am also satisfied that there was an apparent lack understanding on the part of the Applicant at that time. I draw no conclusions as to the reasons for the Applicant’s lack of understanding.
13. Failure to understand the difference between finger prick blood glucose v HBA1C test
[157] Ms Hearn gave evidence that during a conversation with the Applicant in February 2017, the Applicant reported to Ms Hearn that she (the Applicant) did not know the difference between a finger prick blood glucose level test and a HBA1C (glycosated haemoglobin) test. Ms Hearn regarded such knowledge as fundamental to performing nursing duties in general practice. 85
[158] The Applicant in her evidence did not recall the conversation with Ms Hearn, but denied stating to Ms Hearn that she did not know the difference between the two tests. 86
[159] I have preferred Ms Hearn’s evidence on this issue given her clear recollection of the conversation.
[160] I am satisfied that the Applicant did report to Ms Hearn that she did not understand the difference between a finger prick blood glucose level test and a HBA1C test. I draw no conclusions as to the reasons for the Applicant’s apparent lack of understanding of the difference in the tests.
[161] The Respondent in seeking to establish that there was a valid reason for the Applicant’s dismissal has sought to rely on medical evidence, which is confined to the opinions of the Respondent’s Directors, Dr Jakubowicz and Dr Foster. They have also sought to rely on various issues and events as evidence of the Applicant’s performance failures and failures indicating a lack of capacity.
[162] It is clear that the respondent held genuine concerns regarding the Applicant’s medical condition and its impact on her ability to safely and productively carry out her duties. Those concerns were raised regularly with the Applicant during 2016 and 2017. Those concerns escalated through the course of 2016 and 2017 to the point where the Respondent concluded that the Applicant was not only physically incapable of carrying out her normal duties but that she was also experiencing cognitive deterioration as well due to her multiple sclerosis.
[163] Having observed the witnesses and weighed the evidence, I have no doubt as to the genuineness of the Respondent’s belief regarding the Applicant’s condition and capacity.
[164] Nevertheless, for reasons previously outlined I am not satisfied that, at the time of the Applicant’s dismissal, there was “a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job”. As such I am not satisfied that the medical evidence available supports a finding that the Applicant was not capable of performing the inherent requirements of her role at the time of her dismissal.
[165] As regards the performance or capacity issues relied on by the Respondent, I am satisfied that a number of deficiencies in the Applicant’s performance were present. They included:
● The failure to properly complete patient Care Plans;
● Throwing out vaccines that were within use-by dates;
● The 28 February 2017 phone call to a patient;
● The failure to accurately check a patient file regarding a child vaccine requirement;
● The failure to understand how to conduct a manual blood pressure test;
● Sorting out of the medicine cupboard not completed;
● Forgetting how to monitor the temperature on the vaccine refrigerator; and
● The failure to understand the difference between finger prick blood glucose and a HBA1C test
[166] Each of those issues and incidents in isolation may not be regarded as necessarily significant. However, a number of the identified performance issues relate to key elements of the Amended Position Description provided to the Applicant in February 2017. 87 Specifically, the Care Plan and maintenance of the cold chain for vaccines and medicine storage responsibilities were key requirements in that Position Description.
[167] I am satisfied that taken in aggregate, the performance issues reveal that the Applicant was not able to meet the reasonable requirements of even the modified role that had been structured by the Respondent for the Applicant.
[168] I am not able or prepared to determine whether the performance issues were symptomatic of the Applicant’s medical condition progressing. To do so would require me to make judgements in the absence of appropriate medical reports and evidence.
[169] I am however satisfied that the identified performance issues in totality were significant and that at the time of the Applicant’s dismissal the Respondent had a valid reason to terminate the Applicant based on her capacity or conduct.
[170] The Applicant received correspondence from the Respondent on 4 May 2017 and 8 May 2017 detailing the reasons for her termination.
[171] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 88 in explicit terms89 and in plain and clear terms.90 In Crozier v Palazzo Corporation Pty Ltd91 the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 92
[172] I find the Applicant was notified of the reason for her dismissal in plain and clear terms.
[173] The Applicant’s evidence was that she received a letter from the Respondent on 27 April 2017 inviting her to attend a meeting on 4 May 2017 with the Respondent to discuss her employment. 93
[174] Ms Kerrin’s evidence was that at the opening of the 4 May 2017 meeting the Respondent advised that it had made a decision to terminate the Applicant’s employment but that the final decision would not be made until 8 May 2017. 94
[175] Ms Kerrin’s version of what was said at the opening of the 4 May 2017 meeting was confirmed by the correspondence handed to the Applicant by the Respondent at the conclusion of the meeting. 95
[176] Subsequent correspondence was sent from the ANMF to the Respondent on 5 May 2017 requesting additional details of the allegations made during the 4 May 2017 meeting regarding the Applicant’s capacity and incidents. The ANMF requested that the Respondent refrain from terminating the Applicant until an opportunity was given for the Applicant to consider and respond to the additional information sought.
[177] Ms Loncar in her evidence rejected the proposition that the Company had already made its mind up prior to the 4 May 2017 meeting. She stated that the Applicant was given an opportunity to respond both during the meeting and following it. 96 She did however, in her evidence, express an apparent frustration at what she described as the ANMF just “dragging it out” in sending the 5 May 2017 correspondence to the Respondent requesting additional information and time.97
[178] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 98
[179] The Respondent’s general concerns regarding the Applicant’s capacity were well known to the Applicant. However, the specific allegations regarding incidents/events evidencing the Applicant’s performance or capacity issues were not put to the Applicant until the 4 May 2017 meeting. In those circumstances it was not unreasonable for the ANMF to make a request for the additional and specific information to enable a considered response by the Applicant.
[180] The Respondent did not accede to the ANMF’s requests to furnish the specific information or delay the termination decision to allow the Applicant an opportunity to consider and respond to the requested information.
[181] I am satisfied that by the Respondent having moved to terminate the Applicant without providing the additional requested details had the practical effect of denying the Applicant an opportunity to respond to the reasons relied on for her termination of employment.
[182] The Applicant’s evidence was that she received a letter from the Respondent on 27 April 2017 inviting her to attend a meeting on 4 May 2017 with the Respondent to discuss her employment. 99 The correspondence also included a statement that the Applicant could bring a support person to the meeting if she wished. The Applicant was accompanied to the meeting on 4 May 2017 by Ms Kerrins of the ANMF.
[183] I am satisfied that there was no unreasonable refusal on the part of the Respondent to allow the Applicant to have a support person present at discussions relating to the dismissal.
[184] The Respondent failed to provide the Applicant with any warnings in relation to unsatisfactory performance prior to the meeting held with her on 4 May 2017. This was due to the Respondent having made a deliberate decision to manage the Applicant’s employment and ultimately her dismissal on the basis of her medical capacity rather than on a performance management basis.
[185] In the circumstances, I am satisfied that the failure of the Respondent to provide the Applicant with any warnings regarding her performance weighs heavily against a finding that her termination was not harsh, unjust or unreasonable.
[186] The Respondent’s F3 - Employer Response Form indicates that at the time the Applicant was dismissed it employed 15 people.
[187] I am satisfied that the while the Respondent is a small company it had ready access to appropriate external legal advisors, from which it obtained advice and assistance in relation to both the management of the Applicant’s employment and her ultimate dismissal.
[188] I am satisfied in the circumstances that the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal. Consequently this is a neutral consideration
[189] The evidence in the matter revealed that the Respondent did not have dedicated internal human resources management specialists/expertise. However, it did have access to and, in fact, utilised the services of external legal resources in managing the dismissal of the Applicant.
[190] I am satisfied that the absence of dedicated human resources specialist/expertise did not impact on the procedures followed in effecting the dismissal. Consequently this is a neutral consideration.
[191] The Applicant submitted that her personal and economic circumstances should be considered in assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, that her medical condition would make it difficult for her to obtain alternate employment.
[192] The Respondent submitted that it had taken all reasonable steps to manage the Applicant’s condition throughout her employment. These steps included employing the Applicant in 2009 notwithstanding their knowledge of the Applicant’s condition, and accommodating her condition and modifying her duties over time.
[193] I accept that the consequences for the Applicant flowing from the termination are likely to be more severe given her medical condition. I have also balanced that consideration with that of the behaviour of the Respondent over several years, in firstly employing the Applicant and then maintaining her employment with various accommodations.
[194] On balance, I am not satisfied that these additional matters weigh either way in assessing whether the termination was harsh, unjust or unreasonable therefore they are neutral considerations.
[195] Having considered each of the matters specified in s.387 of the Act, I have concluded that while the Respondent had established a valid reason for the dismissal it had failed to provide warnings regarding the Applicant’s performance nor had they provided her with an opportunity to respond to the reasons for her dismissal. On balance I am satisfied that these failures rendered the dismissal unjust.
[196] I am satisfied that the termination was unfair within the meaning of the Act.
[197] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[198] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.
[199] The Applicant seeks reinstatement as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
[200] The Applicant submitted reinstatement would be appropriate because:
● There was no evidence before the Commission that demonstrated that the Applicant lacked capacity;
● The Applicant’s condition was such that her work was very important to her; and
● The Applicant hoped to return to continue her studies towards becoming a Division 1 nurse.
[201] The Respondent submitted reinstatement would be inappropriate because:
● The Applicant refused to recognise the deterioration in her condition;
● The Applicant does not have the capacity to return to clinical duties;
● The Applicant lacked insight to the risks she presented to patients; and
● The Respondent’s management has lost trust and confidence in the Applicant.
[202] I have considered the evidence in relation to the Applicant’s work performance along with the views of the Respondent as to the utility of reinstating the Applicant to her former role. I have also considered the submissions of the Applicant regarding the absence of medical evidence as to the Applicant’s medical capacity.
[203] I am not persuaded that the absence of an appropriate medical opinion leads to a conclusion that the Applicant is capable of returning to her former role. In fact the balance of evidence heard in the case regarding the Applicant’s work performance suggests the contrary in my view.
[204] In the circumstances I am satisfied that reinstatement is inappropriate.
[205] I am also satisfied that an order for compensation is appropriate in all the circumstances of this case.
[206] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 392(5) indexed to $61,650 from 1 July 2012
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[207] A Full Bench in McCulloch v Calvary Health Care Adelaide 100 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licences Festival Supermarket101 remains appropriate.
[208] I will now consider each of the criteria in s.392 of the Act.
[209] Nothing has been put to the Commission on this issue and is unlikely to arise.
[210] I find that the Applicant’s period of service with the Respondent, being eight years, is supportive of an award of compensation being made.
[211] The Applicant’s remuneration with the Respondent was $318.00 per week plus superannuation.
[212] It is necessary for me to determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had she not been dismissed.
[213] The Applicant submitted that her employment would have continued indefinitely but for the termination. While it was uncontested that multiple sclerosis is a degenerative condition there was no medical evidence available to assess the rate of progression of the Applicant’s disease or prognosis.
[214] There was evidence, however, of significant performance shortcomings of the Applicant. I am satisfied that had those issues been addressed properly on a performance management basis it is likely that the Applicant would have been dismissed within a relatively short period of time.
[215] I am satisfied that the Applicant would have continued to be employed by the Respondent for a further period of four months had she not been dismissed. The amount the Applicant would have received in that period is 17.3 weeks x $318.00 per week which equals $5512.00.
[216] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether the Applicant acted reasonably in the circumstances.
[217] While there was limited evidence of the efforts of the Applicant to secure alternate employment, it was accepted by both the Applicant and Respondent that the Applicant’s condition was likely to be a barrier to her securing alternate employment.
[218] I am satisfied in the particular circumstances of this case, that while limited efforts of the Applicant to mitigate loss were in evidence, the reason for this could be ascribed to her medical condition. In these circumstances I am satisfied that the Applicant’s conduct was reasonable and have determined not to discount the compensation figure.
[219] Evidence indicated that the Applicant has not earned remuneration since her dismissal from alternate sources.
[220] The Applicant was paid four weeks salary in lieu of notice and this payment should be taken into consideration.
[221] The Applicant submitted that her prospects of gaining employment in light of her condition were limited. This was not contested by the Respondent.
[222] Due to the nature of the Applicant’s medical condition, I am satisfied that the Applicant is unlikely to earn income during the period between the making of the order for compensation and the actual compensation.
[223] I find it is not appropriate in the circumstances that a contingency should be applied.
[224] I have not found any misconduct by the Applicant that contributed to the dismissal.
[225] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
[226] I will deal with the compensation cap below.
[227] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that compensation should be assessed having regard to the factors outlined above.
[228] The compensation that arises is as follows;
Projected remuneration lost (17.3 weeks at $318 per week) $5512
Deductions for income earned or likely to be earned nil
Deductions for contingencies nil
Deductions for misconduct nil
Deduction for notice (4 weeks at $318 per week) $1272
Total $4240
[229] In the absence of evidence about the actual dollar amount of the notice payment, I have based the value of the notice upon the agreed weekly remuneration figure. If this is not correct, I will grant liberty to apply in the event that the parties are unable to agree upon any adjustment that might otherwise be required in that context.
[230] The maximum compensation limit is the lesser of 26 weeks remuneration ($8268.00) or the statutory cap of $69,450.00 that existed at the time of the Applicant’s dismissal. The amount of compensation that arises from my findings is less than that limit.
[231] Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to the Applicant of $4240.00 plus superannuation.
[232] Taxation is to be paid on the amount determined.
[233] I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair.
[234] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.
[235] The payment of the required compensation, with the appropriate deduction for taxation, is to be made to the Applicant by the Respondent within 14 days of this decision.
[236] An order will be issued with this decision.
[237] Liberty is granted to seek a variation to the order in the event of a dispute about the impact of the precise monetary value of the notice payment upon the compensation figure.
DEPUTY PRESIDENT
Appearances:
Mr J Tierney of counsel for the Applicant.
Mr J Tracey of counsel for the Respondent
Hearing details:
2017
Melbourne
28 and 29 August 2017
1 Exhibit A4, Statement of Danielle Logan, dated 10 July 2017 at para 3.
2 Exhibit A3, Statement of Alison Meikle, dated 10 July 2017 at para 10.
3 Exhibit A3 at para 11.
4 Exhibit A3 at para 12.
5 Exhibit R5, Statement of Shirlie Mackie, dated 31 July 2017 at para 2.1
6 Exhibit A3, Annexure AM4.
7 Exhibit A4, Annexure DL1.
8 Exhibit R6, Statement of Dr Igor Jakubowicz dated 31 July 2017 at para 18.
9 Exhibit A4, Annexure DL2.
10 Exhibit A1, Statement of Jodie Kerrins, dated 21 August 2017, Annexure JK1.
11 Exhibit A1 at para 8.
12 Exhibit A1 at paras 6-8.
13 Exhibit A1, Annexure JK2.
14 Exhibit A1, Annexure JK3.
15 Exhibit R1, Statement of Nicole Loncar, dated 31 July 2017 at para 14.
16 Exhibit R2, Statement of Nicole Loncar, dated 25 August 2017, Annexure L5.
17 Exhibit R6 at para 23.
18 Exhibit A4, Annexure DL3.
19 Exhibit A4, Annexure DL3.
20 Exhibit A4, Annexure DL3.
21 Exhibit A1, Annexure JK4.
22 Exhibit A1, Annexure JK5.
23 Exhibit A1, Annexure JK6.
24 Exhibit A1, Annexure JK7.
25 Exhibit A4, Annexure DL5.
26 Exhibit A5, Letter from Colchester Medical Centre to Applicant dated 4 May 2017.
27 Exhibit A1, Annexure JK9.
28 Exhibit A1, Annexure JK9.
29 Exhibit A4, Annexure DL7.
30 Exhibit A4, Annexure DL7.
31 Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218
32 Exhibit A5.
33 Transcript at PN1330.
34 [1995] HCA 24; (1995) 185 CLR 410 at 465.
35 Sayer v Melsteel [2011] FWAFB 7498.
36 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
37 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
38 Ibid.
39 Exhibit A5.
40 Ibid.
41 Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218 at [25].
42 Transcript PN870 and PN1177.
43 Transcript PN876 and PN1167.
44 Exhibit R6 at para 18.
45 Transcript PN1196 -1199.
46 Transcript PN892-895.
47 Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218 at [25].
48 Exhibit R6 at paras 9-13.
49 Transcript PN896-901.
50 Transcript PN564, PN573, PN576.
51 Exhibit A4 paras 13-15.
52 Transcript PN187 -204.
53 Exhibit A4 para 15, Exhibit A3 para 12, Exhibit A3 Annexure AM 4, Exhibit A1 paras 6-8.
54 Exhibit R1, para 9.
55 Exhibit R4, Statement of Dr David Foster, dated 31 July 2017 at para 13.
56 Transcript PN272-287.
57 Exhibit R1at para 7.
58 Transcript PN375.
59 Transcript PN376.
60 Transcript PN377.
61 Transcript PN374.
62 Exhibit R1 at para 8.
63 Exhibit R3, Statement of Denise Hearn, dated 31 July 2017 at paras 9 and 10.
64 Transcript PN255-257.
65 Exhibit R1 at para 12 and Transcript PN548-555.
66 Transcript PN383-396.
67 Exhibit R1 at para 21.
68 Transcript PN435-447.
69 Exhibit R1 at para 23.
70 Exhibit R6 at paras 6-7.
71 Transcript PN168-170.
72 Transcript PN290-324.
73 Exhibit R5 at para 37.
74 Transcript PN1081.
75 Transcript PN365-380.
76 Exhibit R3 at para 8.
77 Transcript PN785-793.
78 Transcript PN237-245.
79 Exhibit R5 at para 32.
80 Transcript PN248-254.
81 Exhibit R3 at para 11.
82 Transcript PN802-807.
83 Transcript PN232.
84 Transcript PN223-229.
85 Exhibit R3 at para 12.
86 Transcript PN261-265.
87 Exhibit R1, Annexure L2.
88 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
89 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
90 Previsic v Australian Quarantine Inspection Services Print Q3730.
91 (2000) 98 IR 137.
92 Ibid at 151.
93 Exhibit A4, Annexure DL5.
94 Exhibit A1 at para19.
95 Exhibit A5.
96 Transcript PN721.
97 Transcript PN729.
98 RMIT v Asher (2010) 194 IR 1, 14-15.
99 Exhibit A4, Annexure DL5.
101 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431
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