[2018] FWC 3767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jillian Levidis
v
Rogers Seller & Myhill Pty Ltd T/A Rogerseller
(U2018/174)

COMMISSIONER MCKINNON

MELBOURNE, 29 JUNE 2018

Application for an unfair dismissal remedy - inherent requirements of role – application dismissed.

Introduction

[1] Jillian Levidis was employed by Rogers Seller & Myhill Pty Ltd (Rogerseller) from September 2002 until 18 December 2017 when Rogerseller decided to terminate her employment for inability to perform the inherent requirements of her position as Concierge Delivery Specialist. 1

[2] On 6 January 2018, Ms Levidis applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). She says the dismissal was unfair because it followed a period of unrelenting harassment and intimidation and was procedurally unsound.

[3] On 15 January 2018, Rogerseller filed its response to the application denying harassment or intimidation. It says Ms Levidis was unhappy about being performance managed in early 2017, did not work after 6 March 2017 and was eventually certified as permanently unfit for her usual job.

[4] A determinative conference was held on 7 May 2018 in Melbourne. Ms Levidis represented herself and was accompanied by a support person. Rogerseller was represented by the Victorian Chamber of Commerce and Industry. James Edmonds and Kathy Tanojevic were called as witnesses in addition to Ms Levidis. Additional unsworn witness statements were filed by Ms Levidis although none of those witnesses attended the hearing. 2 The statements are of limited probative value to the facts in issue in this case. I have had regard to paragraphs 1, 2, 16, 17, 25, 30, 31 (first eight words) and 32 of Mr Close’s statement. I have not given the other unsworn statements any significant weight.

Preliminary matters

[5] The application was filed within 21 days of dismissal.

[6] Section 382 provides that a person is protected from unfair dismissal if, at the relevant time:

• They have completed at least the minimum employment period; and

• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[7] It is agreed that Ms Levidis’ period of employment with Rogerseller was longer than the minimum employment period and that the Clerks – Private Sector Award 2010 3 applied to her employment. Ms Levidis is protected from unfair dismissal.

[8] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 4

[9] There is no dispute that Ms Levidis was dismissed on 18 December 2017.

[10] At the time of her dismissal, Rogerseller employed 75 employees and was not a small business employer. 5 I am satisfied on that basis that the dismissal could not have been consistent with the Small Business Fair Dismissal Code.6

[11] No issue of redundancy arose and I am satisfied that the dismissal was not a case of genuine redundancy.

[12] The issue is whether the dismissal was harsh, unjust or unreasonable. That necessarily requires, in this case, consideration of whether Ms Levidis was unable to perform the inherent requirements of her role at the time she was dismissed.

Background

[13] On 24 January 2017, Ms Levidis was told her role was changing. She was unhappy about the change and on 31 January 2017, suggested she be made redundant. A ‘one off’ separation offer was made to Ms Levidis by Rogerseller but for whatever reason, she did not accept it and instead accepted the new role. 7

[14] On 9 and 10 February 2017, Rogerseller says two complaints from fellow staff members were made about Ms Levidis “behaving in a negative manner” to Ms Kvesic, the National Customer Service Manager.

[15] On 15 February 2017, Ms Levidis made a separate complaint about “bullying behaviour” by two of her colleagues, Danee Heaney and “Kristina” to Ms Tanojevic, the National HR/Payroll Officer.

[16] Ms Kvesic and Ms Tanojevic subsequently realised that each had received separate complaints either from or about Ms Levidis. Ms Tanojevic says she did not know about the complaints made against Ms Levidis at the time she received Ms Levidis’ complaint. Once she became aware that there was more than one complaint, a decision was made to investigate the complaint made by Ms Levidis first.

[17] On 16 February 2017, Ms Kvesic met with Ms Levidis to advise that she had investigated the complaints and they had not been substantiated. According to Rogerseller, the discussion “went off track” and at times became heated.

[18] On 17 February 2017, Ms Levidis left work early due to illness. She did not return to work until 6 March 2017.

[19] On the day of her return to work, Ms Kvesic met with Ms Levidis and advised her for the first time of the complaints made by her two colleagues, as well as a customer complaint and other “performance concerns”. Ms Levidis was issued with a formal warning. She did not return to work after that time.

[20] Medical certificates were issued covering Ms Levidis’ absence from work 8 as follows:

Period	Diagnosis	Capacity for work
10/3/17 – 7/4/17	Workplace harassment causing anxiety symptoms and reduced mood	No capacity for work until workplace conflict is resolved
7/4/17 – 5/5/17	As above	As above
5/5/17 – 2/6/17	As above	As above
3/6/17 – 30/6/17	As above	As above
1/7/17 – 28/7/17	As above	As above
29/7/17 – 26/8/17	As above	As above
26/8/17 – 23/9/17	As above	As above
24/9/17 – 21/10/17	As above	As above
21/10/17 – 18/11/17	As above	As above
19/11/17 – 19/12/17	As above	As above

[21] Ms Levidis made a workers compensation claim on 14 March 2017. On 22 May 2017, the claim was refused by Allianz. 9

[22] A series of correspondence was then entered into between Ms Levidis (through her adviser, Mr Leo Close of Close Consulting), and Rogerseller about Ms Levidis’ concern about how she had been treated and whether she was likely to return to work.

[23] Fitness for Work Assessments were undertaken in relation to Ms Levidis on 29 September 2017 10 (physical impairment) and 29 November 201711 (mental impairment). On 29 November 2017, Ms Levidies was certified as “permanently unfit for her usual job” and “not fit to return to work at Rogerseller”.

Was the dismissal harsh, unjust or unreasonable?

[24] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 12 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.”

[25] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria in section 387 of the Act.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[26] The reason given to Ms Levidis for dismissal was that she was unable to fulfil the inherent requirements of her role.

The inherent requirements of the role

[27] In J Boag and Son Brewing Pty Ltd v Button 13 (Boag), a Full Bench of the Commission held that when an employer relies upon incapacity to perform the inherent requirements of an employee’s position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position.

[28] Ms Levidis’ substantive role at the time of dismissal was Concierge Delivery Specialist. The position description for that role states that the employee is responsible for helping customers with their sales enquiries; raising new sales orders; ensuring orders are delivered according to customer requirements and resolving customer issues efficiently and effectively every time. Skills required of the role are proficiency across Microsoft Office programs and exposure to an inventory management or CRM system. Competencies required of the role are Problem Solving, Customer Orientation, Communication, Work Standards and Management, Continuous Improvement/Initiative and Teamwork. 14

[29] A description of Ms Levidis’ occupational history provided by her to Dr Reza Sabetghadam on 29 September 2017 described the role as “office-based duties behind the personal computer in an ergonomically-designed desk, involving repetitive and prolonged time of hand movements, manual dexterity, sitting and working with keyboard and mouse behind the personal computer. 15

[30] In other words, the inherent requirements of the role were undertaking computer and phone duties, knowledge of Rogerseller products and systems and the ability to interact positively with customers and staff.

Did she have capacity to perform the inherent requirements of the role?

[31] In CSL Limited T/A CSL Behring v Chris Papaioannou, 16 a Full Bench of the Commission found that where a dismissal relates to a person’s capacity, section 387(a) of the Act requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity having regard to the relevant medical and other evidence before the Commission.

[32] The decision directs attention to Ms Levidis’ capacity for work on 18 December 2017. The certificate of capacity current at that time indicates that Ms Levidis had “no capacity for work until workplace conflict is resolved”. 17

[33] The medical assessment of Dr Reza Sabetghadam 18 (Occupational Physician) on 29 September 2017 concluded that Ms Levidis did not suffer from a specific medical condition affecting her fitness for occupational duties. It noted psychosocial factors at the workplace that appeared to be affecting her return to work, such as poor organisational support, high organisational demand, poor control over role, poor relationships at workplace and poor autonomy. A basic screening for psychological conditions did not indicate any significant psychological condition. However, a recommendation was made that she be assessed by an independent psychiatrist.

[34] The subsequent medical assessment of Dr Zeeva Cohen 19 (Consultant Psychiatrist) on 16 November 2017 diagnosed Ms Levidis with “adjustment disorder with depressed and anxious mood”. The prognosis was favourable for a reduction in symptoms but unfavourable for return to work. Dr Cohen expressed the opinion that return to work at Rogerseller would place Ms Levidis at risk of “relapse and further decompensation”. Dr Cohen certified Ms Levidis as not fit to return to work at Rogerseller.

[35] No subsequent medical reports were relied on in the Commission.

[36] The evidence establishes that at the time of dismissal, Ms Levidis was able to physically perform the inherent requirements of her role. Her own evidence, which I accept, was that she was physically fit, participating in yoga and a range of other non-work activities.

[37] However, the evidence also establishes that at the time of dismissal, Ms Levidis was suffering from a psychological condition which prevented her return to work at Rogerseller. Dr Cohen identified the prospect of her returning to work at Rogerseller as a key stressor for her condition and one which was likely to cause ‘relapse’. The obvious difficulty for Ms Levidis was that returning to work was a necessary step for her to undertake her role and all of its inherent requirements. There is no evidence the role could have been performed anywhere other than at Rogerseller’s premises, or without interacting with its key management and sales staff. On balance, I am satisfied that at the time of dismissal, Ms Levidis did not have the capacity to perform the inherent requirements of her role as a Concierge Delivery Specialist because her psychological condition prevented her return to work at Rogerseller at all.

Was there a valid reason for dismissal?

[38] A Full Court of the Federal Court considered the approach to determining whether a valid reason exists in the context of incapacity in Crozier v Australian Industrial Relations Commission (Crozier). 20 It held:

“The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job.”

[39] While Crozier was decided under an earlier iteration of Australian workplace law, it has since been applied in matters arising under the Act and it is relevant in this case. 21

[40] I am satisfied there was a valid reason for Ms Levidis’ dismissal related to her psychological condition which prevented her return to work at the time she was dismissed.

Was the Applicant notified of the reason for dismissal and given an opportunity to respond?

[41] On 4 December 2017, Rogerseller wrote to Ms Levidis advising that it was considering terminating her employment because she was not able to fulful the inherent requirements of her role and inviting her to respond by 14 December 2017. 22

[42] On 14 December 2017, Mr Close responded and confirmed that Ms Levidis was “unfit to attend work” and “unable to return to her substantive position”. 23

[43] On 18 December 2017, Rogerseller wrote to Ms Levidis advising that her employment was terminated for inability to fulfil the inherent requirements of her role. The letter of termination was sent to Mr Close but not to Ms Levidis. Ms Levidis received a copy of the letter “a couple of days later” once she contacted Mr Close to ask what was happening and he forwarded it on to her. 24

[44] I am satisfied that Ms Levidis was notified on 4 December 2017 of the reason for dismissal that I have found was a valid reason relating to her incapacity for work. I am also satisfied that Ms Levidis had an opportunity to respond to that reason for dismissal before the final decision was made.

Any unreasonable refusal to allow a support person to assist with discussions relating to the dismissal?

[45] The evidence confirms that Mr Close was an active participant in discussions preceding the dismissal. To the extent that there were discussions related to the dismissal, I am satisfied that there was no unreasonable refusal to allow a support person to assist Ms Levidis in those discussions.

Was the Applicant warned about unsatisfactory performance?

[46] Ms Levidis’ dismissal was not related to unsatisfactory performance and this criteria is not relevant to the consideration of the matter.

The size of the employer’s business

[47] At the time of the dismissal, Rogerseller employed approximately 75 employees. There is no evidence that the size of the business had any relevant impact on the dismissal or the steps taken in the lead up to that time. I consider this to be a neutral factor in my consideration in this case.

Access to dedicated human resources management specialists or expertise

[48] Ms Tanojevic is the National HR/ Payroll Officer of Rogerseller who is responsible for all ‘people related matters’ within the business. 25 That includes assisting the management team and employees with any matters that arise as well as handling payment of wages. Rogerseller is also a member of the Victorian Chamber. It can be inferred from the materials before me that advice was sought from the Victorian Chamber in managing Ms Levidis’ absence from work prior to her dismissal.26 It is likely that access to advice in that regard assisted in affording procedural fairness to Ms Levidis in connection with the dismissal. I am satisfied that there was no relevant absence of dedicated human resource management expertise in the enterprise that was likely to impact on the procedures Rogerseller followed.

Other relevant matters

[49] A significant feature of this case from Ms Levidis’ perspective was that she was able to perform the inherent requirements of her role until February 2017, when a chain of events she considered harassment and intimidation triggered the deterioration of her health. There is some evidence to support that concern, having regard to the apparent manner in which the various complaints by and against Ms Levidis were handled in February and March 2017 and I do not doubt that 2017 was a difficult year for Ms Levidis. However, rather than seek intervention in a timely way, for example through the Commission’s bullying jurisdiction, a decision was made (presumably in consultation with Mr Close) to try and negotiate an exit package with Rogerseller. 27 That was a risky strategy and ultimately one without reward. It does not reflect well on Mr Close.

[50] The events of February and March 2017 were ultimately not what brought about the end of Ms Levidis’ employment. As a result, it is not necessary to make findings about the substance of complaints made or related processes or even whether the performance management process was reasonable. There is no evidence that any of those matters were operative factors in the dismissal and I am not satisfied that they were.

Conclusion

[51] Having considered each of the matters specified in section 387, I am not satisfied the dismissal of Ms Levidis was harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

J Levidis on her own behalf

T Page for Rogerseller

Hearing details:

2018.

Melbourne:

May 7.

Final written submissions:

Applicant 14 May 2018;

Respondent 21 May 2018

Printed by authority of the Commonwealth Government Printer

1 Exhibit 12, Letter from James Edmonds dated 4 December 2017; Exhibit 15, Termination Letter dated 18 December 2017

2 Exhibits 19 (Statement of Leo Close), 20 (Statement of Lynee Loveday), 21 (Statement of Rebekah Gibbons), 22 (Statement of Jasmin Marotta) and 23(Statement of Genevieve Galvin)

3 MA000002

4 Fair Work Act 2009 (Cth), s.385

5 Form F3 filed on 15 January 2018

6 Fair Work Act 2009 (Cth), s.23; s.388

7 Exhibit 25, Statement of Kathy Tanojevic at Attachment KT2

8 Respondent’s Closing Submissions filed on 14 May 2018 at “RS-1”

9 Respondent’s Closing Submissions filed on 14 May 2018 at “RS-3”

10 Exhibit 9, Report from Dr Reza Sabetghadam

11 Exhibit 11, Report from Dr Zeeva Cohen dated 29 November 2017

12 [1995] HCA 24; (1995) 185 CLR 410 at 465

13 [2010] FWAFB 4022

14 Exhibit 26; Statement of James Edmonds at Attachment JE7