| [2020] FWC 4289 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christine Hudson
v
RMIT University
(U2020/4066)
COMMISSIONER BISSETT |
MELBOURNE, 20 AUGUST 2020 |
Application for an unfair dismissal remedy.
[1] Dr Christine Hudson has made an application to the Fair Work Commission seeking relief from unfair dismissal. Dr Hudson was employed by RMIT University (RMIT) as a full-time lecturer for over 26 years. Her employment was terminated with effect from 20 March 2020.
[2] The matter was referred to conciliation where it did not settle. It was subsequently referred to me for hearing.
[3] Upon hearing from the parties I determined that the matter should proceed by way of hearing.
[4] The Applicant’s employment was terminated on the grounds that she could no longer perform the inherent requirements of her job. That decision was reached pursuant to clause 31 – Termination of Employment on Grounds of Ill Health of the RMIT University Enterprise Agreement 2018 1 (Agreement), in particular clause 31.15 of the Agreement which states that:
31.15 The Relevant Delegated Authority may construe repeated failures, or a refusal, by an employee to undergo an IME in accordance with this clause as prima facie evidence that such an IME would have found that the employee is unable to perform their duties and is unlikely to be able to resume them within the period set out in clauses 31.8 or 31.9 as applicable, and may act accordingly; provided that such a refusal by an employee in these circumstances will not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.
[5] An IME is an independent medical examination.
[6] Clauses 31.8 and 31.9 of the Agreement relate to the period within which an employee may not be able to return to work and associated notice periods for termination of employment.
[7] Dr Hudson does not dispute that she failed to attend an IME but disputes RMIT’s contention that she repeatedly failed or refused to attend as provided in clause 31.15 of the Agreement.
[8] Dr Hudson was absent from work due to illness from around February 2019 although she had been on restricted duties prior to this. In March of 2019 Ms Sandra Capper of Health, Safety and Wellbeing at RMIT wrote to Dr Hudson asking if there was any support she required from RMIT. Dr Hudson apparently did not reply.
[9] On 17 May 2019 Dr Hudson was asked to have her doctor complete a medical questionnaire (Medical Information Form) and return it to Ms Capper in order to “assist the University with supporting your Health and Wellbeing,” Dr Hudson was asked to return the Medical Information Form by 31 May 2019.
[10] Dr Hudson took the Medical Information Form to her medical practitioner who she said refused to complete it.
[11] On 3 June 2019 Dr Hudson replied to Ms Capper that, whilst acknowledging that she was required to comply with a lawful and reasonable direction she was:
…appalled by this so-called requirement. Despite your various claims that RMIT is trying to assist and support me while I am on sick leave, this seems to be a calculated endeavour to pressure me into waiving my legal entitlements. I have made it abundantly clear to you that I am receiving adequate support already and that I would not hesitate to request help from RMIT should that become necessary.
I would add that, as an academic, I was embarrassed to show the RMIT questionnaire to my doctor. It is an extraordinarily crass and unprofessional document that reflects very badly on RMIT’s reputation. As well as containing errors and omissions, it seems to regard workers as malingerers and shirkers. As a staff member of 25 years standing with a reputation for commitment and hard work, I seriously resent being treated like this, especially while my state of health is not good. I find this approach intrusive, patronising and insensitive.
I advise that I am now making a formal complaint to RMIT. I will also be bringing it to the attention of the Privacy Commissioner if it is not dealt with satisfactorily by RMIT. In the meantime, I would regard any further attempts to pressure me to comply with additional bureaucratic requirements by you or your department as harassment and bullying. I will respond accordingly.
[12] On 10 June 2019 Dr Hudson filed a formal complaint with the Vice Chancellor in relation to the form and content of the Medical Information Form and what she believed was an unwarranted attempt to breach doctor and patient confidentiality.
[13] On 19 June 2019 Dr Hudson was advised by her then line manager, Scott Brook Associate Dean, School of Media and Communication at RMIT, that she was required to attend an IME and that an appointment was scheduled for 28 June 2019. On 24 June 2019 Dr Hudson advised Associate Professor Brook that she had made a complaint in relation to her privacy rights which included matters associated with this IME referral. Dr Hudson did not attend the IME and the appointment had to be rescheduled.
[14] On 27 June 2019 RMIT’s Chief Privacy Officer replied to the complaints of Dr Hudson. That letter stated that “the requests to (1) have your treating practitioner complete a Medical Information Form, and (2) undertake an Independent Medical Examination are consistent with RMIT’s privacy obligations and commitments to employees.” The reply stated that various policies and the Agreement provided sufficient notice of the legitimate purposes for collecting health information. The letter found that the request of Dr Hudson’s medical practitioner to provide information was reasonable as was the request to attend the IME. The letter did indicate that the Medical Information Form that Dr Hudson was asked to provide to her medical practitioner “could be improved to make clear its purpose”. The letter concluded that no breach of Information Privacy Principles or Health Privacy Principles had been identified.
[15] Dr Hudson did not seek any internal or external review of her complaint following RMIT’s response to that complaint of 27 June 2019.
[16] At this time Dr Hudson advised that she no longer wished to report to Scott Brook as he was named in her complaint. Dr Hudson’s reporting line was moved to Lisa French, Professor and Dean of School.
[17] On 19 July 2019 Professor French wrote to Dr Hudson and explained the reason why RMIT required information about her fitness to return to work. Professor French invited Dr Hudson to provide a report from her medical practitioner or to complete the paperwork necessary to claim a temporary incapacity benefit. Professor French suggested that this second course of action could replace the IME. Professor French invited Dr Hudson to meet with her to discuss Dr Hudson’s plans and options but no meeting occurred.
[18] On 25 July 2019 Dr Hudson was advised that her IME appointment had been re-scheduled to 21 August 2019.
[19] On 26 July 2019 Dr Hudson provided to RMIT the Medical Information Form from her medical practitioner.
[20] On 1 August 2019 Professor French wrote to Dr Hudson and advised that Dr Hudson would be required to undergo an IME prior to her return to work and that the IME would “determine whether you have capacity to return to work within a 12 month period of absence, including your ability to safely undertake teaching and research.” Dr Hudson was advised that the IME appointment was on 10 October 2019 although this was later changed at Dr Hudson’s request to 6 November 2019.
[21] On 20 October 2019 Dr Hudson wrote to Professor French and said that she did not agree with the content on the medical clinic’s (“mlcoa” – the IME provider) consent form and that she had provided the clinic an amended copy of the form. The medical clinic advised RMIT on 31 October 2019 that they were unable to accept the edited consent form. This information was provided to Dr Hudson prior to her appointment on 6 November 2019.
[22] On 1 November 2019 Professor French wrote to Dr Hudson and advised that mlcoa would not accept an edited version of the consent form and that the clinic would not agree to Dr Hudson taping the consultation.
[23] Dr Hudson attended the clinic with her modified consent form. She did not see the doctor apparently because of the modified form she had signed. The medical clinic advised RMIT that Dr Hudson attended the clinic on 6 November 2019 however she would not sign the mlcoa consent form.
[24] On 22 November 2019 Professor French wrote to Dr Hudson. That letter set out a detailed history in relation to Dr Hudson’s long-term absence from the workplace and attempts of RMIT to have an IME completed. Professor French also advised Dr Hudson that RMIT was considering terminating her employment on medical grounds with 6 months’ notice in accordance with clause 31.8 of the Agreement. Dr Hudson was given until 6 January 2020 to provide a response to the letter and to also provide a medical assessment from a medical practitioner of her choosing in response to the matters raised. Dr Hudson was also given the option of meeting with Professor French.
[25] Dr Hudson did not provide a medical report and did not respond to the invitation to meet with Professor French. Dr Hudson did however provide a response in writing to the letter of Professor French on 6 January 2020 although it did not address the substantive issue raised of her fitness for work or the possible termination of her employment.
[26] On 20 January 2020 Professor French advised Dr Hudson that if she was capable of performing her role with medical clearance she could return to work but that she would be required to attend an IME. Professor French also proposed a meeting in mid-February 2020.
[27] On 27 January 2020 Dr Hudson advised that she was “sufficiently recovered” to return to her previous role, she would attend an IME but not if it was on “unacceptable conditions” and that there were some conditions (in particular the provision of an office not shared with anyone) that would be required to be met. On 29 January 2020 Dr Hudson declined the invitation to meet on the date set out in the letter of Professor French. Instead Dr Hudson suggested they meet on 1 February 2020 at an exhibition in Ballarat.
[28] On 4 February 2020 Professor French wrote to Dr Hudson once again extending the invitation to Dr Hudson to provide her own medical assessment and inviting her to a meeting to discuss the issues at hand between Dr Hudson and RMIT. Dr Hudson did respond in writing however no further information was provided and did not engage in attending a meeting.
[29] On 17 February 2020 Professor French again invited Dr Hudson to a meeting with Professor French on 24 February 2020 to discuss the matter further. Dr Hudson did not attend this meeting.
[30] On 19 March 2020 Dr Hudson was provided with a letter informing her that her employment was terminated on grounds of ill health.
[31] It is agreed by the parties and I am satisfied that Dr Hudson is protected from unfair dismissal, that her dismissal was not a redundancy and that the Small Business Fair Dismissal Code does not apply. Further, the application was made within time.
[32] In order to determine if Dr Hudson was unfairly dismissed it is necessary to consider if the dismissal was harsh, unjust or unreasonable.
[33] Section 387 of the FW Act sets out those matters to be considered in determining if the dismissal was harsh, unjust or unreasonable. Section 387 states as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[34] I have considered each of these below.
[35] Dr Hudson’s employment was terminated by virtue of the application of clause 31.15 of the Agreement set out above. Given the terms of the Agreement, repeated failures or a refusal to attend an IME may provide a valid reason for the dismissal of an employee.
[36] The matter in dispute is whether Dr Hudson did repeatedly fail or did refuse to attend an IME.
[37] Where the reason for dismissal involves misconduct it is not enough that the employer considers that the misconduct occurred. It is incumbent of the Commission to determine if, on the basis of the evidence before it and on the balance of probabilities, the misconduct occurred. 2
[38] In this case therefore I must determine on the basis of the evidence if Dr Hudson engaged in the conduct complained of by RMIT.
[39] Clause 31.1 of the Agreement provides that an employee:
• May be required to undergo an IME;
• The IME will be carried out by a medical practitioner determined by RMIT;
• Written notice of less than 1 month is given of the IME.
[40] Clause 31.7 requires that the employee provide consent for the report of the medical practitioner conducting the IME to be provided to the Relevant Delegated Authority of RMIT and the employee’s own medical practitioner.
[41] RMIT submits that there were three appointments with an IME that the Applicant did not attend. These were on 28 June 2019, 21 August 2019 and 6 November 2019. I have considered each of these below.
IME appointment of 28 June 2019
[42] Dr Hudson objected to attending the IME scheduled for 28 June 2019 on the grounds that she had raised a complaint with RMIT in relation to privacy issues arising from the Medical Information Form for her treating medical practitioner which she says he refused to complete. On being advised that she was required to attend the IME of 28 June 2019 Dr Hudson added this to her complaint. In broad terms her complaint was that both were attempts to force her to relinquish her right to privacy in relation to medical matters.
[43] In her evidence Dr Hudson said of the 28 June 2020 appointment:
Okay, but you were never told by RMIT that the IME had been cancelled? --Not that I can recall. 3
You decided how the process would run and acted according to your decision?--No, I put in a complaint to the Vice Chancellor. The question was in dispute or in discussion, therefore it was not possible for me to go to the IME. I should not have gone to the IME at that point. 4
The privacy office outcome in response to your complaint was given on the - - -?--27 June, yes. 5
…The report from the privacy office that didn’t make any adverse conclusion in relation to the IME was provided to you before the IME and you were never informed that the IME was cancelled. Notwithstanding that, you didn’t attend the IME? --That’s correct. It didn’t make any conclusion at all really…
… You failed to attend the appointment on 28 June 2019, didn’t you?--Yes. I didn’t go. I believed that the complaint had been resolved. 6
So it was your decision, despite what had been communicated to you by RMIT in relation to your complaint and in relation to the IME - you unilaterally decided that didn’t satisfy you and so you didn’t attend? --Well, I didn’t attend… 7
[44] In this respect Dr Hudson conceded that the appointment with the IME on 28 June 2019 had not been cancelled but that she determined she should not attend because of the complaint that she had made. Dr Hudson made this decision despite having received a response to her complaint from RMIT that found there was no breach of the privacy matters she had raised.
[45] By 28 June 2019 Dr Hudson’s complaint had been resolved and the outcome was known to her. Her complaint was not ignored by RMIT. Dr Hudson’s submission that she had a “complaint” and this was grounds for not attending the IME must therefore be rejected. I would observe that, even her complaint was not resolved, or she intended to appeal the outcome in some way, this provides no basis for non-attendance at the IME and Dr Hudson has provided no reason why it would. If it was that Dr Hudson believed she should not be required to attend the IME while her complaint was in progress (to the extent it was by 28 June 2019) it was incumbent upon her to clarify this or inform RMIT of this. In circumstances where she took it upon herself not to attend the IME her statement that she did not “need to tell RMIT how to run their processes” 8 was precisely what she in effect did do. By not attending the IME Dr Hudson was telling RMIT how to run its processes in circumstances where she had no grounds to do so.
[46] I am therefore satisfied that Dr Hudson failed to attend the IME appointment of 28 June 2019.
IME appointment of 21 August 2019
[47] On 25 July 2019 Dr Hudson was directed by Professor French to attend an IME on 21 August 2019. Dr Hudson responded to that email later that day and said:
I am in receipt of your email today (dated 25 July) advising that I am to attend an lME. Last week you sent me another email (dated 19 July) foreshadowing the possibility of an IME but adding, ‘The alternatives are a report from your own medical practitioner ...’ A much modified version of the previously flawed Request for Medical Information Form was also attached.
I replied promptly saying that I would discuss this with my medical practitioner at my next appointment. That appointment is for tomorrow, 26 July, as you would know from my regular certificates.
So is your latest email a rescission of the previous one and just a change of mind? Obviously I don’t want to waste Dr Undenrwood’s time with an lnformation Form that, within the space of a week, has become somehow redundant.
ln the event that you now wish the IME to take place instead, I’d like to state that for an optimal outcome, I would want a female medical practitioner to undertake it instead of an unknown male.
[48] Professor French responded on 26 July 2010 and said:
Clarifications is: if RMIT receive a comprehensive report from your doctor by the end of week or early next week, HR can view the information and potentially cancel IME appointment. [underlining added]
[49] On the same day Dr Hudson provided to RMIT a completed Medical Information Form from her medical practitioner. That form indicated the condition from which Dr Hudson was suffering, that her condition was not stable but should stabilise over the coming 6 months and that Dr Hudson was not currently capable of working. The information provided by Dr Hudson’s doctor was directly responsive to specific questions asked on the Form. It could not, objectively, be considered a “comprehensive report”.
[50] Professor French did not indicate that a return of the Medical Information Form was all that would be required of Dr Hudson to have the requirement for the IME set aside.
[51] However, on 1 August 2019 Professor French sent an email to Dr Hudson that:
• Thanked Dr Hudson for providing the information from her doctor;
• Acknowledged her medical certificate;
• Advised that prior to returning to work Dr Hudson would be required to undertake a comprehensive IME assessment.
[52] The email advised that the IME was set for 10 October 2019.
[53] This correspondence from Professor French could reasonably be taken to indicate that the direction to attend an IME appointment of 21 August 2019 was set aside.
[54] There was, therefore, no refusal or failure of Dr Hudson to attend the appointment on 21 August 2019.
IME appointment of 10 October 2019 and 6 November 2019
[55] The next IME appointment made for Dr Hudson was on 10 October 2019. Whilst this was advised to Dr Hudson on 1 August 2019, a period of more than 1 month contrary to clause 31.1, nothing was put to suggest this voided the direction. By Dr Hudson’s engagement in the process I am satisfied that she accepted the direction. Dr Hudson subsequently requested this date be changed and it was rescheduled to 6 November 2019. In this respect I have treated these as one IME appointment.
[56] At some time prior to this appointment Dr Hudson informed Professor French that she was not comfortable with the IME consent form and proposed some changes to it. Professor French said she did not mind the change of the form proposed by Dr Hudson. However, mlcoa (the IME provider) indicated that it would not accept the modified form. This was advised by mlcoa to RMIT by email to Ms Antoinette Barber of Policy and Workplace Relations, at RMIT, on 31 October 2019. The response from mlcoa was forwarded to Dr Hudson by Professor French who also indicated that if Dr Hudson wished to record her appointment she would need to have the consent of the specialist and that decision was outside the control of RMIT.
[57] Dr Hudson says that she signed a consent form that she considered “met the requirements of the EA”. Dr Hudson agreed that she amended the form without invitation, that she took it upon herself to do so and that she sent a [signed consent] form [to mlcoa] that she was prepared to sign. 9 That is, Dr Hudson signed and sent a consent form to the IME provider which was not in the form required by the provider.
[58] Dr Hudson agreed that she was advised that the IME would not accept the amended form. Her evidence is that:
You were made aware that the consent form was required for the appointment, you sought amendments to the consent form, those amendments were rejected and yet you attended with your amended form and that amended form was again rejected. On what basis did you think the appointment could proceed?--Well, that I’d gone there, that I had given the doctor - that I would give the doctor my consent form that I had signed giving my consent for the information to go to RMIT and I didn’t even see the doctor, the receptionist just said, “No” without looking at it. I mean I don’t even know if the doctor had seen the amended form.
Right. So, you were aware that the provider appointed by RMIT rejected your amendments, despite that awareness, you attended with that amended form, that amended form was again rejected on the same basis that it was previously and which you were aware of, so I put it to you that it’s not reasonable to have expected the appointment to proceed in those circumstances? --I thought it was reasonable given that I had a form that I was prepared to sign.
Just by having been told that that form wasn’t to be accepted by the provider? --Yes.
You arrived with it anyway? --I still - I arrived with the form, I expected the doctor to see me. That’s why I went.
And so I would say then that you failed to participate in that IME? --No, I went to the IME, I did not fail to participate, the doctor refused to see me. 10
[59] Whilst Dr Hudson may have presented herself at the IME appointment she was aware that the modified medical consent form she had signed was not acceptable to the IME provider. Despite this she thought the IME appointment would proceed.
[60] The difference between refusing to sign any consent form and signing and presenting a consent form that she knew would be rejected is non-existent in practical effect. Dr Hudson did not provide consent such that the examination of the IME that she had been directed to attend could proceed.
[61] In both form and substance Dr Hudson refused to attend the IME as required by RMIT. To suggest that she was willing to attend – but only on her terms – is a refusal to attend an IME as required by RMIT.
[62] To suggest that by arriving at the IME appointment she was required to do no more, such as signing a valid consent form, is disingenuous and is rejected. Dr Hudson presented in a way that she knew was not acceptable to the provider. To stipulate the terms on which she would attend the IME does, in my opinion, amount to a refusal to attend the IME as required by RMIT. Had Dr Hudson refused to sign the consent form this could reasonably be construed as a refusal to attend the IME. By signing a modified consent form that Dr Hudson knew would not be accepted is, in effect, no different.
[63] Even if this was not a refusal to attend it is, in both form and substance, a failure to attend in a manner that the IME could proceed.
Was the conduct a breach of clause 31.15 of the Agreement
[64] I am satisfied that Dr Hudson did refuse to attend the IME of 6 November 2019.
[65] If the conduct of 6 November 2019 is not a refusal it is a failure to attend such that it, along with the failure to attend the IME of 28 June 2019 could amount to “repeated failures”.
[66] Clause 31.15 allows RMIT to construe “repeated failures, or a refusal…to undergo an IME” prima facie evidence that the person could not perform their duties within the timeframes in clauses 31.8 or 31.9 of the Agreement.
[67] Clause 31.15 does not require repeated failures and a refusal nor repeated failures or repeated refusals. The language is clear. Repeated failures to attend will enliven clause 31.15 as will a single refusal to attend.
[68] As I have found above I am satisfied that Dr Hudson either refused or twice failed to attend the IME. It was, in these circumstances, open to RMIT to consider that Dr Hudson could not resume her duties within the timeframes stipulated in clause 31 of the Agreement.
[69] For these reasons RMIT was entitled to conclude that Dr Hudson could not perform the inherent requirements of her position in accordance with the provisions of clause 31 of the Agreement.
[70] In Selvachandran v Peteron Plastics Pty Ltd 11 his Honour, Northrop J said:
In its context in subsection 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…
[71] There is no challenge to the reasonableness of the provisions of the Agreement. The decision of RMIT to terminate Dr Hudson’s employment was therefore soundly based and defensible.
[72] In these circumstances I am satisfied that there was a valid reason for dismissal based on the capacity of Dr Hudson to undertake her duties. The reason for dismissal was based on the conduct of Dr Hudson as weighed against the requirements of the Agreement. In this exercise Dr Hudson was found wanting despite the numerous and varied attempts to enable her to provide the information sought by RMIT.
[73] On 22 November 2019 Professor French wrote to Dr Hudson setting out the concerns of RMIT in detail. Dr Hudson was advised that RMIT was considering terminating her employment on medical grounds with 6 months’ notice. Dr Hudson was invited to provide a medical assessment from a doctor of her choosing at her expense and anything else she considered RMIT might consider in reaching a decision by 6 January 2020.
[74] Dr Hudson responded on 6 January 2020 by email to Professor French as follows:
Dear Lisa
You have requested that I respond to your email of 22 Nov 2019, in effect asking whether I have anything to say before you terminate my employment. I understand the perfunctory nature of the request.
Having considered the poorly concocted arguments you have presented for threatening this, I believe it would be a futile exercise on my part to seek to dissuade you.
It seems clear to me that the aggressively intrusive approach by HR when I became unwell, was prompted solely by the economic interests of the University. Any stated concerns for my recovery and return to work were mere superficialities.
The fact that you have appropriated my office while I am on leave and had my possessions delivered to some unspecified shared location, is a further demonstration of the harsh and unfair culture that reportedly prevails in the School. A move more calculated to undermine a person’s morale would be hard to imagine.
I am in no doubt that you are impatient to conclude this matter and to see my employment terminated. I have, therefore, nothing further to say to you at this time.
[75] Despite the apparent failure of Dr Hudson to respond directly to the issue at hand – the consideration of termination of her employment – Professor French gave her a further opportunity to return to work but advised that this would require attendance at an IME. Professor French also invited Dr Hudson to a meeting to “understand [her] position”.
[76] Dr Hudson replied that she would attend an IME but only on the basis of conditions she considered acceptable. Alternatively she would consider the offer of a departure package. Dr Hudson did not respond to the request for a meeting. In a further email of 29 January 2020 Dr Hudson said that she was not available to meet on the proposed date. She said:
As it happens, I would not be available to meet on that date anyway, because of prior arrangements. Should you wish to meet at another time, I’d assume that an off campus and neutral venue would be chosen. I note that you are an invitee to an exhibition on 1 Feb in the PO Gallery in Ballarat. As I intend being there, it could provide us with an opportunity to catch up earlier.
[77] When asked under questioning why she proposed that location to meet Professor French, Dr Hudson said that both she and Professor French would both be there (both were invited) and she thought that it would be “a friendly conversation” with Professor French. That meeting did not occur, not least because Professor French did not attend the exhibition.
[78] On 4 February 2020 Professor French again gave Dr Hudson the opportunity to seek her own medical report and again invited her to a meeting to discuss relevant matters in relation to her circumstances prior to any decision with respect to her employment being made. Dr Hudson again declined the opportunity to meet.
[79] Dr Hudson was subsequently provided with a letter dated 19 March 2020 terminating her employment.
[80] I am satisfied that Dr Hudson was advised of the reason for her dismissal and given an opportunity to respond. I would observe that Dr Hudson was given a substantial number of opportunities to respond both in writing and in person. She passed over each and every one of these opportunities.
[81] Dr Hudson’s offer to meet with Professor French at a gallery exhibition in Ballarat (apparently a social event) or consider the meeting would be a “friendly conversation” is unusual to say the least given she had been provided with a letter advising that her employment may be terminated. In response to an offer to meet to discuss the issue Dr Hudson thought a friendly chat at an exhibition was the appropriate response. Dr Hudson is either naïve or thought RMIT would let the existing situation meander along with no end until she decided she was fit enough to return to work.
[82] RMIT has shown incredible latitude to Dr Hudson – it has provided multiple opportunities for her to provide medical evidence in relation to her capacity to work and it has sought to meet with her to try and find a path forward. Every offer to try and find some way forward has been rebuffed by Dr Hudson.
[83] I am satisfied that Dr Hudson was advised of the reason for her dismissal and was given multiple opportunities to respond.
[84] Dr Hudson refused all requests of RMIT to meet with her. There was, therefore, no unreasonable refusal to allow a support person to attend.
[85] Dr Hudson’s employment was not terminated for reasons related to her performance. This is, therefore, not a relevant consideration.
s.394(f) & (g) - the size of the employer’s business and access to human resources expertise
[86] RMIT is a large business. It has skilled human resource officers and it has established human resource processes to assist in effecting the dismissal of Dr Hudson.
[87] Dr Hudson raises additional issues in relation to accommodation changes at RMIT that affected her, changes to a staff list and issues of morale.
[88] I am not convinced that any of these matters have a bearing on the reasons for dismissal of Dr Hudson and I have not considered them.
[89] Likewise I have not had regard to comments made by Dr Hudson in relation to the trust she has in RMIT. These might be relevant was I considering remedy.
[90] I acknowledge that Dr Hudson has worked at RMIT for 26 years.
[91] Having taken into account all of those matters I am required to consider I am satisfied that the dismissal of Dr Hudson was not harsh, unjust or unreasonable.
[92] Dr Hudson’s conduct in refusing to undergo or failing to attend the IME was a deliberate act on her part. Through her conduct she stymied all attempts by RMIT to ensure that she was fit to return to work following an extended absence due to illness.
[93] RMIT sought no more of Dr Hudson than what was stipulated under the Agreement governing her employment. Dr Hudson acted as though this was a game of semantics – one she could engage in until she wore RMIT staff down and/or achieved her own objective and returned to work.
[94] Dr Hudson has ultimately achieved nothing by her conduct. RMIT provided extensive opportunities to Dr Hudson, it has been flexible, lenient and willing to accommodate alternatives to an IME by which Dr Hudson could demonstrate her fitness for work. Professor French asked to meet with Dr Hudson to discuss the issues between them, but Dr Hudson ignored or rebuffed these or proposed meaningless alternatives. Ultimately, when advised her employment might be terminated, Dr Hudson did not respond to the matter at hand. Dr Hudson’s conduct in this respect is unfathomable.
[95] For these reasons I find that Dr Hudson was not unfairly dismissed. Dr Hudson’s application is therefore dismissed. An order 12 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
J. Nunweek for the Applicant.
L Carr for the Respondent.
Hearing details:
2020.
Melbourne by video:
July 14.
Printed by authority of the Commonwealth Government Printer
<PR721841>
1 AE500673.
2 King v Freshmore (Vic) Pty Ltd Print S4213.
3 Transcript PN259.
4 Transcript PN262.
5 Transcript PN264.
6 Transcript PN269 – 270.
7 Transcript PN 272.
8 Transcript PN 261.
9 Transcript PN314.
10 Transcript PN 321-325.
11 [1995] IRCA 333 (7 July 1995); [(1995) 62 IR 371 at p. 373].