Unfair dismissal and inherent requirements of the job

This extract from an unfair dismissal case deals with the legal principles which apply when determining an unfair dismissal case involving a dismissal because the employee was said to be unable to discharge the inherent requirements of the job.

“CONSIDERATION

 

(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct

(including its effect on the safety and welfare of other employees);

[151] A valid reason was described in Selvachandran v Petron Plastics Pty Ltd18 as one which

is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or

prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the

reason must be valid in the context of the employee’s capacity or conduct or based on the

operational requirements of the employer’s business.” The onus rests with the Respondent in

cases such as this to establish that it had a valid reason for dismissal.

[152] It is common ground that the Applicant commenced a period of medical leave from

early March 2022 and did not return to work at any time prior to her termination of employment

on 18 January 2023. The Applicant agreed that the medical certificates that had been provided

to the Respondent provided no details to the Respondent other than that she had a medical

condition. The Applicant also accepted that none of the medical certificates provided the

Respondent with any indication as to when the Applicant was likely to be in a state to return to

work. The Applicant exhausted all of her leave entitlements by late June 2022. The Applicant

confirmed in her evidence that she asked her husband to be the point of contact with the

Respondent while she was on leave as she was not capable of this during that time.

[153] The Respondent firstly attempted to get clarification from the Applicant as to her

medical situation through advice from her own treating medical practitioner, and it was only

after two unsuccessful attempts to do so, that the Respondent directed the Applicant to attend

an IMA. I have considered the Applicant’s criticisms of the Respondent’s level of compliance

with steps in its own PPI Procedure, however despite some failings, it appears overall, the

Respondent’s approach was broadly consistent with the intended procedure. I do not intend to

draw a Jones v Dunkel inference because Ms Constable did not give evidence. It is possibly the

case that Ms Constable did not engage directly with persons other than Mr Walker concerning

the way the PPI Procedure was conducted, but to the extent that was a failure to comply with

the PPI Procedure, I have concluded that not much turns on it.

[154] The subsequent medical Report provided by Dr Jetnikoff following the IMA, was clear

and unambiguous. Dr Jetnikoff left no room for doubt that in his opinion the Applicant was

[2023] FWC 1991

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not and would never be fit to return to her former role, and that no reasonable adjustments could

be made for her to return to work for the Respondent. The Respondent’s decision to terminate

the Applicant rests heavily on the conclusion in the medical opinion of Dr Jetnikoff. I have

considered the Applicant’s criticisms of Dr Jetnikoff’s Report, and his evidence in these

proceedings, particularly that his conclusions concerning the Applicant’s capacity to return to

work for the Respondent are more personal opinion than medical opinion.

[155] Dr Jetnikoff is a highly qualified Psychiatrist and holds vast experience on the matters

he was asked by the Respondent to express his medical opinion on concerning the Applicant’s

capacity. There is no basis for the Commission to reject Dr Jetnikoff’s clinical assessment that

the Applicant is suffering from a chronic adjustment disorder. The Applicant has not suggested

otherwise. All of the medical reports tendered in the course of the hearing support a conclusion

that the Applicant has been very unwell. The Applicant’s attack on Dr Jetnikoff’s conclusion

has concerned her capacity to recover. The Applicant has focussed on Dr Jetnikoff’s use of the

expression ‘malignant resentment’ referring to the Applicant’s attitude toward the Respondent.

Dr Jetnikoff described ‘malignant resentment’ and ‘mistrust’ as symptoms of the clinical

diagnosis of chronic adjustment disorder. To support its contention that Dr Jetnikoff’s opinion

(that the Applicant could never return to work for the Respondent) was erroneous, the Applicant

points to Dr Jetnikoff’s conclusion that the Applicant could recover within two months if she

works for someone else.

[156] It is not contested that the Applicant was not fit for work at the time of termination.

Having considered all of the evidence, I am inclined to accept the opinion of Dr Jetnikoff

concerning the nature of the Applicant’s chronic adjustment disorder and mental condition. Dr

Jetnikoff explained both in his Report, and in his statement and oral evidence why he had

formed the opinion that it was the association with the Respondent itself, and not specific

individuals within the Respondent that would prevent the Applicant’s recovery. I am satisfied

that Dr Jetnikoff’s opinion is likely to be an accurate assessment of Ms Frizell’s condition.

[157] The Applicant has argued Dr Jetnikoff’s Report should be given little or no weight based

on the assumption identification rule and the basis rule concerning expert witness evidence. Dr

Jetnikoff’s credentials as an occupational psychiatrist are considerable. The Commission is

entitled to take into account medical evidence from a Specialist Medical Practitioner, even if it

is not in the form of an expert report. Dr Jetnikoff provided the Report to the Respondent in

December 2022, and has also provided a witness statement in these proceedings and oral

evidence under cross examination. Ultimately it is a matter for the Commission to determine

the weight that should be afforded to Dr Jetnikoff’s evidence, and I am satisfied it is appropriate

that his evidence be afforded considerable weight. It is also the only medical opinion before

the Commission that pertained to the capacity of the Applicant, just prior to the time of the

dismissal.

[158] I have also considered the Applicant’s submissions criticising the Respondent for not

taking steps to make further enquiries of the psychiatrist and psychologist who had treated the

Applicant. The evidence is however that the Applicant was offered the opportunity to advise

the Respondent which treating medical practitioner that she would consent to the Respondent

engaging with. The Applicant nominated her general practitioner. It would have been open at

any time from the commencement of the PPI procedure for the Applicant to propose to the

Respondent, that the Respondent should confer with these other medical practitioners. This

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includes up to the point of receiving the email of 15 December 2022 from Mr Walker, or the

show cause on 12 January 2023. For reasons only known to the Applicant, this step was never

taken.

[159] The Applicant has also criticised Dr Jetnikoff’s Report for failing to address the

Applicant’s capacity to perform the specific tasks required by her role. Given Dr Jetnikoff’s

conclusion concerning Ms Frizell’s mental state, I agree with the Respondent’s submission that

it was not necessary for him to consider every task in isolation. Dr Jetnikoff opined that the

Applicant had developed a general mistrust of her employer and anyone working in a position

of authority for her employer, based on his examination of Ms Frizell. In those circumstances

issues concerning assessment of the Applicant’s capacity to perform specific tasks is moot.

[160] The Applicant has also contended that the medical report was infected with a bias

against the Applicant on the basis of her political opinion in relation to her rights concerning

COVID 19 vaccination. I do not accept that submission. Dr Jetnikoff explained during his

evidence the reason why he included references to these matters in his Report, and I am satisfied

he adequately explained his reason for doing so, and I am not persuaded that the Applicant’s

expression of a political opinion caused Dr Jetnikoff to form a bias against her because of that

opinion.

[161] The Applicant has sought to rely on the fact that Mr Bayntun and Mr Walker would no

longer be based at the workplace as a basis to argue that, as their conduct toward her were

contributing factors to her medical condition, she could recover if she returned to a workplace

where they were not present. The Applicant did not specifically address the circumstances of

Mr Brook being at the workplace despite the allegation made by the Applicant about him. Mr

Bayntun, Mr Brook and Mr Walker all contested the allegations the Applicant had made against

them concerning their conduct toward her. The Applicant did not require either of Mr Bayntun

or Mr Brook for cross examination about their rejection of her allegations in their respective

witness statements and on that basis their evidence was admitted unchallenged. I am satisfied

that a diary note that was raised by Mr Bayntun concerning an incident between the Applicant

and another employee Ms Summers was a contemporaneous record of the discussion Mr

Bayntun had with the Applicant about the incident with Ms Summers and was not fabricated as

the Applicant has asserted. The Applicant never made a complaint about Mr Brook. Mr

Walker’s evidence was no complaints were ever made to him about Mr Bayntun’s conduct and

I am inclined to accept that evidence. I am unable to be satisfied that the allegations concerning

the conduct of Mr Bayntun and Mr Brook were made out. Further the text messages exchanged

between the Applicant and Mr Bayntun up until October 2022 appear friendly and tend to

undermine the Applicant’s claims about Mr Bayntun’s alleged conduct toward her.

[162] I have also considered the competing versions in Mr Walker and Ms Frizell’s evidence

concerning their discussions in late 2021 about Ms Frizell having used one of the Respondent’s

printers to print out information on a work computer concerning COVID-19 vaccinations. Mr

Walker gave evidence that Ms Frizell also distributed this material on site. Having considered

the evidence on this issue and observed the witnesses, I am inclined to prefer Mr Walker’s

version of the exchange as it would seem more likely to be an accurate description of the

exchange given all of the surrounding circumstances, and that Ms Frizell did not contest that

she used a work computer and work printer to print the material, and did not contest that she

[2023] FWC 1991

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distributed the material on site in circumstances where the information was contrary to the

Respondent’s policy position.

[163] In summary concerning section 387(a), I am satisfied the Respondent was entitled to

rely on Dr Jetnikoff’s Report in reaching its conclusion that Ms Frizell was permanently unable

to return to her role, and there are no reasonable adjustments which could be made to enable

her to do so, and therefore it had a valid reason to dismiss Ms Frizell.

(b) Whether the person was notified of the reason

[164] The show cause letter sets out that the Applicant had been deemed unfit to perform her

role. I am satisfied that the Applicant was on notice of the reasons the Respondent was

considering dismissing her, and was notified of the reasons for her dismissal being on the

grounds of incapacity at a meeting on 18 January 2023 and also in correspondence that day.

(c) Whether the person was given an opportunity to respond to any reason related to the

capacity or conduct of the person

[165] The Applicant has submitted she was denied an opportunity to obtain a second medical

opinion. Mr Walker’s email to the Applicant and her husband of 15 December 2022, attaching

Dr Jetnikoff’s Report expressly tells the Applicant that the Report has made a determination

about her fitness for work, and she is also asked to attend a show cause meeting where she will

be provided an opportunity to respond to the Reports findings. On reading the Report, it is clear

Dr Jetnikoff had concluded that the Applicant was permanently unfit to work for the

Respondent in any capacity. It should have been clear to the Applicant that her ongoing

employment was in jeopardy, and she was required to respond by 20 December, which was

then delayed until 12 January 2023. It was open from 15 December for the Applicant to have

asked the Respondent to confer with another of her treating medical practitioners or to ask for

more time to seek another opinion. The Applicant’s response to either the 15 December 2022

email of Mr Walker, or the show cause letter of 12 January 2023 did neither of these things.

[166] The Applicant also submitted that Dr Jetnikoff’s Report does not raise the issue of the

Applicant having a ‘malignant resentment’ toward the Respondent. Whilst it is true that the

expression, ‘malignant resentment’ does not appear in the Jetnikoff Report, Dr Jetnikoff was

clear in his evidence that he did not claim the expression was a medical diagnosis but was

instead a symptom of one. The actual diagnosis in the Report made clear Dr Jetnikoff’s believed

that the Applicant would be unable to return to work in any role, and the reasons why he

believed that to be the case. On that basis I do not accept that the Applicant was not on notice

of his clinical assessment of her medical condition, and the reasons for it.

[167] The Applicant has also complained that both herself, and Dr Jetnikoff were not made

aware that Mr Bayntun and Mr Walker would no longer be at the workplace from February

  1. The Respondent submitted given Dr Jetnikoff’s conclusions it is immaterial whether Mr

Bayntun and Mr Walker would be present or not, however Mr Brook would still be present and

the Applicant made no submissions on that issue despite the Applicant in her reply statement

claiming that Mr Brook was part of the issue with returning to work. As I have accepted the

conclusions in Dr Jetnikoff’s Report, I also accept that the issue of whether the Applicant and

Dr Jetnikoff not being aware of this information, is immaterial.

[2023] FWC 1991

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(d) Any unreasonable refusal by the employer to allow the person to have a support person

present to assist in any discussions relating to dismissal

[168] The Respondent did not refuse to allow the Applicant to have a support person. This is

a neutral consideration.

(e) Was the Applicant warned about unsatisfactory performance before dismissal

[169] The termination was not related to the Applicant’s performance. This is a neutral

consideration.

(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

[170] The Respondent is a large employer. This is a neutral consideration.

(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

[171] The Respondent has dedicated human resources staff. This is a neutral consideration.

(h) Any other matters that the FWC considers relevant

[172] The Applicant submitted that the Respondent’s failure to follow its own process, and

the Applicant not having been given an opportunity to respond in relation to the ‘malignant

resentment’ opinion are relevant matters, and further that Mr Bayntun and Mr Walker would

no longer be at the worksite. The Applicant submitted that it is plausible that she could have

been fit to return to work and this could have been explored. I have already addressed these

issues above and for reasons set out above do not accept that they are a basis to concluded that

the dismissal was unfair.

[173] The Applicant has claimed that the Respondent failed to support her whilst she remained

employed throughout the period of her illness. The evidence is that the Applicant made clear

she did not wish to engage with the Respondent directly throughout the process. There was

also some evidence that a number of staff from the Respondent had reached out to the Applicant

through her husband. The Applicant was permitted to exhaust all of her accrued sick leave and

annual leave, and then take a further period of a month and half of unpaid leave before being

asked for the first time by the Respondent to attend an appointment with her own treating

practitioner to provide more information to the Respondent concerning her medical condition

than the medical certificates provided up to that point that did not give any specific information,

or indicate a potential return to work. When the first report provided by the Applicant’s own

treating medical practitioner did not assist in clarifying the Applicant’s situation, the

Respondent then asked for a second report from the Applicant’s own treating medical

practitioner before taking the next step. In all of the circumstances the Respondent’s approach

was reasonable.

[2023] FWC 1991

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[174] In the course of submissions it has been clarified that the Applicant has been receiving,

and continues to receive income protection insurance at a rate of 75% of her income since her

termination and this does to some extent ameliorate the financial impact of her loss of

employment.

CONCLUSION

[175] I have weighed each of the considerations under section 387 of the Act. Having

concluded that the Respondent had a valid reason for the termination of the Applicant’s

employment, and despite there being some minor issues concerning compliance with the PPI

Procedure, overall, the procedure followed by the Respondent was fair, I have determined that

the termination of Ms Frizell’s employment was not harsh, unjust or unreasonable. On that

basis the application for unfair dismissal remedy is dismissed. An order to this effect will be

issued separately and concurrently with this decision.”

 

Frizell v OS ACPM Pty Ltd T/A BHP Operations Services [2023] FWC 1991 delivered 11 August 2023 per Simpson C