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
- 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.
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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