Unfair dismissal and reasonable workplace adjustments

There are occasions when, through no fault of either an employee or his or her employer, or for that matter his or her colleagues, an employee simply cannot reasonably adapt to the employer’s workplace environment. This may be because of the personnel involved or the particular nuances of the job. And when this occurs the employer is faced with a dilemma. Whether the employer dismisses the employee or the employee resigns, the issue may come to be ventilated in an unfair dismissal case where the legal issue may be whether or not the employer has made reasonable adjustments to the workplace for the employee.

Here is the issue on show in an unfair dismal decision of the Fair Work Commission.

Extract from

“CONSIDERATION

[130] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 1

s.387(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)

[131] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

Inherent requirements

[132] In examining the inherent requirements of a role it is clear that matters of health and safety should be included – it is a particular application of the inherent requirement to perform one’s role with reasonable care and skill. This was made clear in X v Cth,:  4

“Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely “so obvious that it goes without saying” – which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.

It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

Nevertheless, contract or statute to the contrary, performing the duties of the employment without unreasonable risk to the safety of fellow employees is, as a matter of law, an inherent requirement of employment… (emphasis added)

It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.”

(Emphasis added)

[133] In the context of this matter the Respondent contends that it was an inherent requirement of the role for the Applicant to be able to perform his role in a safe manner and not put at risk himself or other employees. The risk they have identified is that they were informed by the GP Dr Sunda that there were permanent restrictions upon the Applicant’s returning to work which were, that he should not report to the supervisor of his substantive role. On several occasions the GP reinforced this restriction and the Psychiatrist maintained in her final report that there was a risk in returning him to his substantive role and that it would be preferable that he be placed in another role.

[134] The Respondent had provided a seconded role for 6 months and at the conclusion the Applicant still indicated he was unable to return to his role and the Respondent then determined that they would place him on the Disability Management process. The decision at that point was that he was no longer able to perform in his role without restrictions. The Respondent did request from the Applicant what would be regarded as reasonable adjustments and the suggestion of placing another person in between the Applicant and his Supervisor was considered but ultimately rejected as being, unworkable and not aligned with teamwork amongst the workgroup.

[135] The Respondent asserts that the Applicant at this point, when faced with no alternatives to maintain his employment with the Respondent sought a medical certificate/evidence from his GP. The GP responded by recording on medical letterhead that the Applicant had indicated that he wished to return to work with no restrictions. The GP provided no medical opinion as to his fitness to return or that the permanent restrictions were now lifted. The GP did not provide a medical clearance just reported the wishes of the Applicant who may have realised that a return to his original position with no restrictions was the only alternative he had to maintain employment.

[136] Two further medical reports from the Psychiatrists and the Psychologist did not traverse the workplace issues with any detail rather the Psychiatrist focused upon the impact that a return to work may have on his underlying Bipolar disorder. The Bipolar had not been the subject of the matter at issue with restrictions rather it was stress and anxiety experienced by the Applicant.

[137] In CSL CSL Limited T/A CSL Behring v Chris Papaoinnou [2018] FWCFB 2005 the Full Bench were faced with a diversity of view between Lion and Jetstar regarding medical evidence (references)

“[76] Contrary to the proposition in Lion Dairy, there is no basis to leave the resolution of any conflict in medical opinion to the employer. The Commission is frequently called upon to resolve evidentiary conflict, including the assessment of expert evidence.

[77] The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the Applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.”

[138] I adopt the approach and will make my own evaluation of the medical evidence to support whether the termination was a valid one.

………………………………………………….Reasonable Adjustment

[202] The Respondent considered a request by the Applicant to place another employee between the Applicant and his supervisor to act as an intermediary. This intermediary would then presumably allow information and directions to flow between the Supervisor and the Applicant without the Applicant having direct contact with his Supervisor. The Respondent considered this request but found that this approach would simply unworkable. The interposing of an intermediary clearly would represent an extra cost, further, what would the intermediary do as their normal role? What if performance issues arise or there is a disagreement? How do you develop teamwork through an intermediary? This request was not feasible, practical or reasonable.

[203] A similar matter was considered in Mohammed Aejaz Bukhary v South 32 Group Operations Pty Ltd (South 32) where the Applicant, as a result of suffering an Adjustment Disorder with anxiety features was only fit to return to work with a different manager or in a different department as the stressor in the Applicant’s case were the managers he reported to.

“[130] The medical evidence available to the Respondent at the time of dismissal included the fitness for work assessment undertaken by Dr Lee. Dr Lee’s assessment was as follows,

“The diagnosis is of an Adjustment Disorder with anxiety features. The trigger appears to be the irreversible breakdown in the relationships with his Managers.

He would be fit to return to work should he be able to work with a different manager that or department, however, should he return to the same department with the same Managers, the symptoms would likely return.

The stressor is a breakdown in a relationship with his superiors and is not related to the workload or to his work duties. Thus, do not recommend any changes to his duties as I anticipate that even if his workload was reduced, he would still find working with the same Managers difficult.”

[137] Importantly the Applicant throughout his dealings with the Respondent, before he was dismissed, and in the hearing took the position that his medical incapacity should be accommodated by the Respondent moving him to a different role so that he was no longer subject to those people who were his managers (or perhaps moving both of his managers to different roles). It was submitted for the Applicant that this was a reasonable adjustment for a large employer such as the Respondent to make.

[138] The Respondent rightly rejected this approach relying on the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button that,

“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his 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 that must be considered.”

[139] This principle was endorsed again in a more recent Full Bench decision in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes as follows,

“[53] We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.”

[140] The medical evidence available to the Respondent at the time of the dismissal established that the Applicant was incapable of returning to work with his managers. The Applicant was incapable of performing this inherent requirement of his role. This was a valid reason for his dismissal related to his capacity.

[204] For the Applicant to return to work without an appropriate level of risk, a change in reporting lines was not possible, neither was reporting through an intermediary to his supervisor for all interactions. There was no proposed adjustment that would enable the Applicant to work safety with his supervisor without the concomitant risk to health and safety.

Redeployment

[205] The Respondent under the DMP in the Enterprise Agreement did identify a total of three positions that were at the same level of classification structure, Senior Engineer Investigations, Senior Protection Engineer and Investment Portfolio Manager. Following a documented assessment process involving several managers a suitability match was not identified given the Applicant’s skills, expertise and experience required for the roles.

[206] A redeployment to the role the Applicant had performed on a temporary basis previously was sought however after consideration by the Respondent there was not an ongoing role in the Network Pricing and Tariff Team.

[207] I find the employer had a valid reason to terminate the employment of the Applicant, he was, in my view of the medical evidence, unable to perform the inherent requirements of his role without risk. The medical reviews were conducted over a two-year period and by several clinicians. The Applicant had a background condition of bipolar affective disorder, this condition was never raised by the Respondent as a matter that was given weight regarding their actions and ultimately the termination. I have not had regard to this medical condition, rather the issue raised by the Applicant in and managed by the Respondent was the stress and anxiety experienced by the Applicant if he were to return to his substantive role working for his supervisor. In this it is clear that no clearance was provided by his treating GP who had oversight of his patient over this period. He reviewed the medical reports in December 2020 and he stated again in June 2021 that he considered the restrictions were permanent. He did not recant from this position.

[208] The reports of the psychologist I regard as treatment focused and do not place much weight on his diagnosis but rather appreciate that he was focused on providing interventions to assist the Applicant manage his stress and anxiety. The Psychiatrists reports, once the Bipolar issues are put to one side, although there is an implicit warning by the Psychiatrist that issues in the workplace may exacerbate the underlying bipolar condition. Her comments are that any return to his substantive role would require management and it would be preferable that an alternative position be found.

[209] Thus, my view after careful consideration of the evidence is that the clinicians provided enough information and opinion that the Respondent could reasonably conclude that a return to his substantive role was not possible. The medical certificate from his GP only restated the Applicants opinion and provided no medical evaluation or opinion.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[210] The Respondent undertook a lengthy and comprehensive program of assistance to attempt to return the Applicant to his position. Over a two-year period they provided a seconded role for 6 months, initiated a Disability Management Program, reviewed a number of positions with the assistance of the HR function to evaluate suitability. Once that path was exhausted they then discussed any reasonable accommodation with the Applicant and when this was not found to be workable and following more medical reports moved to terminate. At all stages, the Applicant had a representative and was informed and involved in the processes leading ultimately to his termination. He was informed of the reason and provided the opportunity to respond. This factor weights positively towards the termination not being unfair.

(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

[211] There was no unreasonable refusal by the employer to allow the Applicant to have a support person present. He was represented at all times throughout the entire process. This factor weights positively towards the termination not being unfair.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[212] The Applicant was not terminated because of unsatisfactory performance

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[213] The Respondent is a relatively large employer with a dedicated human resources capability. The Respondent undertook a lengthy and well-resourced series of actions to support the Applicant and rehabilitate the Applicant to being able to return to his position. A 6-month secondment and a review of alternative positions as part of this demonstrates the commitment the Respondent had to assist the Applicant return to his position. This factor weights positively towards the termination being not unfair.

(h) any other matters that the FWC considers relevant

[214] Frequently and invariably the consequences of a termination upon an individual are adverse 22 The impact of the termination after a period of two years on leave sick no doubt was substantial, however not out of proportion or harsh. There were many off ramps during this period for the Applicant had he made a recovery to return to his role. The cost on the employer was significant as supporting the Applicant and providing temporary roles as well as the relevant processes of identifying and assessing redeployment and possible reasonable adjustments did impose work upon the Respondent. However, this effort is what the community expects from a large employer, however, it is not expected the employer bear this for an indefinite time.

[215] The Applicant did not make any efforts to mitigate his loss, he was offered assistance in developing his resume and coaching in interviewing and networking which were not taken up. He had had a long and stable career with progression which spoke to both parties in terms of his commitment and work performance and to the organisations career progression and opportunities for employees.

[216] The outcome was not harsh relative to the circumstances of the matter, the termination was done after a lengthy and considered process by the Respondent who supported the Applicant through these difficult times. All the Applicant’s suggestions were considered and given consideration and a process of managing the disability was followed. The Applicant’s representative advocated strongly and effectively for the Applicant and the Respondent did respond to many of the issues raised by the Applicant’s representatives.

[217] The recent finding of the Full Bench of the Commission in [2022] FWCFB 65 informs a consideration that due process undergone by a Respondent in considering termination weighs against a dismissal’s unfairness. In relation to the current matter, I find similarly and even more so did the Respondents significant undertakings in relation to redeployment weigh against the dismissal’s unfairness.

[218] Whilst the impact upon the Applicant was that he was no longer employed, this followed a two-year process where he was in the workplace for approximately 6 months to assist in his return to his substantive role. The Respondent considered all the evidence regarding a safe return to work against his capacity to perform the inherent requirements of the role in a safe manner and determined that this could not be done.

Human Rights

[219] The Applicant drew the Commissions attention to The Human Rights Act 2019 (Qld) (HR Act) and that it applied to the Respondent, given it is a Government Owned Corporation. Specifically, that the Respondent pursuant to section 58 (1) of the HR Act, must consider human rights in its decision-making process. To this point I note that the Respondent did not dismiss the Applicant because of his bipolar disorder diagnosis. Rather, the Respondent focused their attention upon whether the Applicant could perform the inherent requirements of his substantive role. Further they investigated whether redeployment opportunities existed and if reasonable adjustments to his substantive position were available. No evidence was put either way that the decision to terminate the Applicant had any basis for unlawful discrimination as a result of his bipolar disorder diagnosis or any other factor.

CONCLUSION

[220] The Applicant suffered a significant and lengthy illness, he had the support of his GP throughout the period and he was not able to return. The Respondent utilised all processes available to them in attempting a return to work including a 6 month secondment and the use of the DMP they seriously evaluated three alternative positions with detailed and documented evaluation of the role against the Applicant’s skills experience and capabilities however were unable to make a match. The Respondent further considered reasonable adjustment however that was ultimately an unworkable solution reporting through another employee to his substantive supervisor.

[221] The Respondent had the benefit of substantial medical evidence, the consistent view of his treating GP who saw the Applicant the most frequently and had been with him for the over two-year journey was that he was permanently restricted from working with his supervisor in his substantive role. This was a significant impediment that ultimately could not be overcome. The additional reports provided by a clinical psychologist and a psychiatrist offered insights into his bipolar disorder diagnosis which was not a consideration by his employer during the process. However, the additional reports of the specialists did warn against a return to his substantive role without the interpersonal matter being resolved. In the face of the inability for the employer to resolve that matter and with no alternative role or a suitable adjustment that Respondent took the step of termination for the inherent capacity of the role without risk. There was a valid reason and further I do not identify any harshness or unreasonableness in the decision.”

Adkins v Energy Queensland Limited (2022) FWC 786 1 June 2022 per Lake DP