Unfair dismissal recently at FWC

Unfair dismissal hearing on 20 January 2016 in Sydney, the FWC found that a HR manager’s decision to dismiss an employee who couldn’t perform the inherent requirements of her role was reasonable, despite some “regrettable” lapses in process, the Fair Work Commission has ruled.

In Sao Duarte v The Paraplegic & Quadriplegic Association of NSW (full text here) involved an employee who in March 2016 emailed the CEO and advised that interpersonal issues at work were adversely affecting her performance and health. The CEO advised that he would monitor the situation.

A month later the HR manager asked the employee to attend a fact-finding meeting about allegations she had altered a client’s weekly medication pack without authorisation. The employee took leave the next day, claiming that that she was suffering from a workplace injury that had been exacerbated by bullying, she did not return to the workplace.

The employer subsequently deemed that Ms Duarte was incapable of performing the inherent requirements of her job due to a major depressive disorder, she was dismissed on the HR manager’s advice after she failed to respond to a show-cause request.

Ms Duarte claimed in her application to the FWC that her dismissal was unfair because she had been subjected to bullying over a  period of time, and was provided with no assistance after complaining about the bullying. She further stated that the fact-finding meeting made her feel targeted, as if she were being “groomed for dismissal”.

She didn’t deny being unable to perform the inherent requirements of her job at the time, but said she might have returned to full duties in the short-to-medium term.

The HR manager gave evidence to the FWC that the dismissal decision was based solely on medical evidence about Ms Duarte’s inability to do her job, even with modifications, and insisted her performance and conduct were irrelevant.

The HR manager said that after seeing references to alleged bullying in the employee’s medical report, she conducted a “fulsome” review (at 47) of her employment records and found no formal complaint. She claimed she only became aware of the employee’s email to the CEO after the dismissal.

Commissioner Booth found it was reasonable for ParaQuad to dismiss the employee after finding she couldn’t carry out the inherent requirements of her role, those requirements required her to be alert, handle emergencies and deal with clients with significant disabilities.

The Commissioner found that it was “regrettable” that the HR manager, having become aware of the allegations, didn’t “extend a conciliatory hand” by, for example, offering to have a conversation with the employee.

“[The manager] effectively asserted that there was no bullying or harassment problem because [the employee] had not followed the correct grievance process,” the Commissioner said.

She described the HR manager’s approach as “form over substance” and said that while it’s preferable for an employee to follow workplace protocol when making allegations, bullying could clearly occur without complaint.

“The art of good human resource practice includes responding to signals as well as addressing issues raised through formal channels.”

The CEO’s failure to take appropriate action, which would “certainly” have involved referring the email to HR, was also regrettable, Commissioner Booth said.

“The CEO said he’d monitor the situation, but gave no evidence of further action. “In my view this was an inadequate response to the concerns raised,” she said.

In dismissing the application, she noted the worker was pursuing a review of her workers’ compensation application, which could prove a more appropriate forum for her grievances.

Lessons for employers

When determining if someone can perform the inherent requirements of their role, employers are advised look to independent medical examinations.

If a complaint of bullying is made it should not be ignored even if it does not fit within the usual process or procedure.

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This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator

Unfair dismissal


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