Newton v Goulbourn Mulwaree Council [2022] NSWIRComm 1109

Industrial Relations Commission New South Wales Medium Neutral Citation: Newton v Goulbourn Mulwaree Council [2022] NSWIRComm 1109 Hearing dates: 30 November, 1 December 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – termination due to medical reasons – reasonable efforts to provide suitable duties – applicant provided with appropriate support - dismissal not harsh, unreasonable, or unjust Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 (NSW) ss 84, 88 Cases Cited: Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Corrective Services NSW v Danwer [2013] NSWIRComm 61 J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022 Jenkins v Secretary, Ministry of Health [2022] NSWIRComm 1013 Texts Cited: Nil Category: Principal judgment Parties: Kylie Newton (applicant) Goulburn Mulwaree Council (respondent) Representation: Kylie Newton (self-represented) R Hassall of Sparke Helmore (respondent) File Number(s): 2022/210851 Publication restriction: Nil

decision 1. Kylie Newton ("applicant") was terminated from the Goulbourn Mulwaree Council ("Council") on 18 July 2022 after about 16 years' service, working most recently as the Business Manager Finance and Customer Service. The reason for the termination given by Council was that the applicant could no longer perform her job due to her medical condition and it had not been able to find her suitable alternate employment. 2. The applicant claims that the termination of her employment was harsh, unreasonable, and unjust. She submitted that she was treated poorly by Council's executives after she commenced a period of workers compensation leave, about 10 months before her dismissal. The applicant submitted that this treatment resulted in a deterioration of her medical condition which led to the termination of her employment. She argued that she was not given a fair opportunity to rehabilitate in the workplace as Council took too long to provide her with alternative duties and prior to this, inappropriately offered duties that were a sub-set of her substantive role, rather than those provided for in her certificates of capacity. The applicant also argued that the dismissal was unfair because her request for her position to be held open for 12 months was not acceded to and she should have been able to utilise her accrued leave before she was dismissed. 3. The matter was listed for substantive hearing for two days commencing 30 November 2022. Ms Newton represented herself in the proceedings, while Council was represented by Mr Roland Hassall, solicitor. 4. I have decided for the reasons set out in this decision that the applicant's dismissal was not harsh, unreasonable, or unjust.