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. Background 1. The applicant was employed in the position of Business Manager Finance and Customer Service. The applicant's role was a senior position, and she was responsible for managing and leading Council's Finance and Customer Service teams. 2. On 30 August 2021, Council issued the applicant a direction to attend a meeting on 2 September 2021 to respond to an external code of conduct complaint. 3. On 31 August 2021, the applicant left work to go to the doctor and was certified unfit to return to work until 7 September 2021. The applicant did not return to the duties of her role after this time. 4. On 10 September 2021, the applicant made a workers compensation claim, wherein the applicant claimed that she was suffering from an illness because of overwork. 5. On 20 September 2021, the applicant's supervisor, Mr Brendan Hollands met with the applicant to discuss her return to work and proposed alternative duties, to commence the following week, once the applicant had been able to receive sign off from her Doctor. However, the applicant was unable to return to work the following week and she remained unfit for any work until 8 January 2022. From 8 January 2022, the applicant had capacity to perform specific duties unrelated to her role. 6. On 14 March 2022, Council directed the applicant to attend an independent medical appointment ("IME") on 29 March 2022. The applicant did not attend that appointment. 7. On 1 April 2022 Council directed the applicant to attend a rescheduled IME on 12 April 2022. Council rescheduled the IME to 13 April 2022 at the applicant's request. The applicant did not attend that appointment. 8. On 22 April 2022, the applicant was directed to attend, and she did attend, an IME on 18 May 2022. 9. On 6 May 2022, the applicant commenced suitable duties, initially at the museum and then at the aquatic centre. The applicant remained unfit to perform the duties of her substantive role. 10. Following the IME, Council received a medical report from a Psychologist, Mr John McMahon dated 30 May 2022 (the McMahon report) which included the following medical opinion: "In my opinion Ms. Newton's diagnosis is that of Major Depressive Disorder with Anxious Distress and with (query) Mood Congruent Psychotic Features... there may be an emerging psychotic process masked by medication or alternatively psychotic features emerging as part of her depression. …. In my opinion the symptoms of Major Depressive Disorder ... prevent her from returning to her role …. given the severity of the symptoms, [there were] no adjustments [that] would enable her to perform the duties of her role In my opinion without a positive response to psychiatric treatment, for the near of foreseeable future Ms. Newton is unable to perform her duties. Given her state, I cannot provide an estimated timeframe that Ms Newton will be able to perform some of her duties as her condition appears to be treatment resistant or some more chronic state with organic involvement." 1. On 6 June 2022, the applicant was given a show cause letter inviting her to respond to Council's preliminary decision that the medical evidence supported the termination of her employment. The applicant was invited to provide any further medical evidence that she might have that she would like Council to take into consideration and she was invited to suggest alternatives to termination including whether she would accept an offer of permanent redeployment into a different role. 2. The applicant requested additional time to respond, and Council afforded her an extension of two weeks to do so. The applicant did not provide a written response to the show cause letter or any other material, opting instead to attend a meeting with Mr Matt O'Rourke, then acting General Manager, in person. 3. On 30 June 2022, the applicant attended a meeting with Mr O'Rourke. Among other things, the applicant requested that her position be filled temporarily to provide her an additional 12 months to attempt to recover. 4. On 7 July 2022, Council terminated the applicant's employment by letter, citing her medical incapacity as the reasons for the dismissal. The applicant's case 1. The applicant relied upon her own evidence, including a statement filed on 4 October 2022 (Ex A1), a bundle of documents (Ex A2) and a reply statement filed on 15 November 2022 (Ex A3). In addition, the applicant was granted leave to tender additional documents in the proceedings. 2. The applicant filed written submissions on 4 October 2022 and made oral submissions. The applicant was cross-examination by Council's solicitor during the hearing. 3. As best I can discern, the applicant's case is that the termination of her employment was harsh, unjust, and unreasonable because she was precluded from returning to Council's workplace, at least initially, after she had some capacity to do so. She claims that this was a deliberate campaign of bullying and harassment by senior management who personally resented her, and that this treatment exacerbated her injury, which ultimately led to her termination. 4. The applicant contended that the dismissal was harsh, unjust, and unreasonable because: 1. Mr Ken Wheeldon, then acting Director Corporate and Community Services and Mr O'Rourke did not have all the information and knowledge in respect of her matter to make the decision to terminate her employment. 2. The applicant was denied procedural fairness because Council made the decision to terminate her employment based on the medical information of Dr John McMahon when she had an appointment with her psychiatrist on 12 October 2022. The applicant submitted that she repeatedly asked for more time to provide this information prior to her termination. She further submitted that the Council did not provide her with sufficient time to consider an offer of settlement put to her by Council. 3. The applicant was not given a fair opportunity to rehabilitate in the workplace before she was terminated. The applicant submitted that Council: 1. caused inappropriate delays in providing suitable duties by making requests for extra information from the applicant's doctor and psychologist when "they potentially knew they were not going to allow the duties anyway"; 2. only allowed the applicant to return to the workplace undertaking tasks within her role despite her psychologist's advice that she was able to do other work from January 2022; and 3. placing her in a position as a "box ticking exercise" because she was not able to be retained by Council in any capacity. 1. Council was neglectful of its duty of care in its treatment of the applicant, perpetuating her condition, leading to her termination, including by: 1. not "checking in" on her after her workplace injury; 2. sending the without prejudice Settlement of Employment Offer letter on 26 November 2021, offering the applicant an equivalent of a redundancy payment to finalise her employment with Council; 3. not providing appropriate support when issuing directions to attend IMEs, issuing formal and final warnings for not attending the IMEs, the show cause letter with the IME attached, and the termination letter; 4. Mr Wheeldon sending a "barrage" of emails and phone calls and messages and seeking medical information in respect of her attendance at the IME scheduled on 13 April 2022; and 5. Council initially declining the applicant's request for sick leave instead of annual leave after her workers compensation payments ceased in December 2021. 1. The termination was premature. The applicant submitted that the termination was unreasonable because she was asked to attend a Fitness for Work Assessment exactly 26 weeks from the date of her workers compensation injury, despite not being provided with a fair opportunity to rehabilitate. Further, the decision was taken when the applicant still had leave available and other staff have been allowed to effectively run down their leave before being terminated, even when it was known they would not be able to return to the workplace. 1. The applicant also expressed concern that Council had made assertations that she had not responded to a code of conduct complaint and that as a result the matter had been placed on hold. As Council conceded that the applicant's work performance had not been an issue in her employment and that they do not rely upon the code of conduct issue, I have found it unnecessary to address this further. Council's case 1. Council relied upon statements from the following witnesses in support of its case: 1. Mr Matt O'Rourke, Executive of Council filed 3 November 2022 (Ex R5). Mr O'Rourke was the person who made the decision to terminate the applicant's employment on behalf of Council. At the time he gave evidence before the Commission, Mr O'Rourke was no longer employed by Council. 2. Ms Elise Jackson, Business Manager Human Resources filed 3 November 2022 (Ex R4). Ms Jackson was involved in the coordination and overall management of the applicant's leave after her injury and Council's attempts to return her to work. 3. Ms Brendan Hollands, Director Corporate Services, filed 3 November 2022 (Ex R6). Ms Hollands was the applicant's manager. 1. The applicant cross-examined each of Council's witnesses at the hearing. 2. Council filed an outline of submissions on 3 November 2022 and delivered oral submissions before the Commission. Council argued that the dismissal was not unfair, based on the uncontested medical evidence and the decision had been taken with due process being afforded to the applicant. Relevant statutory provisions 1. The fundamental question under s 84 of the Industrial Relations Act 1996 (NSW) ("Act") is whether the dismissal was "harsh, unreasonable or unjust". These terms are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, 28 cited in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at p 467. 2. The Full Bench has stated in Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]: "It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Ply Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'" 1. Section 88 of the Act relevantly provides that the following matters may be considered in determining whether the dismissal was unfair: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account— (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and … (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. The applicant bears the onus to demonstrate that her dismissal was unfair within the meaning of the Act. Consideration Did the reasons given for the termination have a basis in fact and was the applicant provided with an opportunity to respond to those? 1. The applicant's employment was terminated because she was not able to complete the inherent requirements of her position as a Business Manager Finance and Customer Service given her diagnosis of Major Depressive Disorder with Anxious Distress and with (query) Mood Congruent Psychotic Features: see [14] above. 2. In J Boag & Son Brewing Pty Limited v Alan John Button [2010] FWAFB 4022, the Full Bench of Fair Work Australia (as it then was) stated as follows (at [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." 1. Although stated in the context of the unfair dismissal provisions contained in the Fair Work Act 2009(Cth), it is appropriate to consider the applicant's incapacity to return to her pre-injury duties in the context of s 88(b) of the Act. 2. The applicant submitted that Mr O'Rourke did not have all the information and knowledge in respect of her matter to make the decision to terminate her employment. The applicant also submitted that Mr Wheeldon, who advised Mr O'Rourke as acting Director Corporate and Community Services, did not have sufficient background information regarding her circumstances. She further submitted that she was denied procedural fairness because Council made the decision to terminate her employment based on the McMahon report when she had an appointment with her psychiatrist on 12 October 2022. The applicant argued that she had repeatedly asked for more time so she could see her psychiatrist and provide additional information prior her termination. 3. Mr O'Rourke decided to terminate the applicant's employment with Council. At the time he made the decision he was the Acting General Manager in Council, occupying that role for a short period between 6 May 2022 until 11 July 2022. 4. Mr O'Rourke gave evidence that after he received the McMahon report and spoke with colleagues about the impact of the applicant's absence and behaviour, he formed the view that Council could not continue to hold open her position, particularly as there was no prospect of her returning to her role in the foreseeable future: Ex R5 at [11]-[12]. 5. The medical evaluation relied upon by Council dated 20 May 2022 states that the applicant does not have present capacity nor capacity in the foreseeable future to undertake the inherent duties of her role. 6. Contrary to the applicant's assertion, the evidence is that she was provided with an opportunity to refute the medical evaluation of Dr McMahon but did not do so. The applicant was provided with the show cause letter on 6 June 2022: Ex A1 at [63]. The show cause letter provided that the applicant was able to respond by 14 June 2022. At the applicant's request, the timeline was extended until 28 June 2022: Ex A1 at [63]. 7. On 30 June 2022, a meeting was conducted between the applicant and Mr O'Rourke in respect of her show-cause letter. The applicant was accompanied by a support person. There were some differences in the evidence of the applicant and Mr O'Rourke about aspects of the meeting. It is not necessary to resolve those. Both gave evidence that the applicant was upset during the meeting and presented that she wanted to remain employed by Council. Further, the applicant requested as an alternative to termination that her position be left open for a period of 12 months so that she might be able to continue to rehabilitate in the workplace. Importantly, neither Mr O'Rourke nor the applicant gave evidence that she requested additional time to produce further or different evidence with respect to the McMahon report about her diagnosis and prognosis: Ex A1 at [71]; Ex R5 at [27]. Indeed, in response to receiving the letter of termination, the applicant sent an email on the same day to Mr O'Rourke and Mr Rudi Oppitz, the applicant's union representative stating (p 79 of Ex A2): "Council now has evidence from their doctor/psychologist with a PhD that maintains they could not make me come straight back to my substantive role and needed to offer light duties allowing for a phased return to work. This is consistent with all of my certificates of capacity from an actual doctor along with input from my psychologist." 1. I find that the applicant did not ask that the decision to terminate her employment be postponed so she could provide her own contradictory medical evidence. Further, the applicant has not filed any evidence in these proceedings that contradicts the McMahon's report. 2. Mr O'Rourke had a proper reason to terminate the applicant on behalf of Council. The applicant was unable to perform the inherent requirements of her role at the time of her dismissal and the medical evidence was that she would not be able to do so for the foreseeable future. There was a reason given to the applicant for the termination, it had a basis in fact and the applicant was given a chance but did not seek to contradict the reasons. 3. I reject the applicant's submission that Mr O'Rourke did not have the relevant knowledge and information to make the decision. Mr O'Rourke did not need to resolve the various issues and claims of the applicant with respect to her colleagues to make an informed decision with respect to the viability of her ongoing employment given her medical prognosis. 4. There was no credible evidence that Mr O'Rourke made the decision to terminate the applicant's employment because he or other employees of Council personally resented the applicant. To the contrary, I have found they took an empathetic approach towards the applicant's circumstances and tried to manage the situation professionally and with compassion. Importantly, Mr O'Rourke considered the applicant's request to leave open her position for 12 months but decided that this could not be facilitated. I accept his evidence that he had not predetermined the outcome of the process ahead of the show cause meeting. 5. The applicant also raised as a matter of procedural fairness, that she was given insufficient time to consider the offer of "financial assistance" offered by Council to support her exit. Prior to the applicant's termination, the parties were engaged in a discussion about a potential monetary settlement, subject to the applicant executing a deed of release. After the show cause meeting of 30 June 2022, Mr O'Rourke delayed the decision to terminate the applicant at the request of Mr Oppitz, until he informed Council that there was nothing further to put forward, on or about 6 or 7 July 2022. There is evidence that the applicant had access to advice about the offer approximately 1 week prior to the decision to terminate her employment: Ex A1 [76]-[77]. 6. The obligation to provide procedural fairness arises in the context of the decision to terminate the applicant, not in respect of without prejudice negotiations occurring parallel to this. However, in my view, the applicant had sufficient time to consider the position and whether she would accept the offer put. The evidence suggests that the applicant did have time to consider the offer, received advice about it and choose to reject it because she formed the view that she was being offered "breadcrumbs" and did not want to sign a deed of release that contained a confidentiality clause: Ex R4 at pp 36-37. Were Council's efforts to rehabilitate the applicant in the workplace once she had some fitness for duty reasonable and appropriate? 1. The applicant argued that she was not given a fair opportunity to rehabilitate in the workplace before her employment was terminated: see above at [22](3). 2. Council's efforts to return the applicant to work commenced shortly after she sustained her injury. On 20 September 2022, Ms Hollands met with the applicant to discuss a draft recover at work plan, subject to her doctor's approval, with a view of having her back full-time by 1 November 2021. The draft recovery at work plan was not implemented and the applicant remained on leave. 3. The applicant had capacity to perform specific duties unrelated to her role from 8 January 2022. The applicant's capacity was to work for 4 hours per day 2 days per week with the suggestion of lawn mowing or work in the stores. However, the applicant had applied for annual leave in May 2021 for the period of 24 December 2021 until 31 January 2022 and that application had not been withdrawn as from 7 January 2022: Ex R4 at [19]. 4. Council decided that the lawn mowing, and stores duties were not suitable for reasons including the displacement of staff undertaking the work and the applicant's training and competency for those roles. Mr Hollands gave evidence that he was willing to discuss and identify other duties for the applicant if he had more information about her medical capacity: [39] of Ex R6. Based on the reasons given by Council's witnesses, I do not think it acted unfairly in rejecting these tasks for the applicant's return to work and request further information to evaluate other possibilities for suitable duties. 5. Mr Hollands gave evidence indicating that he was keen to get the applicant back working in the Finance Team, because he was "desperately trying to ease the burden on the staff trying to fill the duties within her role": Mr Ex R6 at [41]. Under cross-examination, Mr Hollands gave evidence that in identifying options for the applicant's return to work, he did so because he believed that this would assist the applicant in returning to her role. There was no credible evidence that Mr Hollands actions were taken for any reason other than to meet Council's obligations to assist the applicant in getting back to work. 6. In early February 2022, Council proposed work involved in the Finance Team for the applicant to do that was available, namely the assessment of grants. At this point of time, the applicant had indicated that she was unwilling to work with her manager, Mr Hollands and the offer was put on the basis that she would not need to be in contact with him. The applicant rejected this work and was distressed by this suggestion and was suspicious of Council's motivations in offering this work, given this was what she was doing when she became unwell: Ex R4 at Exhibit G. I accept the evidence of Mr Hollands that there was no ill-intent in offering the applicant this work and that he understood the applicant's injury was sustained because of "overwork", not due to a particular task being undertaken. 7. On 16 February 2022, Council also offered the applicant work to analyse the YTD capital project transactions to ensure all transaction can be classed as capital, which Mr Hollands identified could largely be done autonomously. Ms Jackson gave evidence that this offer was conveyed to the applicant through Mr Oppitz and in a discussion with StateCover on 23 February 2022, however, no response was received. 8. A consistent theme in the applicant's case was that Council did not offer her duties "consistent with her certificates of capacity", the suggestion being that it had done the wrong thing by offering her duties that related to her substantive role, rather than those contained in the certificates of capacity. It is reasonable that Council, in attempting to accommodate the applicant back into the workplace would look for and offer potential suitable duties consisting of a subset of the tasks associated with her substantive role, with a view of having those assessed by the treating doctor as suitable. 9. In February 2022, the applicant's treating Doctor issued a certificate of capacity where work related to the customer service or administration in specific Council worksites was identified as suitable. Council considered these and was unable to offer work in the identified areas for reasons including the availability of the work and the suitability of the supervisory arrangements for the applicant in those areas: Ex R4 at [26]. The explanation provided by Mr Hollands when cross-examined and Ms Jackson in her evidence in chief as to why these positions could not be offered at that time are reasoned and logical and there is no cogent evidence to contradict them: Ex R4 at [26]-[27]. 10. Also in February 2022, StateCover advised Council to wait until the new rehabilitation consultant was on board to discuss suitable duties with the treating Doctor and that once a recover at work plan was signed then Council could proceed with offering formal suitable duties: Ex R4 at [31] and Annexure "J". 11. Mr Andrew Johnson, the new rehabilitation provider, was appointed by Council, contacting Ms Jackson on 21 March 2022 via email. Mr Johnson stated that Council would hear from him in April after he had consulted with the applicant and her treating Doctor. 12. On 3 May 2022, Council offered the applicant suitable duties in the Museum department which she commenced on 6 May 2022. When the work at the museum ended, the applicant worked in the Aquatic Centre 3 hours a day 2 days a week. She continued performing these duties until her dismissal. 13. Based on this chronology, I do not agree with the applicant that there were inappropriate delays in providing her with suitable duties. Council proactively and positively engaged with the process of identifying suitable duties for the applicant to be returned to the workplace. There were some delays in this process that were caused by the appointment of Mr Johnson as the rehabilitation provider (a recommendation of the applicant's union) and the advice of StateCover to await his appointment before continuing to engage with the applicant about potential suitable duties: Ex R4 at Annexure J at p 29. 14. Once appointed, Mr Johnson explained that he would meet with the applicant and then conduct a case conference with her doctor in April. Those were appropriate steps for him to take and the delay they caused were not unreasonable. Indeed, it would seem those steps were being taken with the optimistic intention of returning the applicant to her role with a hope of achieving "a good outcome for both Ms Newton and the Council": Ex R4 at Annexure K at p 31. 15. I reject the applicant's submission that Council acted unreasonably by only allowing her to return to the workplace undertaking tasks within her role between 8 January 2022 and 7 May 2022, despite advice that she was only able to do other work from January 2022. To the extent that this submission relates to the mowing and stores work, as I have indicated, Council's reasons for not providing that work are rational, and I have no reason to question their assessment that the applicant's request could not be accommodated. In any event, Council ultimately provided the applicant with work that was outside of her area in the Museum and Aquatic Centre, albeit after a delay caused by the appointment of Mr Johnson as the applicant's new rehabilitation provider and StateCover's advise to hold-off on offering further duties until certain steps had been undertaken. There is no evidence that the work offered to the applicant was done as a "box ticking exercise." 16. For the forgoing reasons, I find that Council's efforts to support and rehabilitate the applicant in the workplace were reasonable. I reject the applicant's case that they were insufficient. 17. Further, contrary to the applicant's submissions at the hearing, there is no medical evidence to support the proposition that her medical condition deteriorated because of Council's failure to provide suitable duties between 8 January 2022 and 5 May 2022. The applicant referred to the certificate of capacity dated 26 November 2021 relating to period 30 November 2021 to 7 January 2022. That certificate provided that the applicant had no capacity for work during that period, but noted: "Return to work – same role and safe return – to her usual job responsibility as Finance manager – slow start from next year." 1. This is not medical evidence that proves that the applicant did not return to her role because of the actions or inactions of Council. There are a range of reasons why the apparent prognosis in the certificate failed and there is not a sufficient basis to conclude why the applicant's health did not improve to the point she could return to her original duties. Did Council neglect its duty of care to the applicant? 1. The applicant claimed that Council was neglectful of its duty of care in its treatment of her, perpetuating her condition, leading to her termination as set out above at [22](4). 2. I was unable to discern that Council's witnesses harboured any personal resentment towards the applicant. In my view, they took appropriate steps in respect of the concerns they each had for her welfare, consistent with the roles each had in the rehabilitation process. 3. I do not accept the applicant's evidence that no one "checked in" on her. It is not in contest that Ms Jackson "checked in" on the applicant on 10 September 2021. Under cross-examination, the applicant conceded that Ms Jackson called her on 9 September 2021, leaving a message. When she spoke with Ms Jackson the next day, the applicant was informed about the Employee Assistance Program and told by Ms Jackson that she could call her anytime. Under cross-examination, the applicant conceded that she told Ms Jo Miller, the applicant's external rehabilitation consultant prior to the appointment of Mr Johnson, that she did not wish to communicate with Ms Jackson, Mr Hollands or Mr Warwick Bennett, then General Manager, moving forward. 4. Ms Jackson wrote to StateCover on 7 April 2022 expressing her concern for the applicant's wellbeing, even though the applicant had named her as someone she did not want to have contact with and would be detrimental to her recovery: Ex R4 at Annexure "L" at p 32. 5. Ms Jackson also gave evidence that Mr Neil Weatherstone, then Recovery at Work & Wellbeing Officer "checked in" with the applicant on several occasions before Ms Miller was appointed as an external rehabilitation provider: Ex R4 at [52](c). There was also evidence that Ms Hannah Read, Recovery at Work & Wellbeing Advisor checked in on the applicant when she returned to work in person from May 2022: Ex R4 at Annexure "O" at p 42. The applicant's criticism of Mr Hollands for not "checking in" on her is curious, given she had indicated she did not wish to communicate with him when she was on workers compensation leave: Ex R6 at [29]. 6. Other ways in which the applicant was supported by the Council included: 1. financial assistance relating to retraining; 2. a significant financial offer for a supported exit from Council equivalent to a redundancy payment; 3. the provision of a motor vehicle whilst she was on workers compensation leave; and 4. providing ongoing access to the Employee Assistance Program for the 12 months after her employment was terminated. 1. Although it was stated that Council provided a permanent redeployment opportunity to the applicant in the letter of termination, Mr O'Rourke was unclear when cross-examined whether this had actually occurred. 2. Ms Jackson expressed her approach to managing the applicant in the following terms (Ex R4 at [54]): "Throughout this matter I have acted to ensure a fair process was undertaken. In Ms Newton's first fortnight of sick leave, l conducted a check in phone call. Shortly after, when Council was advised Ms Newton did not wish to have contact with anyone at Council, I respected these wishes notwithstanding that I did not understand why this was requested. I understood that I was personally named as someone Ms Newton did not want to have contact with and someone Ms Newton believed would be determinantal to her recovery. Despite this, I continued to express my concern for her welfare in other ways (including when I wrote to StateCover on 7 April 2022 expressing my concerns for Ms Newton's wellbeing). I have been instrumental in giving advice to the decision makers in terms of the industrial process to be followed to ensure that Ms Newton had every opportunity to avoid the termination of her employment and to explore mitigation strategies if that could not be avoided. I worked cooperatively with Ms Newton's Union representative in order to facilitate the provision of information and Ms Newton's preferences in relation to meetings with Council staff. I suggested and agreed to the offer of redeployment for Ms Newton into a role for which she had capacity and I sought independent legal advice to further ensure the fair treatment of Ms Newton." 1. Ms Jackson's summary is consistent with the objective evidence in this matter. 2. Mr O'Rourke gave evidence that he felt sad about the burden the applicant was carrying in life when he read the McMahon report. I accept his evidence that he tried to be empathetic when conducting the show-cause meeting with the applicant. 3. There is no substance to the applicant's claim that she was not provided with sufficient support when provided with directions to attend medical examinations, issued with warnings for disobeying two of those directions and provided with the show cause and termination letters. Council consistently provided the applicant with advice that she was able to obtain support from the Employee Assistance Program (EAP) and gave her the option of having a support person attend with her at the show cause meeting. She was also offered the opportunity to respond to the allegations that she did not obey a reasonable and lawful direction to attend the show cause meetings by writing, although she chose to meet with Council instead. The applicant also had the benefit and support of her union's assistance throughout the process. 4. The applicant's complaints with respect to Mr Wheeldon's management of her attendance at the medical appointment originally scheduled for 12 April 2022 is also without substance. The applicant was issued with a direction to attend the second medical appointment scheduled for 12 April 2022. She requested that the date be changed to 13 April 2022. The applicant indicated via email to Mr Wheeldon that she could not attend due to not being able to drive herself to the appointment. Arrangements were made for her to be conveyed to the medical appointment which the applicant agreed to. However, the applicant later emailed Mr Wheeldon stating that she could not be driven by a person she did not know. 5. The applicant's husband then informed Mr Wheeldon that all further contact be made through him, and that the applicant would not attend any appointments until her health improved. On 8 April 2022, Mr Wheeldon wrote to the applicant providing her with an opportunity to provide medical evidence that she was not fit to attend the appointment or any other evidence in respect of the reasonableness of her refusal to attend the medical appointment. The applicant provided a medical certificate that stated that she was not fit for her usual occupation which Council did not accept as medical evidence of her incapacity to attend the medical appointment. 6. The applicant was not barraged with communications with respect to the direction to attend the medical appointment. The communications were prompted by the applicant wanting to change the date, arrangements being made to accommodate her travel and then her communications that she would not attend despite those arrangements. Council then properly provided her with an opportunity to respond to the allegation that she had refused to follow a reasonable instruction. The communications were not inappropriate and there is no evidence to demonstrate that Council was negligent in its actions. 7. I agree with the applicant that given her circumstances it would have been prudent for Council to check that she still intended to take annual leave from 24 December 2021 until the end of January 2022. However, this did not make the dismissal unreasonable or harsh, noting Council ultimately reversed the annual leave and instead paid the applicant sick leave for the relevant period. In her evidence, Ms Jackson stated that the reason for the initial decision was that the applicant was not entitled under the Award to be paid sick leave for the period as she was on pre-approved annual leave and had not asked for this to be changed: Ex R4 at [52](d). While I have found it unnecessary to consider the correctness of Ms Jackson's position about the applicant's entitlement under the relevant award, I accept her evidence as to the reason a process of approval was required to reverse the applicant's leave request to facilitate her accessing sick leave during the relevant period. 8. Council provided appropriate support to the applicant and the applicant has not demonstrated that it neglected its duty of care to her. To the contrary, Council handled the termination of the applicant's employment in an even handed and fair manner. Was it unreasonable for Council to terminate the applicant when she had accumulated leave available to her? 1. The applicant argued that the decision to terminate her employment was made hastily. She pointed to the direction to attend the first IME being made exactly six months after her injury was sustained. The applicant sought to compare the treatment of Council of her situation to that of other employees in analogous situations: Ex A1 at [79]. 2. It is not possible to assess the applicant's situation against the other employees she referred to in her evidence without greater detail about their circumstances including the nature of the roles each occupied. To use the colloquial, the Commission does not know if it is comparing "apples with apples". In any event, the question is whether the applicant was treated fairly in the circumstances presented in her case and a comparison with other situations was unlikely to be of assistance in this matter. 3. There is no requirement that an employer continue to employ a person while ever they can perform suitable duties: Jenkins v Secretary, Ministry of Health [2022] NSWIRComm 1013 at [60]. When the decision was made to terminate the applicant's employment, she had not been able to return to her role for about 10 months. The McMahon report provided that the applicant would be unable to return to her substantive position "for the foreseeable future." Council's evidence through Mr O'Rourke was that he considered the applicant's request to hold open her role for 12 months, however the decision was made to proceed with the termination because the applicant's substantive position was important, and it needed to be filled permanently. There is no reason for the Commission would disbelieve that evidence. Was the dismissal otherwise harsh? 1. I have considered the applicant's age and personal circumstances, including her illness and her length of service. The applicant's performance was not called into question in these proceedings. She has valuable skills that could be deployed into a range of working environments. Indeed, the applicant secured employment shortly after her dismissal, although neither party adduced evidence in respect of her remuneration since the termination of her employment. The dismissal has clearly had a detrimental impact on the applicant. However, I have decided that the termination of the applicant's employment was not harsh when the overall context of the circumstances is considered. Conclusion 1. The termination of the applicant's employment was not harsh, unjust or unreasonable. The applicant was dismissed for a valid reason, namely her incapacity to perform the inherent requirements of her role, after a fair and reasonable process was undertaken by Council. Council engaged meaningfully in attempting to provide her with suitable duties and I have found the applicant's criticisms of the actions and inactions of Ms Jackson, Mr O'Rourke, and Mr Hollands to be without foundation. There was no procedural unfairness in the dismissal as Council gave the applicant an opportunity to be heard in respect of her opposition to her dismissal and considered her response before deciding to proceed with the termination of her employment. For these reasons, I have decided that the application must be dismissed. Orders 1. The Commission makes the following order: 1. The application in 2022/210851 is dismissed. Janine Webster Commissioner ********** Amendments 07 December 2022 - Correct decision published 14 December 2022 - Amended Ms O'Rourke to Mr O'Rourke in paragraphs 41, 44 & 70. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022