Published 21 March 2017
Sao Duarte v The Paraplegic & Quadriplegic Association of NSW
The Fair Work Commission has recently upheld the decision of an employer to terminate an employee who was unable to meet the inherent requirements of her position, but criticised the employer’s HR manager for failing to adequately investigate her bullying claim.
In a recent case, Duarte v The Paraplegic & Quadriplegic Association of NSW  FWC 175, the Fair Work Commission upheld an employer’s decision to terminate an employment contract based on Ms Duarte’s inability to perform the “inherent requirements” of her two positions.
Ms Duarte commenced employment with the Paraplegic and Quadriplegic Association of NSW (ParaQuad) on 25 June 2009 as a Personal Care Assistant. On 2 September 2011, she acquired additional duties as an After Hours Coordinator.
Ms Duarte claimed that in 2013 or 2014, complaints had been made about her behaviour at work and she was having difficulties with her supervisor. Around 7 December 2014, Ms Duarte claimed she experienced “numbness around her mouth, dizziness, body aches and general sickness”, however subsequent tests did not identify any problems.
On 21 March 2016, Ms Duarte sent an email to the CEO of ParaQuad and stated that her work performance and health had been adversely affected by events that occurred between 8 December 2015 and 6 January 2016 involving other staff members. The CEO informed her that he would monitor the situation.
On 21 April 2016, the HR manager sent Ms Duarte an email requiring her attendance at a fact finding meeting on 28 April 2016 in regards to allegations that she had altered a client file without authorisation. Ms Duarte forwarded the email to the CEO and told him she was being “incriminate[d]”. He responded the following day, requesting she discuss her concerns with her immediate supervisor.
The fact finding meeting went ahead on 28 April 2016.
Ms Duarte was absent from work from 28 April 2016 until her dismissal on 8 August 2016. She was however present on 5 May 2016, where she attended a disciplinary meeting and was issued a written warning for altering a client file without authorisation.
After the 5 May 2016 meeting, Ms Duarte lodged a worker’s compensation claim for her alleged psychological injuries. She had a certificate of capacity certified by her doctor which stated she was unfit for work from 9 May 2016 to 17 May 2016 as she was suffering from “stress, anxiety”. Subsequent WorkCover certificates certified Ms Duarte as unfit for work until 30 June 2016, and a medical certificate certified her as unfit for work until 2 August 2016.
On 20 June 2016, QBE declined Ms Duarte’s workers compensation claim as it decided her employment had not been a substantial, contributing factor to her psychological injury.
On 29 July 2016, Ms Duarte was sent a show cause letter in response to a report produced by her doctor saying she was unable to perform the inherent requirements of her roles. The letter asked Ms Duarte to present evidence as to why her employment should not be terminated for incapacity.
Ms Duarte did not respond to the letter and her employment was terminated on 8 August 2016.
Ms Duarte maintained her psychological injuries were a workplace injury and sought an unfair dismissal remedy as she claimed that ParaQuad had dismissed her without a valid reason. Notably, she highlighted that her doctor had stated her prognosis for recovery was good.
The Fair Work Commission recognised that “employers are usually required to have regard to expert opinion rather than making their own assessment of what is essentially a medical question.” ParaQuad acquired the WorkCover certificates of capacity, medical certificates and doctors reports, most of which supported the opinion of Ms Duarte’s doctor and the Commission concluded “it was not unreasonable for ParaQuad to base their decision on his opinion.”
The Commission noted that although Ms Duarte’s doctor stated it was likely she would start improving over the next few months, he did not say she would be able to return to her duties in this time.
Consequently, the Commission found ParaQuad’s reason for dismissal was founded on medical evidence and as Ms Duarte’s doctor stated reasonable adjustments would not enable her to return to work, there was a valid reason for dismissing Ms Duarte due to incapacity.
However, the Commission criticised the approach taken by the HR manager in investigating Ms Duarte’s allegations of bullying. The HR manager “did not undertake a thorough investigation” and “effectively asserted that there was no bullying or harassment problem because Ms Duarte had not followed the correct grievance process.”
The Commission concluded they did not have enough evidence to determine whether Ms Duarte was bullied. If she had been, and that had led to her incapacity, then “it would certainly be a factor that weighed in favour of her dismissal being considered harsh.”
However, as the Commission was unable to ascertain whether Ms Duarte was bullied, the application for unfair dismissal remedy was dismissed.
Take away points for employers
This case demonstrates that when terminating an employee due to incapacity, employers must base their decision on medical opinion rather than their own assessment.
Employers should be careful to investigate any bullying complaints made by employees rather than ignore the allegations altogether. Failing to investigate a complaint could leave employers liable in unfair dismissal even if they have a valid reason for terminating the employee.