Dismissal 'fanciful, illogical and ill-considered'

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Dismissal 'fanciful, illogical and ill-considered'

An employer's reason for dismissing a cleaner on sick leave was "intemperate, illogical and devoid of compassion", the Fair Work Commission has ruled.

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An employer's reason for dismissing a cleaner on sick leave was "intemperate, illogical and devoid of compassion", the Fair Work Commission has ruled.

Veronica Bennett was recovering from surgery when her employer deemed her no longer fit to perform the inherent requirements of her position. It had no medical advice to support this decision.

The Commissions said the case would "join the ranks of those elite few which forever remain ignominously memorable".

Background


Ms Bennett had worked for Joss Facility Management for about 5½ years. She was engaged on a permanent part-time basis and primarily worked as a cleaner at a school.

In 2014 she required foot surgery and took about 10 weeks' unpaid sick leave.

In August 2016 she again took unpaid sick leave for surgery on her other foot. However, this operation was more complex and there was a longer recovery period.

Ms Bennett provided ongoing medical certificates from her treating doctor advising that she was unfit for work for various fixed periods of time.

In December, the employer's return to work coordinator, Mr Cusack, asked her to complete a Functional Job Description. Her treating doctor did this in January and also provided a further certificate stating she would be unfit for work until 13 February.

Mr Cusack contacted her again on 16 January. She told him she had a doctor's appointment on February 10 and that she expected some clarity then on a return to work date.

On 6 February the company's injury department manager and internal legal counsel, Fleur Thompson phoned Ms Bennett. After deciding Ms Bennett could no longer perform the inherent requirements of her position, Ms Thompson advised her that her employment was terminated.

The following day Ms Bennett received a letter stating she had been "terminated effective immediately due to you being unable to undertake the inherent requirements of your position as a cleaner".

Three days later, Ms Bennett attended her sceduled doctor's appointment and was given a certificate of fitness to resume her duties from February 14.

Arguments  


Ms Bennett was represented by Mr Pararajasingham, from the United Voice union.

He submitted that:
  • there was no valid reason for the dismissal
  • Ms Bennett had not been properly notified of any purported reason or given an opportunity to respond,
  • the dismissal was particularly harsh.
He said Ms Thompson had made her own medical determination, rather than wait for the outcome of the 10 Feb review. That decision, he said, was "premature and ultimately proven to be incorrect".

Mr Pararajasingham said the employer also had "absolutely no regard for procedural requirements".

It was also pointed out to the Commission that the company had about 800 full-time employees and dedicated HR staff.

Employer's argument


The employer was represented by Ms Thompson, who told the Commission she had "extensive experience in matters of human relations and was extremely aware of obligations and legislation requirements in matters such as these".

She maintained the company was only required to keep Ms Bennett's position open for three months, after which this obligation only extended to an employee who was absent from work on pay.

Ms Thompson said the employer had "no alternative but to terminate the applicant's employment after it had reviewed the medical history and obtained an understanding of the applicant's current medical position."

Ruling 


Commissioner Cambridge disagreed, saying: "the capricious falsity of the employer's decision was blatantly exposed by the medical clearance to return to work provided four days after the dismissal. There was no explanation provided for the employer's extraordinarily hasty and plainly erroneous decision".

He said the reason for the dismissal was "erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical,intemperate and devoid of compassion."

The Commissioner said the dismissal involved "very regrettable procedural deficiencies" whereby Ms Bennett was not given any opportunity to respond and "was plainly denied natural justice".

He also noted that "advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducts with the perfunctory dispassion of tossing out a dirty rag."

The Commissioner concluded reinstatement was appropriate. "I have formed the view that an injustice of the highest order would stand if the applicant was not provided with the remedy that she has earnestly sought".

Orders for reinstatement to follow.

Bennett v Colin Joss & Co P/L t/a Joss Facility Management U2017/1880 [2017] FWC 3669
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