[1] This is an application by Debbie Burdon (the applicant) pursuant to s.643 of the Workplace Relations Act 1996 (the Act) alleging that her termination of employment by Huon Valley Mushrooms (the respondent) was harsh, unjust or unreasonable (s.643(1)(a) of the Act) and that the respondent had breached s.659(2)(f) of the Act by terminating the applicant for a prohibited reason being physical or mental disability.

[2] The respondent filed a Notice of Motion to dismiss the application arguing that there was no termination of employment at the initiative of the employer and that the applicant abandoned her employment.

[3] The respondent did not object to conciliation prior to the jurisdiction argument being determined.

[4] The conciliation conference did not settle the application but did clarify a number of issues surrounding the termination. The parties agreed that the jurisdiction issue should be determined. The respondent maintained the position that there had been no termination at the initiative of the employer therefore the Commission had no jurisdiction to hear and determine the application.

[6] Sworn evidence was presented by the applicant, Kevin Midson, Australian Workers Union Organiser and Ms Kim Angell, Office Manager for the Respondent.

[7] The applicant suffers from a medical condition which can cause dizziness, nausea, balance and hearing problems. The medical condition came to light in an investigation by the Company of complaints made by the applicant against other employees and the respondent. The respondent said it was at that time that it sought further information about the medical condition and required an assurance that the applicant could work safely.

[8] A medical certificate was provided by the applicant for a period of sick leave taken during the week of 13 November, 2006. Attached to the applicant's witness statement was a second certificate dated 3 November, 2006, indicating that the applicant was "fit to continue her present duties."

[9] Despite the content of the medical certificate provided by the applicant's General Practitioner the respondent submitted that it had requested the applicant to attend an independent medical examination to assess her capacity to perform her duties.

[10] By letter dated 29 November, 2006, the respondent informed the applicant that it had a duty of care to her and the other employees to ensure her "ability to work safely within the Company." Further she was advised that a medical appointment had been made for her at the Company's expense. The letter also said "You are asked to attend the appointment as advised and you are hereby informed that if you do not attend, you cannot be employed by the Company from this point forward." [1]

[11] An advice was provided to the applicant on 28 November, 2006, with the details of the medical appointment. The appointment was scheduled for 30 November, 2006.

[12] The applicant testified that she was aware that the respondent had concerns about her medical condition and its effects, if any, on her ability to work safely. However she refused to attend the medical examination arguing that her own doctor had given her a certificate which attested that she was "fit to continue my duties at that time with the mushroom farm." [2]

[13] Other than the comment in the letter dated 29 November, 2006, it was the applicant's sworn oral evidence that no-one from the Company had said to her that she would be sacked, terminated or fired if she did not attend the appointment. [3]

[14] On the 30 November, 2006, the day of the scheduled medical appointment, the applicant testified that she arrived at work and advised the respondent that she did not intend keeping the medical appointment. It was her sworn oral evidence that she could not recall conversations with other employees that morning or whether she was wearing work clothes or not even though she claimed she had turned up "ready for work." [4]

[15] She agreed that she asked for a separation certificate and had said that she wanted to take some time off because her father was sick.

[16] In her sworn statement the applicant said that she attended for work on the morning of 30 November, 2006, and was told that she "could not go to work until she had attended the Doctor's appointment."

[17] She then stated that it was her "expectation that the Company would terminate my employment" due to her refusal to attend the medical appointment. She then asked for a separation certificate and requested that the reason for termination be noted as "disability." [5]

[18] She agreed that there was no letter of termination, the respondent had not told her that her services were terminated and that she was aware that the separation certificate declared she ceased work voluntarily. [6]

[19] Whilst making allowances for the applicant being in an unfamiliar environment her evidence was nonetheless contradictory and inconsistent. She testified she could not remember any significant or relevant details about the morning of the 30 November, 2006, and in a number of instances her oral evidence differed to her sworn statement.

[20] Ms Angell testified that on the morning of 30 November, 2006, the applicant had arrived at work and asked for a separation certificate. Ms Angell said she explained that the certificate would state that the applicant had ceased work voluntarily as "we didn't have a doctor's certificate or anything to confirm that she was unfit for work any other way." [7]

[21] Ms Angell said that the applicant told her "she was refusing to go to the doctor's appointment and so she was leaving." [8]

[22] Ms Angell's evidence was not challenged.

[23] Mr Midson's evidence clarified the purpose of the medical certificate dated 3 November, 2006. He said that in discussions related to other issues surrounding the applicant the respondent had requested a medical clearance for the applicant having become aware of her medical condition. The certificate was provided and the applicant continued to work until she was absent on sick leave; it was on her return from sick leave that the respondent sought further information and arranged the medical appointment for 30 November, 2006.

[24] The clarification of the two medical certificates is not relevant to the issue for consideration; that is whether the applicant left of her own accord or was terminated by the respondent.

[25] The argument pursued on behalf of the applicant that the termination was a constructive dismissal is not supported by the evidence. The applicant agreed that she was requested by the respondent to attend a medical appointment and she understood the reasons why such request was made. She testified in her oral evidence that she made the decision not to attend the medical appointment.

[26] The claim of constructive dismissal it seems relied on the comment in correspondence to the applicant that if she did not attend the medical appointment "……you cannot be employed by the Company from this point forward."

[27] An implied term in the contract of employment is the obligation for an employer to provide safe working conditions for all employees. An employer must take proper steps to avoid risk of injury to its employees. The concern raised by the respondent related to the applicant's medical condition and her ability to work safely.

[28] Accordingly a claim of constructive dismissal must fail.

[29] The applicant ignored the lawful and reasonable direction of the employer to attend a medical appointment and was aware of the consequences. In this matter there is no evidence that there was a termination at the initiative of the employer. The applicant testified that it was her expectation that her employment would be terminated as she had elected not to attend the medical appointment. She agreed that no-one had told her that her employment had been terminated, and that there was no letter or date of termination provided.

[30] The evidence suggests that the applicant resigned from her employment rather than attend the medical appointment, that was the unchallenged evidence of Ms Angell; further, the separation certificate which was sought by the applicant states that she had "ceased work voluntarily." The evidence records that there was some discussion about the content of the separation certificate but the applicant did not challenge that it showed she had ceased work voluntarily. On these points her evidence was unreliable and she claimed not to remember any detail.

[31] I am satisfied on the evidence that the applicant resigned.

[32] The application is dismissed. The Commission lacks jurisdiction to hear and determine the claims by the applicant as there was no termination at the initiative of the employer.

Printed by authority of the Commonwealth Government Printer