Fair Work Commission|2022-05-31

Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) [2022] FWC 1375 (31 May 2022)

[2022] FWC 1375 [Note: An appeal pursuant to s.604 (C2022/3607) was lodged against this decision.]

s.394 - Unfair dismissal

Royal Melbourne Institute of Technology (RMIT University)

Application for an unfair dismissal remedy - failure to follow directions to attend independent medical examinations - valid reason substantiated - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] On 3 January 2022, Dr Amir Reza Zokaei Fard (Applicant) made an application under section 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. The Applicant was employed by the Royal Melbourne Institute of Technology (RMIT University) (Respondent) as an educator when his employment was terminated on 16 December 2021.[1]

[2] The Applicant received a termination letter dated 16 December 2021 advising him that his employment had been terminated effective immediately as a result of "disciplinary action for serious misconduct."[2] The termination of the Applicant's employment followed his failure to comply with directions to attend an Independent Medical Examination on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions).

[3] The Applicant submits that his termination was unfair.

[4] The matter was heard before me on 26 April 2022 and 11 May 2022. The Applicant was self-represented. The Respondent sought permission, under s.596 of the Act to be legally represented. Having weighed the circumstances and considerations in s.596 of the Act, I granted permission to the Respondent to be represented by Mr Ternovski of Counsel noting the complexity of the matter and that representation would enable to the matter to be conducted more efficiently.

[5] Section 396 of the Act requires that I decide four matters before considering the merits of the Applicant's application. There is no dispute between the parties, and I am satisfied of the following matters. Firstly, the Applicant's application was made within the 21-day period required by section 394(2) of the Act. Secondly, the Applicant was a person protected from unfair dismissal, as he had completed the minimum employment period and was covered by the RMIT Vocational Education Workplace Agreement 2019[3] (Agreement) at the time of dismissal. Thirdly, the Respondent is not a small business for the purposes of the Act, and therefore I do not need to consider the Small Business Fair Dismissal Code. Fourthly, the Applicant's dismissal was not a case of genuine redundancy.

[6] It is of assistance at this juncture to set out briefly the largely uncontested background facts in this matter. Where it has been necessary to make a factual finding, I have done so later in the decision. The Applicant commenced employment with the Respondent on 17 July 2001.[4]

[7] Preceding the issuing of directions to the Applicant to attend Independent Medical Examinations on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions) was the Applicant's assessment of students during the Semester 1 2020 teaching period as "not yet competent" across the five subjects he taught in what the Respondent describes as a "remarkable and unprecedented event."[5]

[8] Following this event, a preliminary review report was prepared by Mr Adam Shepherd, Senior Manager Policy and Workplace Relations. The report referenced the comments of a Mr George Zouev, Program Coordinator, Mechanical, Aerospace & Civil Engineering, who stated that these results constituted a "significant anomaly"[6] and that the normal pass rate across these courses was usually in the 60-80% range.

[9] As a result of the review, 57 students later had their marks changed to "competent"[7] by a combination of input from three other teachers, Mr James Ong, Mr Sergei Eljaste and Mr Vettrivel Chinnadurai.[8]

[10] Shortly after the conclusion of the Semester 1 teaching and assessment period on 19 June 2020, the Applicant commenced a period of 20 weeks paid personal leave that lasted from 29 June 2020 to 17 November 2020. The Applicant submitted a series of medical certificates indicating he was unfit for his normal work during this absence.[9]

[11] On 27 August 2020, the Respondent made contact with the Applicant and was advised that "his current mental health issues are primarily to do with workplace issues dated back to semester 1." [10] On 13 November 2020, the Applicant advised the Respondent that he was fit to return to work from the following week.[11]

[12] The Applicant re-commenced teaching on 8 February 2021 at the beginning of the Semester 1, 2021 teaching period.

[13] Upon his return to the workplace in February 2021, the Applicant complained to his supervisor Dr Amita Iyer, Program Manager, Mechanical Aerospace and Civil, about his workload for the semester. Further, the Applicant requested information as to the students whose grades were changed in the preceding teaching period.

[14] The workload complaint resulted in the re-allocation of certain subjects previously taught by the Applicant. These subjects were "re-allocated to other teachers for Semester 1, 2021."[12] During the Respondent's investigation into the workload complaint it became apparent that the Applicant was engaging in the "absurdly inefficient and wasteful"[13] practice of individually printing each student's electronically submitted assignments, annotating and marking them by hand and then scanning the pages back into the online system one page at a time. The Respondent considered this a "performance issue."[14]

[15] Dr Nick Patterson, Associate Director of Future Technologies in the College of Vocational Education, became aware of a number of student complaints about the Applicant over the period of February, March and April 2021.[15] On 19 April 2022, Dr Patterson also met personally with one of the students who he described as being "in tears" whilst making the complaint about the Applicant.[16]

[16] The Respondent found these complaints "troubling"[17] and the volume of them "abnormal."[18] Following these complaints, the Respondent sent several emails[19] to the Applicant outlining the nature of the complaints, asking the Applicant to be clearer with instructions to students, asking the Applicant to provide "effective and accurate feedback"[20] and giving the Applicant a direction "not to continue the printing, handwriting and scanning process any longer."[21]

[17] The Applicant disputed the claims about this teaching methods and stated that the methods proposed by the Respondent would make his work "harder" and "may cause a delay in providing on-time feedback to students."[22]

[18] In email correspondence from Dr Patterson to the Applicant dated 12 April 2022, the Applicant was asked to attend a meeting the purpose of which was to discuss "very serious concerns raised by students."[23] The Applicant was invited to attend the meeting with a support person.

[19] The meeting took place on 29 April 2021 (the 29 April meeting) by Microsoft Teams and was attended by Dr Patterson, Mr Gus Lancaster (Principal Advisor, Employee Relations), Dr Iyer, the Applicant and his wife (who attended as a support person).

[20] I have re-produced Dr Patterson's account of this meeting which correlates to the contemporaneous notes[24] in evidence, of Mr Lancaster, taken in the meeting:

"During the meeting, Dr Zokaei Fard was shown a document entitled "Chronology of student complaints against Amir R. Zokaei‐Fard - First Semester 2021". It set out 12 student complaints against Dr Zokaei Fard but redacted the names of the students. The student names were redacted to protect the students. After my meeting with the student who had been in tears, I recall that I was particularly mindful to ensure the students' names weren't shared to protect their privacy. I did not want them to experience any confrontation with Dr Zokaei Fard which may cause further distress, particularly when I was aware one student was seeking medical treatment due to their experience with Dr Zokaei Fard.

In addition to showing Dr Zokaei Fard the complaints chronology document, I also went through some of the complaints in detail. He had an opportunity to respond to the complaints. He refused to accept any responsibility and said words to the effect that the students and RMIT are all against him.

I recall that during that meeting Dr Zokaei Fard appeared to be very stressed and agitated. At one point, Dr Zokaei Fard stated "When I go to class I am going to war. The students are waiting to kill me. You kill me and they get their free pass (my emphasis added). I found this comment to be extreme. I have not heard anything like it in my teaching career. It is very troubling to hear a teacher use this type of language to describe their relationship with their students.

At the end of the meeting, I said that we would prepare a Performance Improvement Plan for Dr Zokaei Fard."[25]

[21] The Applicant does not seriously contest the substance of the meeting, save that he states that the complaints document was only "briefly scrolled through,"[26] noting his evidence at hearing that he was shown the document for at least 10 minutes. The Applicant also disputed the number of complaints made against him.

[22] On 29 April 2021, Mr Lancaster sent correspondence to Ms Sandra Capper (Senior Manager Health, Safety and Wellbeing for the Respondent), expressing concerns as to the Applicant's responses during the meeting and seeking Ms Capper's views as to "HWS risk management."[27]

[23] Following the meeting, Dr Patterson emailed the Applicant on 30 April 2021, confirming the Respondent's concerns with the Applicant's "responses" during the 29 April 2021 meeting and placing the Applicant on a formal performance improvement plan (the PIP), in accordance with the Respondent's "Workplace Behaviour Policy and the Managing Performance Procedure." Further, the Applicant was asked in that correspondence to contact Mr George Zouev, by no later than close of business on 3 May 2021, to discuss the process of assessment and marking.[28]

[24] Shortly after the meeting on 29 April 2021 the Applicant commenced a second period of paid personal leave that began on 3 May 2021 and continued until the termination of his employment on 16 December 2021.[29]

[25] The Applicant submitted a series of medical certificates in relation to the second period of leave from 2 May 2021 to 23 December 2021, of a generalised nature stating the Applicant was unfit for work for the relevant period.

[26] On 8 May 2021, the Applicant's daughter emailed a medical certificate on behalf of her father and stated that:

"Dr Zokaei Fard's medical practitioner has advised him not to have any direct contact with RMIT during the period of this certificate. Accordingly as his daughter, I am sending this certificate to you on his behalf."[30]

[27] On 10 May 2021, Mr Lancaster called the Applicant's daughter to ascertain who the Applicant's contact person with the Respondent would be and confirming the Respondent's normal process of requesting medical evidence from the treating practitioner of an employee absent from work as a result of illness or injury for more than 2 weeks.[31] The Respondent submits this process was undertaken to better understand the employee's fitness for work and any adjustments on how best to plan for their return to work.

[28] The Applicant's daughter responded to the requests above via email on 11 May 2021:

"As per your request, I asked my father if he wanted me to act as his representative to communicate with you. He has not given me his consent to do so.

You mentioned that the medical certificate did not note he was advised not to have direct contact with RMIT. Accordingly at his next appointment he will seek written confirmation of this. If this is available, I will send it to you on his behalf."[32]

[29] On 14 May 2021, Ms Capper emailed the Applicant seeking his permission to contact his treating practitioner to "advise of the University's process and to seek their medical opinion in the development of a workplan" and attaching an Authority to Obtain Medical Information form.[33]

[30] The Applicant sent the Respondent a medical certificate dated 20 May 2021 from his General Practitioner, Dr Kevin Rose that stated "due to his present medical condition, and whilst he is taking certified sick leave, [the Applicant] should have no contact with RMIT University."[34]

[31] On 21 May 2021, Mr Lancaster was informed by Ms Capper that the Applicant had failed to respond to the requests made in the correspondence of 14 May 2021 or return a completed authority to obtain medical information form.[35]

[32] Following the lack of response from the Applicant, Ms Emma Blee, Director of Health, Safety & Wellbeing "decided to direct Dr Zokaei Fard to attend an IME"[36] on or about 3 June 2021. The reason given for making direction was:

"I formed the view that Dr Zokaei Fard's "war" comment, set out above, warranted an IME with a psychiatrist due to my concerns for the safety of Dr Zokaei Fard himself and RMIT staff and students. RMIT has a duty of care under occupational health and safety legislation to understand the risk associated with such comments. Additionally, I formed the view that Dr Zokaei Fard's extended absence from work, inadequate information in his medical certificates and failure to provide RMIT with consent to contact his treating practitioner for further information, presented multiple circumstances in which it is appropriate to request an IME in accordance with the IME Guidance document. Again, due to the "war" comment and other information set out above, it appeared that the most likely cause of Dr Zokaei Fard's illness was mental health related and hence a psychiatrist was the appropriate specialist."[37]

[33] The direction to attend the first IME was given in a letter dated 29 June 2021 and was sent to the Applicant via email and post on 1 July 2021. The direction contained appointment details for a medical examination to take place on 19 July 2021.[38] The date of the examination was amended due to COVID-19 restrictions and this was relayed to the Applicant in a letter of 19 July 2021.[39] This letter was couriered to the house of the Applicant on 20 July 2021.[40] The new appointment was scheduled to take place on 28 July 2021.

[34] The Respondent was informed on 28 July 2021 that the Applicant did not attend the IME appointment scheduled for that day. I note that no stay-at-home order pursuant to COVID-19 restrictions applied on this date.[41]

[35] Prior to the 28 July 2021 appointment, the Applicant sent a letter to the Respondent dated 18 July 2021 in which he states that he did "not see any reason" to attend an IME and offered to ask his GP to provide the Respondent information that "does not breach my privacy entitlements."[42] The Applicant also made further claims that the performance management process outlined above was defective and that representatives of the Respondent had tried to "humiliate [him], discredit and damage [his] reputation."[43] The Applicant sent a further letter to Ms Blee dated 1 August 2021 in which the Applicant, amongst other matters, expressed his "disappointment" in how the matter had been conducted thus far and making a series of complaints against Dr Amita Iyer, Dr Nick Patterson and Mr Gus Lancaster.[44] The Applicant's complaints were referred to Mr Shepherd for investigation.

[36] On 25 August 2021, the Applicant was again directed by the Respondent to attend an IME. The direction was sent by email and couriered to the Applicant's home.[45] The new IME appointment was scheduled for 13 September 2021 (the 2nd IME request). The Respondent informed the Applicant in this correspondence that the Respondent had incurred costs of $1,089 including GST due to the Applicant's failure to attend the IME and accordingly that the Applicant's conduct in failing to attend the appointment had been referred to the Respondent's workplace relations team for investigation.[46] The Applicant was again reminded that failure to comply with the Respondent's lawful and reasonable direction may lead to the termination of his employment.

[37] The Respondent was informed on 13 September 2021 that the Applicant did not attend the IME appointment scheduled for that day.[47]

[38] The Applicant sent further correspondence to the Respondent dated 27 August 2021 in which he stated that he had not been provided with a "legal basis"[48] to attend an IME, confirmed again his intention not to attend an IME and asking the Respondent not to book any additional IMEs without his "approval."[49]

[39] The Respondent replied to this correspondence in a letter dated 10 September 2021.[50] In this correspondence the Respondent re-stated the direction to attend the IME scheduled for 13 September 2021 and reminded the Applicant of the potential consequences for failing to attend the IME. As to the Applicant's offer to provide medical information from his own doctor, the Respondent asked the Applicant to provide any additional medical information to Dr Redmond when he attended the second IME.[51]

[40] The Applicant responded to the Respondent's letter of 10 September 2021 by repeating claims about a lack of legal basis to direct him to attend the IME, raising further privacy concerns and again asking the Respondent not to book IMEs without his approval. The Applicant also stated "please be aware that this letter is the last communication I have with you"[52] and indicated that he did not expect a response to the letter and requested not to be contacted further by Ms Blee.

[41] The Preliminary Review Report prepared by Mr Shepherd concerning the Applicant's complaints of 1 August 2021 was released on 29 September 2021 and was sent to the Applicant's wife on 29 September 2021 by Mr Shepherd.[53]

[42] On 11 October 2021, the Applicant was directed a third time by the Respondent to attend an IME (the 3rd IME) on 13 October 2021. The direction was contained in correspondence delivered by courier to the Applicant's home.[54]

[43] The Applicant did not attend the 3rd IME appointment scheduled for 13 October 2021.

[44] On 22 October 2022, Mr Lancaster was appointed investigator into the Applicant's failings to attend the IMEs.[55]

[45] On 22 October 2022, the Respondent sent a letter to the Applicant, by courier, notifying him of the initiation of a workplace investigation (the October workplace investigation) as to his failure to comply with the Respondent's lawful and reasonable directions to attend three IMEs and the potential consequences of his refusal to follow the Respondent's lawful and reasonable directions, including termination of his employment. Due to the Victorian Government's COVID-19 restrictions at the time, the Applicant was asked to attend a Microsoft Teams meeting at 10:00AM on 27 October 2021.[56]

[46] Following this correspondence, the Respondent received a letter from the Applicant's wife, Ms Abedkhah, dated 26 October 2021. The letter repeated allegations raised in previous correspondence as well as the following passage:

"I would like to remind you that Amir is in a certified sick leave and his doctor requested him to avoid having a direct contact with the RMIT until he returns to work. So, as l informed Blee last week (see below this email) Amir does not read any letter from the RMIT unless I have read it before and I would pass the information to him when I find it is appropriate (my emphasis added)."[57]

[47] The Respondent was unable to reach the Applicant on 27 October 2021 despite multiple attempts to contact him via phone and Microsoft Teams.[58]

[48] On 28 October 2021, the Respondent couriered[59] a letter to the Applicant concerning his non-attendance at the meeting on 27 October 2021 and giving the Applicant until 3 November 2021 to provide a written response to the allegations that were the subject of the October 2021 workplace investigation referred to above at paragraph 45.

[49] In his report of 6 December 2021, Mr Lancaster concluded that the Applicant had failed to follow the Respondent's lawful and reasonable directions to attend IMEs on 28 July, 13 September and 13 October 2021 and that this conduct constituted serious misconduct.

[50] The Respondent emailed and couriered a letter to the Applicant on 9 December 2021 outlining the findings of the investigation and giving the Applicant until 5:00pm Tuesday, 14 December 2021 to respond to the Respondent concerning the findings.[60]

[51] Dr Patterson of the Respondent received a response from the Applicant on 14 December 2021. The nine-page letter raises issues dealt with previously regarding the Semester 1, 2020 failing of students, the previous mentioned allegations of retribution, questioning of the legal basis for directing the IMEs amongst other matters. The Applicant concludes that "I am willing to attend the IME when I am ready to return to work after providing RMIT with my fitness certificate."[61]

[52] On 16 December 2021, a termination letter was couriered to the Applicant.[62] An excerpt of the termination letter is set out below:

Disciplinary Action for Serious Misconduct - Dismissal

I refer to the notification of workplace investigation letter dated 22 October 2021 and the investigation findings provided to you by letter dated 9 December 2021, which was couriered to your home address.

You were provided the opportunity to put forward any information you wished me to take into account in mitigation of the proposed disciplinary outcome. I requested you provided that information by 5pm on Tuesday 14 December 2021. I have received your written response and have considered the information you have put forward. I am writing to notify you of my final decision in relation to the proposed disciplinary action set out in my letter to you on 9 December 2021.

I have considered all the information available to me and have made the decision to terminate your employment effective immediately, with payment provided to you in lieu of your notice period of 5 weeks.

[53] On 3 January 2022, the Applicant lodged his unfair dismissal application.

[54] The Applicant did not provide a witness statement however gave short oral submissions at the hearing on 26 April 2022.

[55] The Respondent relied on witness statements from:

Dr Nick Paterson, Associate Director of Future Technologies in the College of Vocational Education of the Respondent;

Ms Emma Blee, Director of Health, Safety & Wellbeing in the Human Resources department of the Respondent; and

Mr Gus Lancaster, Principal Advisor Employee Relations of the Respondent.

[56] Each of the witnesses was subject to cross examination.

[57] It is a well-established at legal principle that an employer may give a lawful and reasonable direction, and an employee is obliged to obey the employer's lawful and reasonable direction.[64]

[58] In Blackadder v Ramsey[65] Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work. I have produced part of his honour's findings below:

"[67] An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AW A, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s l 70VR(2) of the Act).

[68] It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/ or lift.

[69] The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450."[66]

[59] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in section 387. I will address each of these matters in turn below.

[60] The Act directs consideration of whether there was a valid reason for the dismissal related to the person's capacity or conduct. A valid reason is one that is "sound, defensible or well-founded" and not "capricious, fanciful, spiteful or prejudiced."[67]

[61] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[68] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[69] A failure to follow an employer's lawful and reasonable direction can constitute a valid reason for dismissal.[70]

[62] The Respondent submits that the IME directions were both lawful at common law and reasonable and that the Applicant had engaged in "serious misconduct"[71] as a result of "wilful breaches of lawful directions and these breaches were inconsistent with the continuation of the employment relationship."[72]

[63] The Respondent further submits that:

"a. Dr Zokaei Fard deliberately chose not to attend the IMEs.

b. Dr Zokaei Fard was repeatedly warned that failure to comply with the IME directions can constitute serious misconduct.

c. The Shepherd Report ought to have dispelled any doubts that Dr Zokaei Fard might have otherwise had as to whether the directions were lawful and reasonable.

d. Dr Zokaei Fard did not provide any reasonable excuse for failing to comply with the directions.

e. Dr Zokaei Fard failed to comply with the IME directions on three separate occasions over a period of 11 weeks.

f. Dr Zokaei Fard's failure to comply with the IME directions left RMIT in an untenable position where:

i. Dr Zokaei Fard had made his disturbing "war" comment, yet RMIT was unable to properly investigate his mental state to determine if he is a risk to himself or to RMIT students or staff.

ii. Dr Zokaei Fard had, by the time of his termination, been on paid sick leave for an aggregate period of over a year out of the preceding 18 months. The second period of absence alone was in excess of 32 weeks. His daughter's comments suggested that the two absences were related. Yet Dr Zokaei Fard continued to supply RMIT with medical certificates that revealed nothing at all about his condition. RMIT had no information about his medical condition - no diagnosis, no prognosis, no independent verification of whether he is fit for work, and no indication as to whether he will ever become fit for work and if so when that might be."[73] And that;

Dr Zokaei Fard's submissions in his final letter to Dr Patterson on 14 December 2021 did not mitigate that misconduct or otherwise make dismissal unjustified. The only thing substantively new in that letter was his offer to attend an IME "when [he is] ready to return to work after providing RMIT with [his] fitness certificate."

[64] I note that the Applicant raises certain matters in his written submissions under a section marked Procedural Unfairness (Section 387- Clause (h)). In coming to my decision, and in light of the Applicant's status as a self-represented litigant, particularly in circumstances where the Respondent was represented by Counsel, I consider it appropriate to consider and examine aspects of his submissions in relation to s387(a). For reasons of efficiency, I have not reproduced the entirety of the Applicant's detailed submissions.

[65] In essence, I note that the Applicant disputes that the IME directions were lawful and reasonable.[74] The Applicant submits that the Respondent did not have a genuine need for issuing the IME directions. In support of his submissions, the Applicant posits a number of matters including that the Respondent failed to justify its request for the IME directions, including by providing the legal basis for the requests, that it did not ask the Applicant for medical information before directing the Applicant to attend an IME, that it did not specifically request the Applicant for a "prognosis" and that the Respondent "could not give a rational and acceptable reason for selecting a physiatrist for [his] independent medical examination."[75]

[66] Further I note that the Applicant disputes the genuineness of the issuing of the IME directions by Ms Blee and contends that it is part of a "premeditated plan"[76] to terminate the Applicant's employment.

[67] In the recent decision in Roman v Mercy Hospitals Victoria Ltd (Roman)[77], Deputy President Colman discussed the concept of lawful and reasonable directions as follows:

"Implied into the contract of employment is an obligation of an employee to obey the employer's lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the 'general rule ... that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character' (see Commissioner for Government Transport v Royall [1966] HCA 80; (1966) 116 CLR 314 at 322, per Kitto J)."[78]

[68] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. I am satisfied that the request for the Applicant to attend an IME on 28 July 2021, 13 September 2021 and 13 October 2021, involved no illegality, and fell within the scope of the contract of employment. I accept that the IME directions issued on 28 July 2021, 13 September 2021 and 13 October 2021 were lawful directions. The Applicant had been absent from work on sick leave for an extended period. The Direction to attend an IME was essential to the Respondent's ability to inform itself as to the Applicant's fitness for work and, in light of my comments below, was necessary to investigate the Applicant's mental state given the concerning comments made by the Applicant during the meeting of 29 April 2021.

[69] Ms Blee gave evidence that following the Applicant's "war" and "kill" comments, "RMIT has a duty of care under occupational health and safety legislation to understand the risk associated with such comments." I observe that Ms Blee impressed me as a forthright and candid witness who gave her evidence in a direct and cogent manner consistent with her witness statement and I have accepted this evidence. Further, I note the Respondent's responsibilities to ensure a safe workplace for students, educators and the Applicant. I have had regard to the obligations placed on the Respondent by the Occupational Health and Safety Act 2004 (Vic) to provide a workplace that is "safe and without risks to health", to "monitor the health of employees" and to ensure that "persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer."[79] I have had regard to the comments of Madgwick J in Blackadder that an employer "should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness."[80] It follows that, I reject the Applicant's assertions that the request for an IME was motivated by reasons other than those proffered by the Respondent.

[70] Having determined that the direction to attend an IME was lawful, I need to be satisfied that it was reasonable and, if it was reasonable, determine whether it was a valid reason for termination. I note that the Applicant does not seriously contest his statement made to Mr Lancaster, Dr Patterson and Dr Iyer in the meeting of 29 April 2021 that "when I go to class I am going to war. The students are waiting to kill me. You kill me and they get their free pass."[81] It is instructive that these comments were made during a formal performance meeting at a time when the Applicant was aware that the Respondent was concerned with his performance. I do not accept what appeared to be attempts at hearing by the Applicant to mitigate the seriousness of the comments by providing "context". I agree with Dr Patterson's assessment that the comments made by the Applicant during the 29 April 2021 were "extreme" and "troubling."[82]

[71] I have also had regard to the fact that:

• The Applicant had been on paid personal leave for significant periods. First from 29 June 2020 to 17 November 2020[83], lasting some 20 weeks, and the second, commencing 3 May 2021 until 28 July 2021 (the first IME) and continuing to the date of his termination on 16 December 2021, lasting some 32 weeks.[84] I note that during these substantial periods of paid leave, the Applicant only provided generalised medical certificates.

• Aside from the 27 August 2020 file note of a conversation between RMIT and the Applicant, in which the Applicant stated he had "mental health issues,"[85] the Applicant never provided the Respondent with a diagnosis or a prognosis as to his medical condition or fitness to work.[86] I note that the balance of the medical certificates supplied by the Applicant were of a general nature, certifying simply that the Applicant was "unfit for normal work".

There was no evidence that the Applicant was unaware of the Respondent's requests that he attend the IMEs on 28 July 2021 and 13 September 2021 (the first and second IME). As to the request to attend an appointment on 13 October 2021 (the third IME direction), I reject the Applicant's assertion that he was not aware of the contents of the couriered letter from Ms Blee as it was delivered to his wife, Ms Abedkhah, and that the Applicant's wife did not inform him of the contents of the letter nor his wife's response to the letter on 13 October 2021. In this regard, I note the evidence before me that the courier delivering the correspondence produced a delivery docket stating, "signed by Amir" at 1:35PM on 11 October 2021 and a photograph of a male person holding the envelope. During cross examination, the Applicant concedes that the image was of himself holding the letter but stated that he "didn't check everything" and that he knew at the time that the letter was "probably related to the IME process." In any event, I note that the Applicant was aware from Ms Capper's letter, sent later that day, that Ms Blee's letter contained the third IME request.

• I note the Applicant's assertion that his General Practitioner, Dr Kevin Rose, wrote on the medical certificate dated 20 May 2021, that the Applicant "should have no contact with RMIT University."[87] The Applicant did not produce any further medical evidence from Dr Rose aside from this limited statement. I agree with the Respondent that the Applicant cannot remain on sick leave for a lengthy period, provide generalised information as to an unspecified medical condition and refuse to communicate with the Respondent, or alternatively choose to communicate selectively. On the material before me, it is apparent that the Applicant was capable of corresponding with the Respondent whilst on paid sick leave as evidenced by his lengthy correspondence to the Respondent on 18 July 2021 and 1 August 2021.

There is no evidence to suggest that the Applicant was given insufficient notice to attend the IMEs. On the evidence before me, there was a series of communications between the Applicant and Respondent from the period 1 July 2021 to 11 October 2021 during which the Respondent made repeated requests for the Applicant to attend an IME in an effort to gather appropriate information as to the Applicant's medical status and ability to return to work.

[72] I note the Applicant's assertions that he authorised the Respondent to contact his medical practitioner to obtain medical information as to his medical condition. I have carefully reviewed the correspondence between the parties in evidence before me including the evidence of Ms Blee as to the correspondence sent to her dated 18 July 2021.[88] I am of the view that the Applicant's offers to ask his medical practitioner to provide information are made subject to significant caveat in the form of not breaching his "privacy entitlements". It is apparent from the correspondence that the Applicant was of the view that it was for him to determine those matters that were in breach of his "privacy entitlements" and those that were not. I disagree with the Applicant's characterisation that he consented to his general practitioner providing medical information about his condition.

[73] I reject the Applicant's assertions to the effect that he could not comply with the IME requests because the Respondent did not provide a MLCOA Fitness For Duty Consent Form (MLCOA form) with each of the IME requests. With respect to this submission, I accept Ms Blee's evidence that a failure to receive the MLCOA form in each correspondence would not be an acceptable reason to not attend an IME.[89] I accept that the MLCOA form was sent to the Applicant with correspondence dated 1 July 2021, 10 September 2021 and 11 October 2021.[90]

[74] I note the Applicant's assertions that the Shepard report supports his contention that the request for an IME was unlawful. I disagree with the Applicant's characterisation of the findings of the report with respect to this matter. In any event, the issue for me is whether there is a valid reason for termination.

[75] As to the Applicant's assertions that he was not provided with the legal basis for the IME directions, I note that Ms Blee and Mr Lancaster corresponded with the Applicant repeatedly stating that the IME directions were lawful and reasonable in accordance with the common law and the terms and conditions of the Applicant's contract of employment. Further, Ms Blee sent correspondence to the Applicant on 10 September 2021 in which she "strongly encouraged" the Applicant to seek advice from a lawyer or his union if he was under the "misapprehension" that the Respondent did not have the ability to direct the Applicant to attend an IME.[91]

[76] On the basis of the above, I find that the IME directions were both lawful and reasonable and in the circumstances before me, the Applicant's failure to attend is a sound and defensible reason for the termination of the Applicant's employment. I am satisfied there is a valid reason for termination. This weighs against a finding that the dismissal was unfair.

Section 387(b) - Notification of reason for dismissal

[77] The reason for the termination of the Applicant's employment was provided in the correspondence sent to the Applicant dated 9 December 2021.

[78] On the basis of the material before me, I find that the Applicant was notified of the reason for dismissal before his dismissal. This weighs against a finding that the dismissal was unfair.

[79] The Respondent provided the Applicant with an opportunity to respond to the allegations during and following the October workplace investigation. The Applicant was also offered, and accepted, a further opportunity to respond to the 9 December 2021 letter that provided the findings of the October workplace investigation. The Applicant provided his response in correspondence dated 14 December 2021.

[80] I am therefore satisfied that the Applicant was given a reasonable opportunity to respond. This weighs against a finding that the dismissal was unfair.

Section 387(d) - Unreasonable refusal by the employer to allow a support person

[81] I am satisfied that there was no refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal.

[82] I note that in the letter of 22 October 2021, that informed the Applicant of the commencement of the October workplace investigation and directed him to attend an interview with Mr Lancaster, the Respondent stated that "you are entitled to have a support person or union representative accompany you to the interview. Please notify the Investigator via email or telephone prior to the interview if you intend to have a support person or union representative join the videoconference."[92]

[83] Mr Lancaster repeated the invitation in correspondence to the Applicant on 25 October 2021.[93] This weighs against a finding that the dismissal was unfair.

Section 387(e) - Warning about unsatisfactory performance before dismissal

[84] In this instance the reason for dismissal does not relate to unsatisfactory performance. and as such section 387(e) is not relevant.

Section 387(f)(g) - Size of enterprise and absence of dedicated human resource management specialists/expertise likely to impact on procedures followed

[85] This is a large employer with dedicated human resource management specialists. I have considered the submissions of the parties and consider this a neutral factor in this case.

[86] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be "harsh, unjust or unreasonable", notwithstanding the finding that there is a valid reason for the dismissal.[94] The gravity of an employee's conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant's claim that the dismissal was harsh, unjust or unreasonable.[95]

[87] I have taken into account all the submissions put by both parties as to "other relevant matters" including the matters set out below, noting my earlier comments as to the Applicant's status as a self-represented individual.

Personal & economic situation and length of service

[88] I have taken into account the impact of the termination on the Applicant's life, the stress caused to the Applicant by the termination of his employment, the Applicant's length of service, which was considerable at more than 20 years. I have also given consideration to the Applicant's age and I note that whilst the consequences of the dismissal for the Applicant and his family are significant, this must be balanced against all the other circumstances.

Acts of employees of the Respondent and the genuineness of the Respondent's request for an IME

[89] The Applicant has contended throughout the proceedings that, in essence, a series of actions have been taken by employees of the Respondent to concoct a "premeditated plan for [his] dismissal"[96] in which certain employees of the Respondent acted in concert to bring about the Applicant's termination and exact "retribution" on the Applicant.[97] For efficiencies sake, I have not re-produced the Applicant's submissions with respect to these allegations.

[90] On the basis of the material before me, I find that the Applicant's allegations are unfounded. There is no foundation for the suggestion that employees of the Respondent acted in concert to bring about the termination of the Applicant's employment and that the request for an IME was motivated by reasons other than those proffered by the Respondent.

The Respondent's breach of the IME Guidance policy

[91] The Applicant contends that the Respondent has not complied with the University's IME Guidance policy (the IME guidelines)[98] in a number of respects with regard to the IME process. Again, for the sake of efficiency, I do not re-produce the Applicant's submissions. The Respondent disputes the submission and states that in any event the IME guideline was, as its name suggests, a guideline and does not form part of the Respondent's suite of formal policies.

[92] There is insufficient material before me to make a conclusive finding as to the legal status of the guideline. That said, in the circumstances before me, I find that any failure by the Respondent to follow the IME guideline does not impact my overall finding that the Applicant's termination was not unfair. In coming to this decision, I note that the the alleged non-compliance with the guideline, even if made out, is of little or no significance. I have made findings that the Respondent was entitled to give the IME directions at common law without relying on policies. As such, the IME directions were lawful. Further, I have found that the IME directions were reasonable and that there was a valid reason for termination.

[93] The Applicant was repeatedly warned that his failure to comply with the IME directions may lead to disciplinary action up to and including dismissal. Regrettably, the Applicant chose the course of conduct which was to refuse to comply with the Respondent's lawful and reasonable directives.

[94] I have found that the process adopted by the Respondent was fair. The Applicant was given every opportunity to respond to the Respondent's request for an IME by attending any one of the three appointments made by the Respondent with Dr Redmond. In those circumstances, I find that any purported deficiencies in the Respondent's failure to follow the IME guideline do not render the dismissal harsh, unjust or unreasonable.

[95] I have considered the comprehensive material before me and found there was a valid reason for termination and I am satisfied that the Applicant was afforded procedural fairness during the disciplinary process. Having regard to the totality of the matter, I am satisfied in all the circumstances that the Applicant's dismissal was not disproportionate to the gravity of his conduct, nor was it harsh in any other sense.

[96] I am satisfied that the direction of the Respondent for the Applicant to attend an IME was a lawful and reasonable direction and that the Applicant failed to comply with a lawful and reasonable directive of the Respondent and that there was a valid reason for termination. I am satisfied that the Respondent communicated the reason for termination to the Applicant and that he was given an opportunity to respond. I have considered the other factors identified in section 387 and have considered them neutral. I have dealt with the matters raised by the Applicant under section 387(h) and found that any procedural defects in the Respondent's failure to follow the IME guideline did not provide a compelling reason to find that the Applicant's dismissal was harsh, unjust or unreasonable. I have also considered the Applicant's age, length of service and personal circumstances.

[97] Having considered the material before me and the matters identified in section 387 of the Act, I find that the dismissal of the Applicant was not harsh, unjust and unreasonable.

[1] Attachment GL-46, Statement of Mr Gus Lancaster, 11 April 2022.

[4] Statement of Mr Gus Lancaster, 11 April 2022, [12].

[5] Respondent's outline of submissions, 11 April 2022, [12].

[6] Attachment GL-3, Statement of Mr Gus Lancaster, 11 April 2022.

[7] Statement of Mr Gus Lancaster, 11 April 2022, [16].

[9] Attachment GL-4, Statement of Mr Gus Lancaster, 11 April 2022.

[10] Attachment GL-5, Statement of Mr Gus Lancaster, 11 April 2022.

[11] Attachment GL-4, Statement of Mr Gus Lancaster, 11 April 2022.

[12] Statement of Dr Nick Patterson, 11 April 2022, [16].

[19] Attachment NP-1, Statement of Dr Nick Patterson, 11 April 2022.

[24] See Attachment GL-11, Statement of Mr Gus Lancaster, 11 April 2022.

[25] Statement of Mr Gus Lancaster, 11 April 2022, [28] - [31].

[26] Applicant's submissions in-reply, 18 April 2022, [1.5].

[27] Attachment GL-13, Statement of Mr Gus Lancaster, 11 April 2022.

[28] Attachment NP-3, Statement of Dr Nick Patterson, 11 April 2022.

[29] Statement of Mr Gus Lancaster, 11 April 2022, [57].

[30] Attachment GL-15, Statement of Mr Gus Lancaster, 11 April 2022.

[31] Attachment GL-17, Statement of Mr Gus Lancaster, 11 April 2022.

[32] Attachment GL-15, Statement of Mr Gus Lancaster, 11 April 2022.

[33] Attachment GL-16, Statement of Mr Gus Lancaster, 11 April 2022.

[34] Attachment GL-19, Statement of Mr Gus Lancaster, 11 April 2022.

[35] Statement of Mr Gus Lancaster, 11 April 2022, [67].

[36] Statement of Ms Emma Blee, 11 April 2022, [14].

[37] Statement of Ms Emma Blee, 11 April 2022, [15].

[38] Attachment EB-3, Statement of Ms Emma Blee, 11 April 2022.

[39] Attachment EB-6, Statement of Ms Emma Blee, 11 April 2022.

[40] Statement of Ms Emma Blee, 11 April 2022, [15].

[42] Attachment EB-5, Statement of Ms Emma Blee, 11 April 2022.

[44] Attachment EB-8, Statement of Ms Emma Blee, 11 April 2022.

[45] Statement of Ms Emma Blee, 11 April 2022, [33].

[46] Attachment GL-30, Statement of Mr Gus Lancaster, 11 April 2022.

[47] Statement of Mr Gus Lancaster, 11 April 2022, [95].

[48] Attachment EB-11, Statement of Ms Emma Blee, 11 April 2022

[50] Attachment EB-12, Statement of Ms Emma Blee, 11 April 2022

[52] Attachment EB-13, Statement of Ms Emma Blee, 11 April 2022

[53] Attachment EB-14, Statement of Ms Emma Blee, 11 April 2022

[54] Statement of Ms Emma Blee, 11 April 2022, [41].

[55] Statement of Mr Gus Lancaster, 11 April 2022, [66].

[56] Attachment GL-38, Statement of Mr Gus Lancaster, 11 April 2022.

[57] Attachment GL-40, Statement of Mr Gus Lancaster, 11 April 2022.

[58] Attachment GL-41, Statement of Mr Gus Lancaster, 11 April 2022.

[59] Attachment GL-42, Statement of Mr Gus Lancaster, 11 April 2022.

[60] Attachment GL-44, Statement of Mr Gus Lancaster, 11 April 2022.

[61] Attachment NP-12, Statement of Dr Nick Patterson, 11 April 2022..

[62] Statement of Mr Gus Lancaster, 11 April 2022, [134].

[64] See Australian Telecommunications Commission v Hart [1982] FCA 185; (1982) 65 FLR 41.

[67] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[68] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[70] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601.

[71] Respondent's outline of submissions, 11 April 2022, [73].

[73] Respondent's outline of submissions, 11 April 2022, [73].

[74] Applicant's outline of submissions, 21 March 2022, [29.3].

[75] Applicant's Form F2, 2 January 2022, 12.

[76] Applicant's outline of submissions, 21 March 2022, [25].

Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology

At a glance

Court

Decision date

Source

Judgment (222 paragraphs)

Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) [2022] FWC 1375 (31 May 2022)

Parties

Legislation Cited (2)

Cases Cited (8)