Fair Work Act 2009

s.604 - Appeal of decision

Royal Melbourne Institute of Technology (Respondent University)

Appeal against decision [ [2022] FWC 1375] of Commissioner Cirkovic at Melbourne on 31 May 2022 in matter number U2022/226 - permission to appeal refused.

[1] Dr Amir Reza Zolaei Fard (Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required. The appeal is brought with respect to a decision[1] (Decision) of Commissioner Cirkovic (Commissioner) issued on 31 May 2022.

[2] The Appellant alleged that he was unfairly dismissed from his employment with the Royal Melbourne Institute of Technology (Respondent). The Appellant was dismissed following his failure to comply with multiple directions to attend an independent medical examination (IME) after being absent from work for an aggregate period of over a year in the preceding eighteen months.

[3] This matter was listed for permission to appeal only and directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Respondent filed submissions to be legally represented at the hearing and a Form F53. Both parties later indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.

[4] For the reasons that follow, permission to appeal is refused and the appeal is dismissed.

[5] The Appellant commenced employment with the Respondent on 17 July 2001.[2]

[6] His assessment that an unusually high proportion of a cohort of students he taught during Semester 1 2020 were 'not yet competent' prompted an internal investigation by the Respondent. The students were reassessed by other teachers and 57 students had their marks changed to 'competent'.[3]

[7] Shortly after the conclusion of the Semester 1 teaching and assessment period, the Appellant commenced a period of 20 weeks' paid personal leave that lasted from 29 June 2020 to 17 November 2020. The Appellant submitted a series of medical certificates indicating he was unfit for his normal work during this absence.[4]

[8] On 27 August 2020, the Respondent made contact with the Appellant and was advised that the Appellant's current mental health issues were primarily to do with workplace issues dated back to Semester 1, 2020. On 13 November 2020, the Appellant advised the Respondent that he was fit to return to work from the following week.[5] The Appellant re-commenced teaching on 8 February 2021 at the beginning of the Semester 1, 2021 teaching period.

[9] Upon his return to the workplace, the Appellant complained about his workload for the semester. During the Respondent's investigation into the workload complaint, it became apparent that the Appellant was undertaking assessments in a manner which the Respondent considered was inefficient. The Respondent also became aware of a number of student complaints about the Appellant. The Respondent sent several emails to the Appellant outlining the nature of the student complaints and providing direction as to how he should perform his duties.[6]

[10] The Appellant was asked to attend a meeting on 29 April 2021 to discuss the student complaints. The Respondent says that at the meeting the Appellant 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."[7]

[11] Following the meeting, the Respondent placed the Appellant on a formal performance improvement plan. On 3 May 2021, the Appellant commenced a second period of paid personal leave that continued until the termination of his employment on 16 December 2021. The Appellant 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 that the Appellant was unfit for work for the relevant period.[8]

[12] On 8 May 2021, the Appellant's daughter emailed a medical certificate on behalf of her father and stated her father's medical practitioner had advised him not to have any direct contact with the Respondent during the period covered by the certificate.[9]

[13] On 14 May 2021, the Respondent emailed the Appellant seeking his permission to contact his treating practitioner to advise of the University's processes in circumstances where an employee has been unfit for work for more than two weeks and to seek the medical practitioner's medical opinion in the development of a workplan for the Appellant's return to work. Attached to the email was an Authority to Obtain Medical Information form.[10]

[14] The Appellant sent the Respondent a medical certificate dated 20 May 2021 from his General Practitioner, Dr Kevin Rose, that indicated that due to the Appellant's present medical condition, and whilst he is taking certified sick leave, the Appellant should have no contact with Respondent.[11]

[15] The Appellant failed to respond to the requests made in the correspondence of 14 May 2021 or return a completed Authority to Obtain Medical Information form. Following the lack of response from the Appellant, the Respondent decided to direct the Appellant to attend an IME with a psychiatrist. The reasons for making that direction included concerns for the safety of the Appellant and the Respondent's staff and students in light of his 'war' comments at the 29 April 2021 meeting.[12]

[16] The direction to attend the first IME was given in a letter dated 29 June 2021. Prior to the appointment, the Appellant informed the Respondent 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." The Respondent asked the Appellant to provide such information to the psychiatrist conducting the IME. The Appellant failed to attend the IME.[13]

[17] On 25 August 2021, the Appellant was directed by the Respondent to attend an IME scheduled for 13 September 2021. The Appellant was informed that a failure to comply with the Respondent's direction to attend the IME may lead to the termination of his employment. On 27 August 2022, the Appellant sent correspondence to the Respondent asserting that he had not been provided with a legal basis for the direction to attend the IME and indicated that he would not attend the IME. On 10 September 2021, the Appellant was again informed that a failure to comply with the Respondent's direction to attend the IME may lead to the termination of his employment. The Appellant responded to this correspondence confirming that he would not attend the IME and that he would have no further communication. The Appellant again failed to attend the IME.[14]

[18] On 11 October 2021, the Appellant was directed a third time by the Respondent to attend an IME on 13 October 2021. The direction was contained in correspondence delivered by courier to the Appellant's home. The Appellant did not attend the third IME appointment scheduled for 13 October 2021.[15]

[19] An investigation was commenced into the Appellant's failure to comply with the direction to attend the IME. The Appellant was invited to attend a meeting and to provide a written response to the allegation but declined to do so. The investigator concluded that the Appellant had failed to follow reasonable and lawful directions and that this behaviour constituted serious misconduct.[16]

[20] The Respondent invited the Appellant to respond to the findings of the investigation. The Appellant did so on 14 December 2021. The Respondent considered the Appellant's response and decided to proceed with the termination of his employment on 16 December 2021.[17]

[21] After setting out the background, the Decision then sets out the relevant legal principles with respect to the obligation of an employee to comply with lawful and reasonable directions. The Commissioner then considers each of the factors in s.387(a)-(h) of the Act in turn to determine whether the dismissal was harsh unjust or unreasonable.

Valid reason for dismissal related to capacity or conduct - s.387(a)

[22] The Commissioner considered the evidence and submissions of both parties and concluded that the various directions of the Respondent to the Appellant to attend an IME were lawful and reasonable and that the Appellant's refusal to comply was a sound and defensible reason for his dismissal.[18]

[23] The Commissioner found that the Appellant was notified of the reasons for his dismissal in correspondence dated 9 December 2021 and that this weighed against a finding that the dismissal was unfair.[19]

Opportunity to respond to any reason related to his capacity or conduct - s.387(c)

[24] The Commissioner was satisfied that the Appellant was given an opportunity to respond to the reasons for his dismissal during and following the October workplace investigation. The Commissioner found that Appellant was offered, and accepted, a further opportunity to respond to the 9 December 2021 letter that provided the findings of the October workplace investigation. The Commissioner concluded that this weighed against a finding that the dismissal was unfair.[20]

Unreasonably refuse to allow a support person - s.387(d)

[25] The Commissioner found that the Respondent did not unreasonably refuse to allow the Appellant a support person and treated this factor as neutral.[21]

Warned about unsatisfactory performance before the dismissal - s.387(e)

[26] The Commissioner accepted that the reasons for dismissal related to conduct and not performance and therefore a disciplinary process of warnings was not relevant. She therefore treated this as a neutral factor.[22]

To what degree would the size of the enterprise and degree of human resource expertise be

likely to impact on the procedures followed in effecting the dismissal? - s.387(f) and (g)

[27] The Commissioner noted that the Respondent is a large employer with dedicated human resource management specialists. The Commissioner found this factor was neutral.[23]

[28] The Commissioner considered the matters identified by the parties as relevant including the Appellant's age, personal economic situation and length of service, whether the request for the IME was genuine and the failure by the Respondent to comply with its IME guideline.[24]

[29] The Commissioner then weighed up all the factors in s.387 of the FW Act and the circumstances of the case to find that Appellant's dismissal was not unfair.[25]

[30] In lengthy and detailed grounds of appeal, the Appellant seeks to introduce additional evidence and analysis not before the Commissioner in an effort to reagitate the Application. The Appellant's grounds of appeal are numerous and overlapping. They can be distilled into the following four categories:

1. The Appellant submits that the Commissioner erred by accepting Respondent's narrative of events without properly examining its credibility.

2. The Appellant submits that the Commissioner erred by failing to consider, or properly consider, the evidence and submissions provided by Appellant.

3. The Appellant submits that the Commissioner erred by making errors of fact.

4. The Appellant submits that the Commissioner erred by failing to take into account relevant facts.

[31] The Appellant submits that the appeal is in the public interest because:[26]

1. employees should not be required to submit to an IME where no valid reason to do so has been provided; and

2. the behaviour of the Respondent's managers has caused mental harm to past and present employees of the Respondent and this should not be permitted to continue to occur.

[32] The Decision subject to appeal was made under Part 3-2 Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the FWC considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a 'significant error of fact' (s.400(2)). Section 400 of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[33] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin,[27] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[28]

[34] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error.[29] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Appeal Ground One - Failing to test credibility of the Respondent's evidence

[35] The Appellant submits that the Commissioner erred by accepting the Respondent's narrative of events without properly examining the credibility of that narrative.[30] He says that this error is evidenced by:

a. a disproportionate number of references to the evidence of Respondent witnesses in the Decision;[31] and

b. the use of bolding at [20] in a quotation from the evidence of the Respondent's witness as to what occurred at the meeting held on 29 April 2021.[32]

[36] We note that the Decision records that the Appellant did not provide a written witness statement and only gave short oral submissions at the Hearing. The Respondent filed written witness statements from three witnesses. There was, therefore, more evidence made available to the Commissioner by the Respondent than the Appellant. Regardless of the volume of evidence filed by either party, the purpose of the Decision is to identify the reasons for the Decision. The Decision is not a summary of all the evidence which was received by the Commission. We are not satisfied that a difference in the number of references to evidence of the Respondent's witnesses as opposed to the evidence of the Appellant discloses on the part of the Commissioner a lack of consideration of all the relevant evidence or a bias in favour of the Respondent.

[37] The use of bolding by the Commissioner at [20] of the Decision merely identified what she considered most critical of the evidence given in the quotation contained at [20]. We consider this appropriate in the circumstances.

Appeal Ground Two - Failure to consider the Appellant's evidence and submissions

[38] The Appellant submits that the Commissioner erred by failing to consider or properly consider the following submissions he made and evidence he tendered. He says that this is evidenced by:

1. The statement by the Commissioner at [21] that the Appellant did not 'seriously contest' the substance of the evidence of the Respondent about what occurred at the meeting on 29 April 2021.

c. The length of paragraph [65] and that it did not adequately articulate the Appellant's key arguments.[33]

d. The Decision at [66] conflating the Appellant's submissions with respect to genuineness and premeditation.[34]

e. The Decision at [89] where it states that: "For efficiencies sake, I have not re-produced the Applicant's submissions with respect to these allegations" indicates that the Commissioner did not have regard to the Appellant's evidence and submissions with respect to premeditation and retribution.[35]

f. The Decision at [91] where it states that: _"_I do not re-produce the Applicant's submission" indicates that the Commissioner did not have regard to the Appellant's evidence and submissions with respect to the Respondent's alleged non-compliance with its own policies and procedures.[36]

g. The Commissioner failing to take into account the Appellant's allegation that his illness was caused by bullying and harassment by the Respondent.[37]

h. The Commissioner failing to take into account the Appellant's submission that the reassessment of his students was unjustified and done improperly.[38]

i. The Commissioner failing to take into account the Appellant's submission that there was no valid reason for directing the Appellant to attend the IME.[39]

[39] The Commissioner does not assert at [21] of the Decision that the Appellant did not contest the evidence of the Respondent's witness. In fact, at [21] of the Decision, she specifically notes his evidence contesting how long the complaints document was discussed for and how many complaints were made. The Commissioner made her assessment as to whether the Appellant challenged the accuracy of the evidence of the Respondent's witness as to what occurred at the meeting based on the evidence and submissions of the Appellant before and at the hearing before her. The Appellant's subsequent microanalysis of the evidence for the purpose of appeal cannot subsequently be relied on by the Appellant to assert that the Commissioner's assessment at the point in time it was made was not reasonable in all the circumstances. In any event, the evidence challenged by the Appellant on appeal does not fundamentally challenge the grounds upon which his dismissal was found not to be unfair. Ultimately, it was the statement that the Appellant made about going to 'war' which was the most relevant 'fact' from the evidence of the meeting as it was this statement combined with the duration of the absence from work which triggered the decision to direct the Appellant to attend the IME.

[40] While summarising the Appellant's argument briefly, we are not satisfied that [65] discloses a lack of consideration of the Applicant's case which might form a basis for appeal.

[41] We do not share the Appellant's view that paragraph [66] of the Decision demonstrates that the Commissioner conflated his submissions with respect to genuineness and premeditation in the way the Appellant suggests. It is clear from this paragraph and the Decision more broadly that the Commissioner understood the submissions made by the Appellant both with respect to genuineness and premeditation.

[42] It is clear that the Commissioner considered the Appellant's submissions that his illness was caused by the conduct of the Respondent's employees. The Commissioner's reference to the Appellant's submissions at [89] and [90] indicates that she has considered those submissions. It is not necessary for her to summarise those submissions in full in the Decision to demonstrate that she has considered the submissions. In any event, having reviewed those submissions and the transcript of the proceedings, the Full Bench is of the same view as the Commissioner that:

"There is no foundation for the suggestion that employees of the Respondent acted in concert to bring about the termination of the [Appellant's] employment and that the request for an IME was motivated by reasons other than those proffered by the Respondent."[40]

[43] In any event, even if the employer was responsible for the illness suffered by the Appellant, this would not of itself make its direction to attend the IME no longer lawful and reasonable.

[44] The Commissioner at [91]-[94] of the Decision considered the Appellant's argument that the Respondent did not comply with its own policies and procedures. The Commissioner's finding at [71] that:

"the [Appellant] 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."

is consistent with common law authority. There is nothing in the submissions of the Appellant on appeal which would cause us to depart from the view expressed by the Commissioner in these paragraphs in the Decision. We concur with the Commissioner's finding that the Respondent was entitled to give the direction to attend the IME at common law independently of its policies and procedures.

[45] We are satisfied that the Commissioner was alert to the Appellant's submission that the reassessment of his students was unjustified and done improperly. However, we are not of the view that the Appellant's submissions in this regard are made out. Even if they were, the Appellant was directed to attend the IME because of comments he made about his relationship with his students, not as a consequence of his assessment of their work.

[46] At [65] to [76] of the Decision, the Commissioner considered whether the Respondent had a valid reason for directing the Appellant to attend the IME. There is nothing in the submissions of the Appellant on appeal which would cause us to depart from the view expressed by the Commissioner in these paragraphs in the Decision.

[47] The Appellant submits that the Commissioner erred by making the following errors of fact:

a. At [7] of the Decision, the Commissioner found that the issuing of the direction to attend the IME was a consequence of student results in 2020.[41]

1. At [9] of the Decision, the Commissioner omitted the name of one of the teachers responsible for reassessing the Semester 1, 2020 student results.

c. The Decision at [65] states that the Appellant was referred to a 'Physiatrist' and in fact he was referred to a psychiatrist.[42]

d. The Decision at [71] in the fourth bullet point wrongly asserts that the Appellant failed to produce any medical evidence of his incapacity to work after the document dated 20 May 2021.[43]

[48] The Commissioner did not find at [7] that the student results were the trigger for the direction to attend the IME. At [7], she is merely commencing explaining the background to the series of events which eventually cumulated in the issuing of the direction.

[49] At [9] of the Decision, the Commissioner omitted the name of one of the teachers responsible for reassessing the Semester 1, 2020 student results. We are not of the view that the omission of the name of one of the teachers responsible for reassessing the Semester 1, 2020 student results is a significant fact affecting the outcome of the Decision.

[50] It is clear that paragraph [65] contains a typographical error. An appeal must identify an error of law or fact. Merely identifying grammatical or spelling errors is not sufficient.

[51] The Appellant misapprehends what is stated in the fourth bullet point of paragraph [71]. It is clear from the first bullet point in [71] that the Commissioner was aware that further medical certificates were provided after this date. The finding of the Commissioner is that the Appellant failed to provide further clarification as to why he was unfit for work or unable to communicate with the Respondent.

Appeal Ground Four - Failure to take into account relevant facts

[52] The Appellant submits that the Commissioner erred by failing to take into account relevant facts. The facts which he submits the Commissioner failed to take into account can be summarised as follows:[44]

a. The Appellant's doctors advised him to have no contact with the Respondent.[45]

b. The Respondent failed in its duty of care to assist him recover from his illness and return to work as soon as practicable.[46]

c. The Respondent did not provide him with a legal basis or rational reason for the IME.[47]

[53] The Commissioner did take into account the Appellant's evidence with respect to the advice of his doctors. This is clear in the following extract from the Decision:[48]

"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." 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."

[54] The Appellant has not established that the Respondent failed in the duties it had to him with respect to his health and safety. In fact, the purpose of the IME was to assist the Respondent understand how it might be able to facilitate his return to work. The evidence is that the Appellant resisted any contact with the Respondent which might have enabled it to assist his recovery and return to work.

[55] The Commissioner did take into account the Appellant's assertion that the Respondent did not provide him with a legal basis or rational reason for the IME. See for example her findings at [75] and [76].

[56] We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds or submissions have demonstrated appealable error in the Commissioner's Decision. Further, no injustice or counter-intuitive result is manifest. The Commissioner's findings and conclusion were open to her.

[57] For the reasons set out above, permission to appeal is refused.

[1] [2022] FWC 1375 (Decision).

[26] Appellant's appeal submissions filed on 13 July 2022 (Submissions), 3.

[27] [2010] FWAFB 5343; (2010) 197 IR 266.

[29] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481, [30].

[41] Appeal Book 160; Submissions (n 26) 1.

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