Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 31 May 2019, Mr Glenn Reseigh (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Stegbar Pty Ltd T/A Jeld-wen Glass Australia (Stegbar or the Respondent). Mr Reseigh sought reinstatement or, in the alternative, compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

• (a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• (b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[6] The uncontested background to the matter is as follows:

• Mr Reseigh was employed by the Respondent as a full-time assembler/glazier in October 1997 and was dismissed on 23 May 2019.

• Mr Reseigh is 46 years old.

• Mr Reseigh's employment was covered by the Stegbar (SA Division) Pty Ltd Enterprise Agreement 2017-2020.

• Mr Reseigh's physical and mental health deteriorated in the 2-3 years prior to the dismissal.

• At the time of the dismissal Mr Reseigh had 109 hours of accrued annual leave and 137 hours of accrued long service leave.

• Stegbar employed over 50 employees at the time of the dismissal.

• The spreadsheet to Mr Vanderlinden's statement[1] accurately records the days Mr Reseigh was absent and the days on which he was late.[2]

• Mr Reseigh does not remember every occasion that he was absent from work but he attributes it to his medical condition and that is the default explanation for any absence.[3]

[7] There is a dispute as to the circumstances which led to the dismissal, whether they represented a valid reason for the dismissal, and whether the dismissal was harsh, unjust and/or unreasonable.

[8] There being contested facts involved, the Commission is obliged by s.397 of the Act either to conduct a conference or hold a hearing.

[9] Mr Reseigh was represented by Mr P. Dean (of counsel), and Mr R. Colgrave (of counsel) represented Stegbar. Permission was granted pursuant to s.596 of the Act.

[10] The following witnesses gave evidence on behalf of the Applicant:

• Mr Glen Reseigh

• Dr Andrew Lok

• Mr David Kirner (CFMMEU Manufacturing Division - District Secretary)

[11] Mr Reseigh submitted two statements[4] and gave evidence on his own behalf. Mr Reseigh declined an invitation by the Commission to anonymise his name in light of the detailed medical evidence. His relevant evidence is summarised as follows.

[12] In 2017, he was employed as a full time assembler/glazier by Stegbar. A description of Mr Reseigh's roles was attached to his statement, and lists light repetitive lifting, working with power tools and packaging. Mr Reseigh's second statement identified that he punched, drilled and sawed aluminium, attached side lights (5kg), lifted glass (10-20kg) onto the bench and assembled shower screens. Prior to his dismissal he lifted heavy objects of 15kg or more about five to six times a day.[5] In cross examination Mr Reseigh stated he lifted panels that weighed between 5 and 20kgs.[6]

[13] Mr Reseigh was the only shower door assembler in the assembly team.[7] Mr Reseigh worked closely with the aluminium cutter who prepared the material for Mr Reseigh to create the shower door assemblies. Mr Reseigh agreed that he was told by Stegbar that it could not predict when he would be coming to work.[8] When Mr Reseigh was absent, someone else would have to step in to perform the work which often was Mr Vanderlinden, who still had to perform his managerial role.[9]

[14] Throughout 2016 Mr Reseigh was suffering from constant pain which was later determined to be as a result of gallstones. Mr Reseigh had an operation to remove his gallbladder in February 2017 and was granted annual leave from 20 February to 3 March 2017.[10]

[15] Mr Vanderlinden began to discuss Mr Reseigh's health in March 2016, observing that he discussed lateness and absenteeism on numerous occasions. Mr Reseigh accepted that he had been late and absent. Mr Reseigh accepted that Stegbar was trying to get to the bottom of what was wrong with him and provide a level of assistance.[11] Mr Reseigh accepted he was told that he needed to get a plan in place to rectify his absenteeism and lateness or Stegbar would proceed with further disciplinary actions.[12]

[16] On 22 July 2016 Mr Reseigh was given a written warning.[13] Mr Reseigh was late 2-3 times per week, generally by a few minutes but on some occasions by up to 30 minutes.[14] When Mr Reseigh suffered pain he was unable to come to work, and the medication he took for the pain made him drowsy.

[17] In September 2016 Mr Reseigh began to experience haemorrhoidal pain. The condition was exacerbated by the heavy lifting his work involved. The haemorrhoid pain was constant and made it difficult to sleep and to get out of bed in the morning. Mr Reseigh was taking prescription pain killers. Mr Vanderlinden spoke to Mr Reseigh about his failure to attend for work and the obtaining of a medical certificate after his non-attendance.

[18] Mr Reseigh had a colonoscopy in 2017 and more invasive surgery in January 2018. Despite this, the haemorrhoidal pain and bleeding persisted.

[19] In September 2016 Mr Reseigh began experiencing acute major depression (his relationship was a contributing factor). This resulted in memory issues, low energy levels and insomnia, which was further contributed to by the conduct of his housemate. Mr Reseigh stated that his mental condition improved after he moved to a new location.

[20] Mr Reseigh does not dispute the attendance records held by Stegbar, and that on the occasions he did come in late Mr Reseigh would not always advise his supervisor but rather make up the time.[15]

[21] Mr Reseigh accepted that in 2017 he took a total of 104 days sick leave (ten paid and 94 unpaid) in addition to some days where annual leave was taken in lieu of sick leave.[16] On 24 July 2017 Mr Reseigh was told by Mr Vanderlinden that the practice of granting annual leave retrospectively in lieu of sick leave would cease.[17]

[22] In approximately August 2017 Mr Reseigh made an application to take three days' long service leave each week. Mr Reseigh contended that he could do his job, but not on a full-time basis, and sought Stegbar's assistance in a short to medium term capacity to allow him to recuperate and regain full capacity. The long service leave application was rejected in an email from Mr Andrew Howard (General Manager) on 10 August 2017.

[23] On 17 May 2018 Mr Reseigh attended a meeting in relation to his lateness and absenteeism. The meeting was adjourned to 5 June 2018 to allow Mr Kirner to attend. Mr Reseigh produced a letter from his doctor which indicated he continued to suffer from haemorrhoidal pain. Mr Reseigh was also suffering from insomnia as a result of his flatmate, a shift worker, keeping him awake. Mr Reseigh also took sleeping tablets which made it hard for him to get up in the morning.[18] Mr Reseigh was warned that disciplinary action may be taken against him if his attendance did not improve. In the two weeks following the meeting, Mr Reseigh was late six times and absent on three days.[19] By that stage Stegbar had deferred Mr Reseigh's starting time from 6.00am to 7.00am to accommodate his problems.[20] Mr Reseigh would work late to make up the time. Only employees on overtime would remain.

[24] By May 2018 Mr Reseigh was aware that Stegbar was dissatisfied with his lateness but continued to arrive late.[21]

[25] A review meeting was conducted on 19 June 2018 when Mr Reseigh and Mr Kirner met with Mr Bruce and Mr Vanderlinden. Mr Reseigh's work attendance was reviewed. It was suggested by Mr Kirner that Mr Reseigh talk to his doctor about the weight restriction that had been imposed. Mr Reseigh talked to Dr Lok, who suggested not lifting anything over 10 to 15kg, but Mr Reseigh did not get Dr Lok to provide a letter to that effect to Stegbar.[22]

[26] On 22 June 2018 Mr Reseigh received a written warning that arose from the meeting of 19 June 2018. The letter advised that his behaviour would not be accepted moving forward and warned that his employment may be terminated.

[27] A further meeting was conducted on 9 August 2018. Mr Reseigh's attendance was reviewed and it was noted that he had been late five times and had 13 days off sick since the 19 June meeting. Mr Reseigh advised he had stopped taking sleeping tablets though his flatmate was still making noise. Mr Reseigh advised he was on a waiting list for surgery in respect of his haemorrhoid condition and he would likely be operated on in six months' time.[23] Mr Reseigh advised it was the pain that caused his lateness and absences at that time. Despite being invited to do so, Mr Reseigh did not approach his doctor about the potential of seeking light duties.

[28] Throughout March 2019, Mr Reseigh would work a shift and then need one or two days to recover as a result of his haemorrhoid condition.[24]

[29] On 8 April 2019 he attended the offices of Dr Ganesan for a medical assessment at the request of Stegbar. Mr Reseigh advised Dr Ganesan that he was unable to guarantee a return to working a four or five day week due to the combination of haemorrhoid pain, depression and insomnia. He was unable to guarantee this even if weight restrictions were reduced to a maximum weight of 15kg.

[30] On 20 May 2019 Mr Reseigh was asked to attend a meeting with Mr Pederick and Mr Vanderlinden about why he was taking so much time off. Mr Reseigh was stood down and requested Mr Kirner from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to attend the meeting, which was deferred to 21 May 2019. Mr Reseigh advised that at this point he was aware that his ongoing employment was under review as a result of his inability to work a full week.[25] Mr Kirner attended the subsequent meeting as a support person.

[31] Mr Reseigh accepted that by 20 May 2019 his absences had increased from a two day a week to a pattern of three days per week.[26]

[32] On 21 May 2019 Mr Kirner sent Mr Vanderlinden a request on Mr Reseigh's behalf seeking to take "some annual or long service leave."

[33] On 23 May 2019 Mr Reseigh rang Mr Vanderlinden to ask what was going on and was advised that Stegbar had decided to terminate his employment that day for "inconsistent attendance at work" and a "regular pattern of lateness."

[34] Mr Reseigh was shocked and devastated by the dismissal.

[35] The termination letter indicated that Stegbar was "aware of your personal issues with health and tried to accommodate your absences within reason, however the non-attendances are not reducing, in fact they have been accelerating in their frequency."

[36] Mr Reseigh contends that his absences and lateness were caused by his poor health.

[37] Mr Reseigh contends that he had not been the subject of disciplinary issues and had an unblemished employment record until his health issues in 2016.

[38] Mr Reseigh was treated by Dr Lok.

[39] Mr Reseigh contends that at the time of his dismissal he had accrued 110 hours of annual leave and 137 hours of long service leave.[27]

[40] Mr Reseigh contends that Stegbar should have allocated light duties to him but accepted in cross examination that he did not take any steps to provide medical information to support this measure as a way forward, as suggested by Mr Kirner.[28] Mr Reseigh is confident he will return to full capacity. He has been advised he can lift up to 10kgs and expects to be able to work up to the heavier lifting tasks.

[41] Mr Reseigh explains his lateness as related to his trouble getting out of bed and the effect of the medical condition, the pain, bleeding and constipation.[29] Mr Reseigh attributed some of his lateness to the effects of Panadine Forte which he took for two to three weeks after his surgery.[30] Mr Reseigh then took Panadol for pain relief which did not cause drowsiness.[31]

[42] Mr Reseigh seeks reinstatement and would be prepared to use leave to reduce his workload to less than full-time so as to assist him to work more consistently.

[43] As at 15 August 2019 Mr Reseigh felt that his mental and physical health had improved.

[44] Mr Reseigh explained his decision to visit a variety of doctors was based on the speed of access to an appointment and the desirability of getting a different opinion.[32]

[45] Mr Reseigh accepted that 14 of the consultations between February 2017 and July 2017 were not related to his haemorrhoid condition.[33] Mr Reseigh was unable to adequately explain why he reported being symptom-free to Dr Lok on 3 April 2018 but submitted a medical certificate that he was unfit for work on 5 April 2018.[34]

[46] Mr Reseigh has received some interim workers compensation payments (which may be recovered if his claim is denied).

[47] Dr Lok submitted an initial medical report dated 28 July 2019,[35] a medical report dated 13 August 2019,[36] and a further medical report dated 22 August 2019.[37] He also gave evidence. His relevant evidence is summarised as follows.

[48] Dr Lok is a graduate of the University of Adelaide with degrees in Medicine and Surgery. He has been a member of the Royal Australian College of General Practitioners since 2007. I accept that he is an expert in his field.

[49] Dr Lok said that some of the medical certificates that were issued were for another medical condition, for example viral illness or back pain.[38] Dr Lok only saw Mr Reseigh in relation to his haemorrhoidal condition.

[50] Dr Lok saw Mr Reseigh on 18 October 2016 and noted that the haemorrhoid condition may have been contributed to by the pain relief he was using for his gallbladder pain. Dr Lok saw Mr Reseigh on the following day where he continued to complain of pain. Dr Lok found three peri-anal lumps. Mr Reseigh was referred to a colorectal clinic and had a colonoscopy on 20 February 2017.

[51] Due to ongoing bleeding and discomfort Mr Reseigh had a repeat sigmoidoscopy and ligation on 19 September 2017.

[52] There being no improvement, Mr Reseigh had a haemorrhoidectomy on 25 January 2018.[39]

[53] Dr Lok saw Mr Reseigh in February and April 2018 and reported his rectal bleeding had been resolved.

[54] On 3 April 2018, based on Mr Reseigh's advice that he was symptom free, Dr Lok determined Mr Reseigh was fit for work.

[55] Dr Lok did not see Mr Reseigh between April 2018 and June 2019.

[56] Dr Lok's knowledge of Mr Reseigh's condition in the period 3 April 2018 to 14 June 2019 is based on information from Mr Reseigh.[40] Dr Lok believes, based on that information, that Mr Reseigh had a relapse in his haemorrhoidal condition after his operation in January 2018 and subsequently then recovered.[41]

[57] On 14 June 2019 Dr Lok saw Mr Reseigh who advised he was experiencing rectal bleeding and was seeing specialists at the Modbury Hospital.

[58] In his report dated 22 August 2019, Dr Lok suggested Mr Reseigh have a maximum lift load of 15kgs and suggested that this should apply for a period of eight weeks.

[59] Mr Reseigh did not approach him about seeking a weight restriction on his duties at Stegbar.[42]

[60] Mr Kirner submitted a statement and gave evidence on his own behalf. [43] His relevant evidence is summarised as follows.

[61] The work performed by Mr Reseigh was covered by the Stegbar (SA Division) Pty Ltd Enterprise Agreement 2014-2017 (the Agreement).

[62] Mr Reseigh was classified as Level 4 under the Agreement and principally assembled shower screens.

[63] Mr Vanderlinden is a "hands on" Supervisor who filled in and performed Mr Reseigh's duties when required.

[64] Mr Kirner has supported and represented Mr Reseigh in this matter since 2016.

[65] On or before late June 2018, Mr Kirner raised with Stegbar s.352 of the Act which states that an employer must not dismiss an employee for temporary absence due to illness or injury.

[66] Mr Kirner recalled that at the 21 May 2019 meeting Stegbar mentioned that Mr Reseigh had been absent for 121 work days in the past year, that possibly Mr Reseigh was late on 30 occasions, and that he was currently working only two days per week.[44]

[67] Stegbar should have been able to accommodate Mr Reseigh's limitations by providing light duties, and Mr Kirner did not expect that Stegbar would dismiss Mr Reseigh on 21 May 2019.

[68] Mr Reseigh's role has not been replaced since his dismissal.

[69] The following witnesses gave evidence on behalf of the Respondent:

• Mr Michael Vanderlinden (Group Manager - Shower Screen and Wardrobes)

• Mr Greg Pederick (Operations Manager)

• Mr Andrew Howard (Shower Screen Assembler)

• Dr Luke Ganesan

[70] Mr Michael Vanderlinden submitted a statement[45] and gave evidence. His relevant evidence is summarised as follows.

[71] Mr Vanderlinden is the Group Manager - Shower Screen and Wardrobes, and supervises Mr Reseigh.

[72] Mr Reseigh's work was largely self-managed.

[73] Mr Reseigh's attendance prior to 2016 had not been "up to scratch" and would result in his sick leave entitlement being exhausted, though it was not formally managed until 2016.

[74] On 16 March 2016 he met with Mr Reseigh about his lateness and absenteeism. At that stage Mr Reseigh had been back at work for seven to eight weeks and had taken four additional sick days. Mr Vanderlinden examined the reasons for the absenteeism and raised the need for Mr Reseigh to get his health in order or further disciplinary action might result. This meeting was recorded as counselling.[46]

[75] On 22 July 2016 Mr Vanderlinden met with Mr Reseigh again. Mr Vanderlinden advised he intended to issue a written warning. Mr Reseigh sought to have a representative attend. The meeting was reconvened on 8 September 2016 to allow Mr Kirner from the CFMMEU to attend.

[76] In 2017 it was confirmed that Mr Reseigh had medical issues. Mr Reseigh had gallstone surgery in February 2017 and took leave from 20 February to 3 March 2017. Mr Reseigh returned to work but the pattern of leave continued as it had before.

[77] A meeting was held with Mr Reseigh to discuss his lateness and excessive sick leave on 5 June 2018. Mr Reseigh was advised that if there was no improvement in two weeks, Stegbar would proceed with disciplinary action.

[78] On 19 June 2018 a follow-up meeting was conducted with Mr Kirner present. The meeting discussed Mr Reseigh's lateness and attendance. The idea of deferring Mr Reseigh's starting time was discussed and subsequently agreed to. Mr Reseigh was advised his attendance had not improved and he would be issued with a written warning. This warning was issued on 22 June 2018. The warning noted that a lack of improvement could result in further disciplinary action up to and including termination of employment.

[79] On 22 July 2016 a further meeting was conducted at which it was noted Mr Reseigh's attendance had not improved. A first written warning was issued.[47]

[80] On 9 August 2018 a further meeting was held with Mr Reseigh about his lateness, on five occasions since the previous meeting, and excessive absenteeism, 13 days since the last meeting. Mr Reseigh advised he was waiting for further surgery. Mr Kirner suggested to Mr Reseigh that he go to a doctor and get clearance to perform light duties which Stegbar were prepared to seriously consider.[48]

[81] On 21 August 2018 a medical certificate was received in relation to light duties which Mr Vanderlinden discussed with Mr Howard.[49]

[82] Their concerns about Mr Reseigh's attendance and possible ways forward were discussed. Confidentially, counselling was offered to Mr Reseigh by Stegbar.

[83] Mr Vanderlinden advised that Mr Reseigh was not forthcoming about his issues and Stegbar only became aware of the medical conditions when it scheduled counselling meetings.

[84] Mr Reseigh returned to work after surgery but the pattern of leave continued as before with days off occurring intermittently.

[85] Mr Reseigh was spoken to about these absences.[50]

[86] Mr Vanderlinden submitted a spreadsheet detailing the work attendance issues.[51] Copies of the sick leave applications and medical certificates were also submitted.

[87] A meeting was conducted concerning Mr Reseigh's work attendance on 21 May 2019 with Mr Kirner present. Mr Reseigh mentioned he was suffering from depression as he had been evicted and had moved in with his girlfriend, despite his relationship being the cause of some issues. Mr Vanderlinden was concerned about the longevity of the illness particularly in light of Mr Ganesan's report indicating a potential period of 12 months before surgical intervention might be possible.[52] Mr Vanderlinden accepted that it was not put to Mr Reseigh on 21 May 2019 that Stegbar was considering dismissing him.[53] Mr Vanderlinden's concerns were primarily the amount of time off Mr Reseigh was taking.[54]

[88] Mr Pederick referred the matter to Human Resources and a decision was made to dismiss Mr Reseigh. Mr Vanderlinden was not directly involved in the decision to dismiss.[55]

[89] Mr Reseigh made a leave application in the time he was suspended, but it was not actioned.

[90] Mr Andrew Howard submitted a statement[56] and gave evidence. His relevant evidence is summarised as follows.

[91] He has been General Manager since 2012.

[92] Mr Pederick reported to Mr Howard.

[93] Stegbar employs about 30 full-time assemblers and about eight casual employees.

[94] Mr Reseigh was employed as a shower screen assembler which involves pressing aluminium and assembling aluminium around glass for shower screens.

[95] In the last few years Mr Reseigh has been the only person working in the shower screen area.

[96] If a production employee - such as Mr Reseigh - submits an application for leave, Stegbar looks at the schedule and, where possible, schedules around it, which might involve bringing certain jobs forward and/or cycling other employees through the role, and/or Mr Vanderlinden performing the work himself.

[97] Short term absences due to illness with little notice made it difficult to accommodate rescheduling.[57]

[98] Stegbar has a Christmas shut down and employees are required to retain sufficient annual leave to cover this period.

[99] Stegbar seeks to be as flexible as possible in accommodating leave requests.

[100] Mr Reseigh regularly used his sick leave entitlement each year and always produced medical certificates.

[101] When employees are off sick repeatedly, or for an extended period, Stegbar seeks information about the impact of the medical issue on their capacity to work and safely operate machinery.

[102] Mr Reseigh began to take excessive amounts of leave in late 2015 and early 2016. In this period Mr Reseigh's leave requests would be retrospective in that he would take a day off sick and then request that the day be counted as annual leave rather than unpaid sick leave.

[103] In 2016 when Mr Reseigh was suffering from gallstones, Mr Howard discussed the matter with him and suggested he take time off to attend for surgery.

[104] Mr Reseigh needed more time off and exceeded his accrued leave entitlements.

[105] Mr Howard sought to assist Mr Reseigh initially but as time went on he advised Mr Reseigh that it was difficult to accommodate his numerous absences while maintaining the normal running of the business and keeping customers happy.

[106] On two occasions Mr Howard asked Mr Reseigh what was going on. Mr Reseigh advised: "I don't want to lose my job." Mr Howard suggested that he seek sickness benefits from Centrelink and ask that his surgery be brought forward.

[107] Mr Howard was aware that Mr Pederick had counselled Mr Reseigh over the past two years.

[108] The Union advised that Mr Reseigh was suffering from depression.

[109] Mr Howard said that Mr Reseigh did not appear to understand the effect his absences were having on the business.

[110] When Mr Reseigh's attendance dropped to two days per week, Stegbar could not cope with his absenteeism any longer. It was impacting on customers as builders' orders were being prepared late. Stegbar engaged labour hire workers to cover the shortfall in this period.

[111] Mr Howard was primarily concerned about the unpaid, unplanned absences taken by Mr Reseigh.[58] Mr Howard was not concerned about the long service and annual leave, other than when Mr Reseigh sought to use leave to cover an unplanned sick day after he had exhausted his sick leave entitlement.[59]

[112] At the time Mr Reseigh, through Mr Kirner, made the application to take annual leave or long service leave, Mr Reseigh was suspended and Stegbar was considering dismissing him.[60]

[113] Mr Howard recommended to Human Resources that Mr Reseigh be dismissed as he could not perform the inherent requirements of his role as a result of his failures to come to work at all. Mr Grundy from Human Resources approved the recommendation to dismiss Mr Reseigh.

[114] Mr Vanderlinden had not raised an issue with respect to Mr Reseigh's work performance (apart from the attendance issues) since he started supervising him in 2004.[61]

[115] Mr Greg Pederick submitted a statement[62] and gave evidence. His relevant evidence is summarised as follows.

[116] Mr Pederick is the Operations Manager at Stegbar.

[117] Mr Vanderlinden reports to Mr Pederick.

[118] He had little direct involvement with Mr Reseigh but became involved in managing Mr Reseigh's absences since December 2018.[63]

[119] He was advised by Mr Pederick about concerns with Mr Reseigh's work attendance.

[120] Mr Vanderlinden would often work late to do Mr Reseigh's work. This reduced the risk posed by Mr Reseigh's absenteeism.

[121] Stegbar accommodated Mr Reseigh's medical issues and absenteeism for a long time before addressing it formally.

[122] On 12 March 2019 Mr Reseigh was advised in a formal letter that Stegbar was seeking a formal assessment of Mr Reseigh's condition and its impact on his work from Dr Ganesan. The referral letter dated 4 April 2019 provides a summary of Mr Reseigh's duties.

[123] The Report dated 8 April 2019 was received from Dr Ganesan.[64]

[124] On 20 May 2019 Mr Howard advised Mr Reseigh he wanted to meet with him to discuss his medical condition and attendance, and advised that he could bring a support person. Mr Reseigh was suspended at this point.

[125] A meeting with Mr Reseigh and Mr Kirner was held on 21 May 2019. Mr Howard advised that Mr Reseigh over the last 12 months had 121 days absent and 30 days late, and that Stegbar had tried to accommodate his absences at two days a week, then three days a week and were now accommodating four days a week. Mr Howard advised that Dr Ganesan's medical report said he could not work a full week. A discussion was had about Mr Reseigh's condition, the potential 12 months' waiting time for his surgery, his depression, living circumstances, financial issues, and his seeking professional and medical help.[65] Mr Pederick accepts that he did not warn Mr Kirner at the meeting that dismissal was being considered.[66]

[126] Mr Pederick observed that Mr Reseigh had had 121 days off in the year to 20 May 2019, and that amount of time was intolerable.[67] He subsequently consulted Mr Mark Grundy, Director of Human Resources.[68]

[127] On 23 May 2019 Mr Pederick advised Mr Reseigh in writing that Stegbar had determined to dismiss him as a result of his inability to perform the inherent requirements of the job.

[128] On 27 May 2019 a separation certificate was provided.

[129] Dr Luke Ganesan submitted a statement containing his Curriculum Vitae[69] and gave evidence. His relevant evidence is summarised as follows.

[130] As a result of a request from Stegbar, he met with Mr Reseigh on 8 April 2019 and prepared a report on his fitness for work that day.[70]

[131] Mr Reseigh provided a full medical history and advised Dr Ganesan that he had had issues in the past two years with abdominal pain secondary to gallstones, was plagued by pain and bleeding from his haemorrhoids, and had undergone a number of procedures. Heavy lifting appears to aggravate the haemorrhoids and he was awaiting surgical intervention and review which may take up to 12 months to occur.

[132] Mr Reseigh advised that his circumstances and the impact of his inability to work have impacted his finances, which resulted in his eviction and contributed to him suffering from depression. He also suffers from difficulty in sleeping due to internal distress and pain.

[133] Mr Reseigh advised Dr Ganesan that he was unable to guarantee a return to working a four or five day week due to the combination of haemorrhoid pain, depression and insomnia. He was unable to guarantee this even if weight restrictions were reduced to a maximum weight of 15kgs.

[134] Dr Ganesan recommended a mental health treatment plan be created. Mr Ganesan advised he did not express any expert opinion on Mr Reseigh's capacity to work but simply recorded that Mr Reseigh did not believe he could work due to the combination of factors mentioned.[71]

[135] There were some differences between Mr Reseigh's evidence in chief and cross examination. For example, in his initial statement he contended that at the 21 May 2019 meeting he was not aware of the real potential of dismissal,[72] but he readily accepted in cross examination that he was aware that his employment was at risk as he could not complete a full week's work.[73]

[136] Whilst it is understood that most witnesses are not familiar with giving evidence or being cross-examined, on a number of occasions Mr Reseigh was unable to answer simple questions about matters that were within his knowledge.[74] On one occasion, Mr Reseigh refused to answer a question about why he would turn up to work late.[75]

[137] Mr Reseigh's chronology of his condition and visits to doctors was at best confusing.[76]

[138] Mr Reseigh's evidence as to the conditions he was suffering from that led to the issue of medical certificates was unconvincing. He asserts that the absences were due to his haemorrhoid condition but was unable to explain the reasons for 14 of the consultations between February 2017 and July 2017. Despite the evidence from Dr Lok that Mr Reseigh was symptom-free on 3 April 2018, he submitted a medical certificate from a different doctor on 5 April to the effect that he was unfit for work as a result of his haemorrhoids.[77] Mr Reseigh's evidence about a relapse in his condition after 3 April 2018, and when he was placed on a waiting list for a further haemorrhoid operation at Modbury Hospital, was inconsistent or at best confused.[78]

[139] I have determined to treat Mr Reseigh's evidence with caution, except where it is corroborated.

[140] There does not appear to be any dispute that Mr Reseigh had been unable to attend work for a considerable period in the years since 2016 and that he was also late for work on a large number of occasions.

[141] There does not appear to be any dispute that the reasons for the absence and lateness (collectively, attendance issues) were due to Mr Reseigh's medical condition exacerbated by his personal circumstances.

[142] I accept that Mr Reseigh was spoken to on numerous occasions about Stegbar's concerns as to his attendance and was assisted by Mr Kirner where he so requested.

[143] I accept that Mr Reseigh was warned on a number of occasions that if his attendance did not improve he could be dismissed.

[144] I find that on the last occasion that Mr Reseigh's attendance was discussed Stegbar did not expressly advise him that it was considering dismissing him.

[145] I accept that at the time of the dismissal Mr Reseigh was not able to perform his duties on a full-time basis and that the number of weekly absences was progressively increasing.

[146] I accept that this caused disruption to Stegbar's capacity to provide customers with products on time and resulted in Mr Vanderlinden (and others) having to undertake Mr Reseigh's duties.

[147] The circumstances of the dismissal do not appear to represent a breach of s.352 of the Act.

[148] At the time of the dismissal the information on hand to Stegbar was such that it appeared that Mr Reseigh's surgery was some months away and thus the causal factor would not be resolved for that period.

[149] Mr Reseigh submits that:

• Insofar as the valid reason relied upon relates to incapacity, the inquiry must be directed at the facts as they were at the time of the dismissal.[79] The Commission must determine for itself if the facts supported a conclusion that the Applicant was unable to perform the role due to incapacity,[80] and if those circumstances represented a valid reason for dismissal.[81]

• Mr Reseigh suggested that the facts in this matter did not support a conclusion that Stegbar had a valid reason to dismiss as he had accrued leave and the degree of incapacity was not substantial.

• Mr Reseigh contended he was not given an opportunity to respond to the medical report prepared by Dr Ganesan.

• Mr Reseigh had a lengthy period of employment and the impact of the dismissal was extraordinarily harsh.

[150] Stegbar submits that:

• Mr Reseigh regularly failed to attend for work.

• That Stegbar worked with Mr Reseigh to address the underlying issues including allowing annual and long service leave to be taken after the exhaustion of Mr Reseigh's sick leave.

• Mr Reseigh's attendance issues were impacting on production.

• Stegbar engaged with Mr Reseigh repeatedly over a long period of time to try to address the attendance problem.

• Mr Reseigh was unable to perform the inherent requirements of the position.

• Mr Reseigh had a genuine opportunity to respond to the reason for the dismissal.

• Stegbar had a valid reason to dismiss Mr Reseigh and the dismissal was not harsh, unjust or unreasonable.

[151] There is no dispute about, and I am satisfied that, Mr Reseigh has been dismissed within the meaning of s.385 of the Act.

[152] Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

• whether the application was made within the period required in subsection 394(2);

• whether the person was protected from unfair dismissal;

• whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

• whether the dismissal was a case of genuine redundancy.

[153] There was no submission made in respect of these matters, and on the evidence available to me I find that none of these matters are a relevant consideration in this matter.

[154] Having considered each of the initial matters, I am required to consider the merits of the Applicant's application.

Was the dismissal harsh, unjust or unreasonable?

[155] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

• whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

• whether the person was notified of that reason; and

• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

• if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

• the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

• The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

• any other matters that the FWC considers relevant.

[156] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[82]

[157] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

[158] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[83] and should not be "capricious, fanciful, spiteful or prejudiced."[84] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do were it in the employer's position.[85]

[159] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination:[86]

"The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[87]

[160] For there to be a valid reason related to the Applicant's conduct, I must find that the conduct occurred and justified termination.[88]

[161] Regular attendance at the workplace was an inherent requirement of Mr Reseigh's role.

[162] There is no dispute that Mr Reseigh advised Dr Ganesan on 8 April 2019 that he was unable to work four or five days per week due to his medical condition, even if a 15kg weight restriction was allowed.

[163] Mr Reseigh was absent from work for 120 days in the 12 months prior to 20 May 2019. I accept that Stegbar did not take issue with his paid sick (personal) leave, but was concerned with the amount of unpaid leave and the disruption caused by not attending for work and then accessing annual leave to avoid a loss of wages.

[164] Mr Reseigh was also late for work on numerous occasions.

[165] The evidence reveals that Mr Reseigh appears to rely on his haemorrhoidal condition to explain his absences following his gallbladder surgery. This position is not entirely supported by the medical evidence which reveals that a number of the absences were not due to this condition; however I accept that Mr Reseigh's life was in turmoil and that this impacted on his capacity to attend work. The poor attendance was not for a short duration; indeed it appears that Stegbar worked unsuccessfully with Mr Reseigh for a number of years to address the underlying causes and to get him back on track, including changing his rostered hours.

[166] I accept that Stegbar did not rush to judgement.

[167] I accept that the number of days that Mr Reseigh would not attend work each week was increasing as time progressed. I accept that at the time of dismissal there appeared to be no end to this issue within a reasonable period of time such that Stegbar should have persisted. It appears to me that based on the information Mr Reseigh provided to Dr Ganesan, Stegbar reasonably held the belief that it could not reasonably rely on Mr Reseigh to attend for work on any given day, and the surgical intervention to improve his condition was as far as 12 months away.

[168] I accept that Mr Reseigh's absences were not a short term injury or illness within the meaning of s.352 of the Act.

[169] I accept that Mr Reseigh's life in general appears to have fallen into an abyss prior to his dismissal, but that does not abrogate the requirement to attend for work.

[170] In my view, Mr Reseigh's work attendance was so poor as to form the basis for a valid reason to dismiss. Mr Reseigh's absences impacted the business's capacity to fulfil orders in a timely fashion and impacted on others including Mr Vanderlinden who was taken away from his managerial role to undertake Mr Reseigh's duties.

[171] In addition, Mr Reseigh was regularly late, resulting in the suboptimal use of assembly labour time, which also constitutes a valid reason in support of dismissal.

[172] I find that Stegbar has established a valid reason for the dismissal.

Was the Applicant notified of the valid reason?

[173] The Full Bench of the Fair Work Commission has held that s.387(c) of the Act is to be applied in a common sense way to ensure that the Applicant has been treated fairly, and does not necessarily require strict formalities in the sense of conducting a meeting with the employee to inform them of the reasons for the proposed dismissal, or providing the employee with an opportunity to address the employer's concerns in writing.[89]

[174] The correspondence submitted indicated that many discussions occurred with respect to Mr Reseigh's work attendance and that on multiple occasions he was advised that if his attendance did not improve he would be subject to sanction up to and including dismissal. I accept that Mr Reseigh was upset at being dismissed but he could not reasonably have been surprised.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[175] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[90] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[91]

[176] Stegbar repeatedly raised with Mr Reseigh over an extended period of time its concerns with his late attendance and absences.

[177] Whilst I accept Mr Reseigh was not expressly warned that Stegbar was considering dismissing him at the meeting on 21 May 2019, he had been repeatedly advised previously that if his attendance did not improve his employment would be at risk. Whilst it would have been preferable to advise Mr Reseigh that Stegbar was considering his dismissal, the meeting on 20 May 2019 allowed Mr Reseigh an opportunity, which he used, to respond to the attendance issue.

[178] I also accept that Mr Reseigh was not able to comment on Dr Ganesan's report. The report however did not include any medical opinion, and merely restated the information provided by Mr Reseigh. Whilst it would have been preferable for Stegbar to have referred to Dr Ganesan's report on 21 May 2019, it does not appear that Mr Reseigh was disadvantaged by this as the details it provided were within his knowledge.

[179] Having regard to the matters referred to above, I find that Mr Reseigh was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made, and that any technical failure did not have an impact on the outcome.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[180] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.[92]

[181] Mr Reseigh had the benefit of the attendance of his Union representative Mr Kirner at all relevant times.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[182] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[183] While the Act recognises that "small business are genuinely different in nature both organisationally and operationally",[93] it does not follow that such an employer's procedures in effecting a dismissal can be entirely devoid of fairness.

[184] The Respondent is a large organisation.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

[185] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees "even when implementing something as difficult and unpleasant as the termination of a person's employment."[94]

[186] The Respondent had in house dedicated human resource management specialists and expertise.

[187] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

[188] I have considered the impact of Mr Reseigh's application for leave made through Mr Kirner whilst Mr Reseigh was suspended. Stegbar did not respond to the application. In the circumstances I do not believe that Stegbar unreasonably refused to grant leave.

[189] I have taken into account Mr Reseigh's length of employment.

[190] I have also taken into account Mr Reseigh's personal circumstances, the turmoil that he was experiencing at that point in his life, and the impact on him of the dismissal.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[191] I have made findings in relation to each matter specified in s.387 as relevant.

[192] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[95]

[193] Having considered each of the matters specified in s.387 of the Act, I am not satisfied that the dismissal of the Applicant was harsh, or unjust, or unreasonable.

[194] Having found that the dismissal was not harsh, unjust or unreasonable, the Application is dismissed.

[195] An Order[96] reflecting this decision will be issued.

[4] Exhibit A1, Exhibit A2 (second statement).

[13] PN105. See Exhibit R2, attachment MV2.

[50] See Exhibit R2, attachment MV4 which is an extract from Mr Vanderlinden's diary detailing instances of absences and lateness.

[65] See notes in Exhibit R6, attachment GP4.

[70] Exhibit R4. The report is also an attachment to Exhibit R6.

[74] E.g. PN 497, 919, 926, 939,965, 1058, 1081.

[79] Hyde v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd [2018] FWCFB 3989.

[80] CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005.

[81] Smith and others v Moore Paragon Australia Ltd PR942856.

[82] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[83] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[85] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

[86] Edwards v Justice Giudice [1999] FCA 1836, [7].

[87] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[88] Edwards v Justice Giudice [1999] FCA 1836, [7].

[89] Pitts v AGC Industries [2013] FWCFB 9196, [54] referring also to Gibson v Bosmac Pty Ltd (1995) 60 IR 1; cited and adopted in RMIT v Asher (2010) 194 IR 1.

[90] RMIT v Asher (2010) 194 IR 1, 14-15.

[91] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[92] Fair Work Act 2009 (Cth) s.387(d).

[93] Williams v Top Image Hair Design [2012] FWA 9517, [40].

[94] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].

[95] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[96] PR713427.

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