s.365 - General protections

Application to deal with contraventions involving dismissal; transfer to a safe job; paid no safe job leave; unpaid parental leave; conduct, or a course of conduct, engaged in by her employer

• [1] Ms Holly Cederman (the Applicant) applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The Applicant submitted that Oleochem Project Management Limited (the Respondent) contravened one or more of the general protections provisions under the Act.

• [2] The preliminary issue the Commission is required to determine is whether the Respondent dismissed the Applicant in circumstances where the Applicant resigned from her employment on 19 June 2023. Whilst the Applicant does not shy away from the fact that she resigned, her argument is that the actions of the Respondent during her pregnancy and postpartum period (the 10 months or so of her parental leave) were detrimental to her employment, pressured her directly and indirectly, and left her with no alternative but to resign.

• [3] The Applicant started work with the Respondent in 2013 as an offshore production chemist. In late 2021, she was working three weeks on and three weeks off (3:3) on a fly-in-fly-out (FIFO) deployment to a floating production, storage, and offloading vessel, known as the 'Ningaloo Vision'. The Ningaloo Vision was located in the waters of North-West Western Australia and was operated by a client of the Respondent, Santos.[1] It was at this time that the Applicant became pregnant and the employment relationship that had been relatively free from any controversy for over eight years, became problematic.

• [4] As noted, in respect of the dismissal aspect of her claim, the Applicant relies upon the Respondent's course of conduct. That conduct included, amongst other things, the Respondent's purported failure to provide an 'appropriate safe job' or to pay her any wages for 'safe job leave', the Respondent's dispute about the Applicant's return-to-work date after her unpaid parental leave, the Respondent's purported failure to pay personal leave entitlements notwithstanding occasions of absence having been supported by legitimate medical certificates, and a refusal to grant the Applicant long service leave.

• [5] The Respondent is said to have a small office in Perth, Western Australia, with seven employees being based in this country, although at times the number can fluctuate up to fourteen. It forms part of a larger group trading as Oleochem Project Management (OPM),[2] a group based out of Aberdeen, Scotland. The OPM group provides integrated services to clients predominately in the mining, resources, and industrial production sectors. Those services include consultancy and the supply of production chemists, laboratory equipment, laboratory modules and training for laboratory uses.[3] The Perth office of the Respondent was supported by Mr Macsporran, a director of the OPM group, in addition to an external expert human resources consultancy.[4]

• [6] The Respondent objected to the application on the basis the Applicant was not dismissed within the meaning of s 386 of the Act. That objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[5] Section 365 relevantly provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [7] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act to, for example, conduct a conference.[6] Therefore, and as noted, the discrete issue for determination is whether the Applicant was 'dismissed' from her employment within the meaning of s 386(1)(a) or/and (b) of the Act.

• [8] As to the issue that this Commission is obliged to determine, the short answer to that question is that the Applicant was 'dismissed' by the Respondent as that term is understood by reference to s 386(1)(b).

• [9] I have concluded that the Applicant did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. Having decided that the Applicant was dismissed, she is now entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute. Further, it proves unnecessary to consider whether s 386(1)(a) was enlivened given the abovementioned conclusion and in any event, whilst the Applicant purported to rely upon this subsection, her materials were not suggestive of the same. While the reasons for the decision follow, the next steps concerning the programming of this application can be found at paragraphs [267]-[270].

• [10] The background to this matter was provided in the form of a 137-page personal statement written by the Applicant, in which the Applicant had conflated her submissions with her evidence. In addition, the Applicant filed 348 pages of other documentary evidence, and 35 pages of submissions and evidence in reply.

• [11] The Respondent relied on the evidence of Mr Macsporran, who had been a director of OPM since September 2014. Mr Macsporran was based out of Aberdeen, Scotland, and assumed responsibility for the day-to-day: (a) directing, controlling, and overseeing business operations; (b) maintaining financial status and budgets; (c) management of human resources; (d) liaising with clients and suppliers regarding offshore laboratory services contracts and operations; (e) training of production chemists and laboratory users; and (f) helping with the completion of competency assessments and auditing processes.[7]

• [12] It was uncontroversial that the Applicant was employed pursuant to an offer of employment dated 25 January 2013 (OOE)[8] and an employment contract dated 25 January 2013 (employment contract).[9]

• [13] The OOE set out that the Applicant's position was that of 'Offshore Production Chemist', she was employed on a fixed task basis, and her principal place of work was the Apache FPSO 'Ningaloo Vision'.

• [14] Relevant terms of that employment contract included:

5.1 You are employed primarily to work on the Apache 'Ningaloo Vision' project.

5.2 Your employment will be on a fixed task basis and will terminate when Oleochem's contract with Apache Energy Limited on the Ningaloo Vision FPSO expires, with no expectation of ongoing employment...

6.1 You will be employed in the classification set out in your letter of employment.

6.2 You will perform duties in accordance with the job description provided to you by Oleochem.

6.3 In addition to the duties mentioned at 6.1 above, Oleochem may require you to carry out work of any nature that is within your level of skill and competence.

Your hours of work average to 42 per week over the roster cycle. Weekly hours compromise of 38 ordinary hours and 4 reasonable additional hours.

7.2 All time spent travelling to and from your designated point of hire will be in your own time.

7.3 Your ordinary hours may be rostered at any time throughout the 24 hours of the day and on any 7 days of the week (including Saturday, Sunday, or public holidays). Your remuneration includes and amount to compensate for this.

The roster cycle operates on an even time basis and comprises a 42 day even time cycle based on an on-duty period of 21 days followed by an off-duty period of 21 days.

9.1 Your remuneration shall be in accordance with your letter of employment.

9.3 Payment of remuneration is dependent upon the submission of timesheets to Oleochem before or on the last day of each calendar month.

9.4 Timesheets mentioned at sub clause 9.3 shall relate to work performed by you during that month...

Annual leave is incorporated into your rostered off duty time as set out in clause 8.

10.2 On the termination of your employment, any annual leave accrued, but not taken shall be paid to you at your normal rate of pay.

11.1 For each year of service with Oleochem you are entitled to 10 days of paid personal/carer's leave.

11.2 Your entitlement to paid personal/carer's leave accrues progressively during a year of service according to your ordinary hours of work, and accumulates from year to year.

11.3 Personal leave comprises sick leave and carer's leave which may be taken as follows:

a) paid sick leave may be taken because of your personal illness, or injury;

b) paid carer's leave may be taken to provide care or support to a member of your immediate family or a member of your household who requires care of support because of:

i) a personal illness, or injury, of the member; or

11.4 In the event of your absence in accordance with subclause 11.3, you may, upon application, be paid for ordinary time lost from work as a result of such absence.

11.5 Oleochem may request you to provide evidence to its satisfaction (e.g. a medical certificate) for absences in accordance with subclause 11.3...

16.1 Your point of hire will be at an airport nominated by Oleochem.[10]

• [15] The Applicant's personal statement set out a chronology of events that commenced on or around 9 December 2021.

• [16] From the materials filed, it is apparent that on 1 December 2021, in light of her pregnancy and the necessity for a 'safe job', the Applicant provided to the Respondent a personal risk assessment of her position.[11] In her email to the Respondent dated 1 December 2021, which attached the Applicant's 'personal risk assessment', the Applicant outlined the continual safety issues of working offshore whilst pregnant.[12] The Applicant concluded the email with the following statement:

I will not require access to site/offshore for the duration of the pregnancy, as per the fair work act, and as supported by a GP and a medical certificate, and therefore there is no requirement to know my vaccination status as it is irrelevant until im [sic] required on site.[13]

• [17] The medical certificate referred to by the Applicant in her email dated 1 December 2021, was dated 24 November 2021. It stated:

This is to certify that Ms Holly Cederman has a medical condition (pregnancy) and under the Fair Work Act she is entitled to move to a safe work environment minimising her exposure to chemicals during her pregnancy.[14]

• [18] On 9 December 2021, Mr Macsporran emailed the Applicant informing her that the role requirements (of her position) were being reviewed in line with the medical information she had provided, and consideration would be given to whether there were any roles available offshore or in Perth that did not expose her to chemicals as per the limitation in her medical certificate.[15]

• [19] The Applicant said that in response to Mr Macsporran's email she felt stressed and anxious about the thought of working offshore whilst pregnant and so she obtained another medical certificate for the 'safe job' specifically stating her inability to work offshore.[16] It appears that this particular medical certificate was provided to the Respondent following a meeting that took place on 7 January 2022 (see paragraph [24] of this decision).

• [20] On 15 December 2021, whilst the Applicant was on personal leave, Mr Macsporran requested a meeting with her.[17]

• [21] By 22 December 2021, the Applicant said she had not received a phone call from the Respondent to discuss the 'safe job', so she emailed Mr Macsporran providing her phone number.[18] Whilst the Applicant said that Mr Macsporran said he would call her on 7 January 2022, she noted that this was a time when she was on her rostered off period.[19]

• [22] A phone call between Mr Macsporran and the Applicant took place on 7 January 2022 in which, according to the Applicant, three options were broached to accommodate the Applicant's circumstances in respect of a 'safe job'.[20] The first option was said to be an offshore position, the second was working onshore from the Respondent's Perth office and the third, working from home.[21] The Applicant said that she explained to Mr Macsporran that the third option was ideal for her and noted that she lived interstate (i.e. not in Perth).[22] The Applicant stated that Mr Macsporran then expressed a preference for a 'hybrid' of option two and option three - that was working from the Perth office and from home.[23] The Applicant said that the only reason Mr Macsporran gave in support of the 'hybrid' arrangement was that it would be good for 'Louise' in administration to see the Applicant and obtain a weekly update.[24]

• [23] It appears that the Applicant confirmed that she could definitely work from home and confirmed she was not located in Perth (notwithstanding it was her point of hire). Mr Macsporran asked whether it was okay for the Applicant to come back to work from that day onwards (presumedly 7 January 2022).[25] The Applicant said that she queried with Mr Macsporran the hours and roster and he informed her that the company would need to look into their obligations.[26] The Applicant said that Mr Macsporran said that the usual company return-to-work process in circumstances where someone had been off on an extended period was to conduct a medical to prove that the person was fit to return to work.[27] The Applicant said that Mr Macsporran mentioned conducting the medical assessment in Adelaide and that he would ask 'HR' about it.[28] The Applicant further noted that Mr Macsporran expressed a preference for her to work Monday to Friday because it would tie in with when he could send emails and keep her updated.[29]

• [24] At the meeting on 7 January 2022, the Applicant appears to have advised Mr Macsporran that offshore work would not be an option as she had a medical certificate to that effect, which she could send through.[30] The medical certificate dated 21 December 2021 set out:

Miss Holly Cederman is...pregnant and would like to be considered for a position at her company that is a safe job as per the Safe work Act on shore considering her pregnancy. The job ideally should have no exposure to chemicals hazardous to pregnancy and not be teratogenic. Ideally a job onshore would be advisable to allow for adequate access to medical help in case of a mishap.[31]

• [25] On 12 January 2022, the Respondent confirmed that the Applicant was in Adelaide and that a medical would be arranged for 14 or 17 January 2022.[32] The Applicant said that this time was on her rostered period off.[33] The Applicant further observed that the Respondent had emailed her several times during her rostered period off.[34] The Applicant said that she advised of her unavailability at that time as she was rostered off and said that she could be available on 24-26 January 2022.[35]

• [26] On 16 January 2022, Mr Macsporran emailed the Applicant and advised that whilst she was signed off sick for offshore work and not onshore work, until the Applicant had a 'medical' her sick pay would be placed on hold as her current medical certificate did not cover office work and there was no risk to her pregnancy.[36] According to the Applicant, the email continued that the Applicant had an obligation under the Act to provide evidence that she could still work as a 'safe job' had been found for her hence the reason to attend a medical - to enable expert advice and move forward with an alternative job.[37]

• [27] On 24 January 2022, emails were exchanged between Mr Macsporran and the Applicant, in which Mr Macsporran clarified:

For clarity - you are not due back on the 27th January. The safe job that we have available for you is office-based, Monday to Friday (with the same ordinary hours of work as the Offshore Chemist role). We are really trying to work with you on providing you with a safe job but until we receive confirmation that you are fit to return to work then we cannot transfer you to a safe job. Your sick pay will continue to be on hold until we receive a doctor's note.[38]

• [28] The Applicant said that in response to Mr Macsporran's email she reiterated her contractual entitlements including her work roster and noting that she had not agreed upon different working hours.[39] The Applicant said that she further advised the Respondent that it was to make no other changes to the terms and conditions of her employment.[40]

• [29] On 27 January 2022, Mr Macsporran emailed the Applicant highlighting a lack of cooperation on her behalf and noting that the company had repeatedly asked the Applicant to attend a 'medical' for the purpose of assessing her fitness for work and that she had declined. The email continued that if the Applicant continued to breach a lawful and reasonable direction the company would have no option but to consider taking further action, up to and including the termination of her employment.[41]

• [30] On 28 January 2022 and 4 February 2022, Mr Macsporran sent emails to the Applicant confirming receipt of medical notes.[42]

• [31] The Applicant stated that in February 2022 a case with the Fair Work Ombudsman (FWO) was initiated regarding the management of her 'safe job', with the case ending in March 2022, as the FWO was said to have referred the matter to the 'Commission'.[43]

• [32] The Applicant stated that on 5 February 2022 she received an email from Mr Macsporran whilst she was on personal leave, stating that a timesheet was not required as she was no longer classified offshore and was therefore not on a roster.[44] The Applicant stated that the company mentioned 'unauthorised absences' for periods when no sick leave note had been received, but the Applicant notes that she had followed the roster regarding the provision of medical certificates (presumedly), and therefore had no unexplained absences.[45]

• [33] A medical appointment was scheduled with Sonic Health Plus in Adelaide on 11 February 2022, at a time when the Applicant states she was on personal leave.[46] The Applicant did not attend the appointment, having obtained a medical certificate for the period 11 February 2022 until 18 February 2022.[47]

• [34] On 17 February 2022, Mr Macsporran emailed the Applicant to express disappointment in her having missed five medical appointments that had been booked for her.[48] The Applicant stated that she had supplied medical certificates for all absences or the medical appointments had been booked during her rostered off periods therefore she considered she had a right to decline.[49]

• [35] The Respondent booked a further medical appointment for the Applicant on 18 February 2022, noting that if she did not attend her employment may be terminated.[50]

• [36] The Applicant did not attend the appointment, having emailed the Respondent to explain that she had provided medical certificates for all unattended work-related activities and advised as soon as possible if unable to make an appointment.[51] The Applicant further advised in her email dated 17 February 2022 that her medical certificates were evidence for the 'safe job', which while lacking in written detail about whether she could work or was fit for work, the Act made no mention of the type of medical to be conducted for a 'safe job' - and that it was only if requested that she was to supply a medical certificate.[52] The Applicant asked that Respondent cancel the medical appointment and she would obtain another medical certificate from her private doctor stating she was fit to work as per the 'safe job' and the Act.[53]

• [37] On that same day, 17 February 2022, the Applicant submitted a dispute resolution form to the Respondent.[54] The Applicant states that the Respondent did not respond to the dispute resolution form until 8 April 2022.[55]

• [38] On 18 February 2022, whilst the Applicant was on personal leave, Mr Macsporran emailed the Applicant informing her that the company would not accept the private medical certificate and she was to attend the medical appointment on 22 February 2022 - a failure to do so could result in the termination of her employment.[56]

• [39] On 20 February 2022, the Applicant emailed the Respondent advising that the health provider selected by the Respondent required evidence of vaccination for COVID-19 before she was able to enter the clinic and that this was potential discrimination, a human rights breach, and a breach of the 'Privacy Act' (presumedly the Privacy Act 1988 (Cth)).[57]

• [40] On that same date, Mr Macsporran emailed a reply stating that any issues regarding the health provider should have been raised on one of the six previous times the appointments had been scheduled.[58] Mr Macsporran again informed the Applicant that if she continued to breach a lawful and reasonable direction there would be no option but to consider taking further action including dismissal.[59]

• [41] The Applicant responded to Mr Macsporran's email dated 21 February 2022 in which he informed the Applicant she had one last chance to attend a medical appointment. In her response dated 22 February 2022, the Applicant informed the Respondent of her rights regarding the choice of medical provider and that the Respondent had ten days in which to clarify under what law or contract the Respondent was refusing to accept legitimate medical certificates obtained through a private doctor.[60]

• [42] On 23 February 2022, Mr Macsporran emailed the Applicant reiterating that the company would not accept a note unless from the Respondent's medical provider.[61] On that same day, in accordance with the Respondent's instructions, the Applicant attended the medical appointment arranged by the Respondent.[62] However, according to the Applicant she was advised by the medical practitioner of the Respondent that she was to go to her regular general practitioner as Sonic Health Plus was unable to complete the medical requested regarding a 'safe job'.[63]

• [43] According to the Applicant, on 23 February 2022 she advised the Respondent that Sonic Health Plus was unable to complete the medical for her return to work regarding a 'safe job'.[64] Whilst an issue appears to have arisen concerning the Applicant not providing medical information in respect of the pregnancy to Sonic Health Plus, email correspondence solicited by the Applicant from Sonic Health Plus informs that the Applicant was booked for a WorkCover assessment and not an employment medical.[65]

• [44] On 28 February 2022, Mr Macsporran sent an email confirming acceptance of a medical certificate supplied by the Applicant on 21 February 2022 that stated that she was fit for work and noted the certificate was from a new practice and it made no reference to previous certificates, and therefore it constituted evidence that the Applicant was fit to return to her original position as an offshore production chemist.[66] The Respondent requested that the Applicant provide her vaccination status for the purpose of returning to offshore work.[67] The medical certificate dated 21 February 2022 read:

In my opinion she is fit to return to work from 21/02/2022[68]

• [45] On that same date, the Applicant responded to Mr Macsporran by email stating that she was pregnant, entitled to a 'safe job' or, in the absence of a 'safe job', 'no safe job payment'.[69] The Applicant thereafter referred to the medical certificates she had provided to date.[70]

• [46] By 1 March 2022, the Applicant had, in addition, placed the Respondent on notice that she had a pay dispute with it for the period of January 2022 and requested the provision of payslips, information on how her pay was calculated, and for three timesheets to be resent to her as she believed she had been underpaid.[71]

• [47] On 1 March 2022, Mr Macsporran emailed the Applicant that the medical certificate that the Respondent had received on 21 February 2022 (Annexure 61) was concise and clear - it mentioned neither pregnancy nor the requirement for a 'safe job', and constituted evidence that the Applicant was fit to return to work.[72] Mr Macsporran advised that the 'notes' that had been submitted to date were at best unclear.[73] The Respondent was said to have instructed:

In order to transfer you to a safe job we need evidence that you are fit to return to work AND that it is inadvisable for you to continue in the Offshore Chemist role. This is required on one note and not split over two separate notes, from separate doctors, at separate medical suppliers over two months apart.[74]

• [48] On 1 March 2022, the Respondent sought the Applicant's consent for her to participate in an independent medical examination with a practitioner selected by the Respondent to determine her fitness for offshore work, and if not fit for offshore work, the duties she was able to perform.[75]

• [49] Instead, on 2 March 2022, the Applicant obtained a fourth medical certificate for a 'safe job' (see Annexure 76), and also obtained a medical note outlining the stress the Respondent's actions were having on her regarding the transfer to the 'safe job' for the duration of her pregnancy.[76] The Applicant explained that having been advised by Sonic Health Plus to obtain a medical assessment or report from her general practitioner, she did just that.

• [50] The medical certificate (the fourth medical certificate) dated 2 March 2022 set out:

Miss Holly Cederman (14/04/1988) is pregnant and will be unfit to work her normal job (including working offshore) due to possible cause of genetic defects and teratogenicity from exposure to hazardous chemicals from 02/03/2022 to 30/06/2022 inclusive. Moreover, it is not advisable for her to work in remote, isolated, high risk environment where medical care is limited due to safety issues related to her pregnancy. Also, it is not advisable for her to do underwater helicopter escape training for the duration of pregnancy as well as wearing EBS lifejackets. Heavy lifting over 10kg is not recommended as well. She is not able to evacuate safely in emergency situations or use large fire extinguishers. Prolonged walking, standing, climbing stairs and ladders, working in hot and humid condition is prohibited too. However, she is completely fit to work alternative safe job for the period mentioned. Therefore, it is advised that she is transferred to a safe job onshore ( office type work from home) as per the fair work act for the duration of her pregnancy.

• [51] Further, by email dated 3 March 2022, the Applicant requested that the Respondent specifically reference the laws it relied upon to send her for an independent 'safe job' medical examination.[78]

• [52] In her email dated 3 March 2022, the Applicant noted that she had consented to working from home for the 'safe job' on two separate instances - written and verbal, thereby entering a contract with the Respondent.[79]

• [53] The Applicant said that in response to her email dated 3 March 2022, Mr Macsporran sent the following email dated 3 March 2022:

• - Consent to participate in an independent medical examination by the practitioner of Oleochem's choice to determine if you are fit to work offshore in your present condition, and if not, what duties you are fit to perform.

In the case that you are not fit to return to the offshore chemist position, we have a safe job available for you in our Perth office.

Please confirm that you consent to the above so that we can arrange a medical appointment.

Your pay will continue to be on hold until this is finalised.[80]

• [54] On 10 March 2022, the Applicant requested an update on her medical certificate that she had sent to the Respondent on 3 March 2022 (see the email at Annexure 81) and informed the Respondent that as per the roster in her contract she was due at work on 10 March 2022 and was, in accordance with her medical certificate (see Annexure 76), able to do office type work from home.[81] The Applicant thereafter sought from the Respondent an acknowledgement of the agreement to work from home for the 'safe job',[82] in addition to seeking from the Respondent reference to the specific Australian laws it relied upon that required her to see a medical provider approved by the Respondent.[83]

• [55] The Applicant again emailed the Respondent on 11 March 2022 (see Annexure 82) stating her ability to work as per the roster set out in her contract and the medical certificate supplied to the Respondent for the 'safe job' (see Annexure 76).[84] The Applicant similarly emailed the Respondent on 12 March 2022, [85] 13 March 2022,[86] and 14 March 2022.[87] Albeit on 13 March 2022, the Applicant initiated a Mental Health Care Plan with her doctor in response to the stress and anxiety she said she was experiencing from work.[88]

• [56] Perhaps predictably, Mr Macsporran emailed the Applicant on 14 March 2022, informing her that in order for her to return to work the Respondent required her to attend a medical appointment at the Respondent's approved medical supplier to assess her fitness for work and if not fit for offshore work, to advise on the duties she was able to perform.[89] Mr Macsporran further noted that if she was not fit to return to the offshore production chemist position, there was a 'safe job' available for her in the Perth office.[90]

• [57] On or around 11-15 March 2022, the Applicant filed a complaint against the Respondent and Mr Macsporran with the Australian Human Rights Commission (AHRC).[91] In that complaint, the Applicant contended she had been discriminated against because of pregnancy and that she had been victimised.[92] In respect of remedy, the Applicant sought the maintenance of her same roster, that her contractual rights would not be disregarded, that the Respondent uphold its agreement in respect of a 'safe job' working from home, and that she would be correctly paid for January 2022, amongst other matters.

• [58] On 15 March 2022, the Applicant also emailed Mr Macsporran stating her ability to work in accordance with her contract and medical certificate (see Annexure 76).[93] However, by 16 March 2022, the Applicant was feeling unwell during her rostered work period and obtained a medical certificate for 16 March 2022 until 18 March 2022, inclusive.[94] The Applicant's illness continued for the period 18 March 2022 to 25 March 2022.[95]

• [59] Whilst the Applicant emailed the Respondent on 26 and 27 March 2022, again stating her ability to work,[96] by 28 March 2022 the Applicant was feeling unwell due to a pregnancy-related illness and stress from the Respondent's purported management of her 'safe job', so she obtained a medical certificate for the period 28 March 2022 until 31 March 2022.[97]

• [60] The Applicant emailed the Respondent on 31 March 2022 to inform it of her last day of her swing as per her employment contract and that she would be due back at work on 21 April 2022.[98] The Applicant further emailed the Respondent twice on 1 April 2022 to inform it that she had not received any payment for February 2022 and that she required an update on the information request concerning payslips, pay calculations, and timesheets.[99]

• [61] On 8 April 2022, Mr Macsporran responded to the Applicant informing her, amongst other matters, that the medical certificates provided were general in nature and did not provide the necessary detail her situation necessitated and that before the Respondent could consider her preferences regarding a work location, hours/roster and duties, it was imperative that reasonable medical evidence was obtained to give the company a basis upon which to return the Applicant to work.[100]

• [62] Mr Macsporran's response further detailed that the Applicant had been asked on at least 15 separate occasions to attend an independent medical assessment and that the Respondent had made seven separate appointments for her.[101] The response further noted the Applicant's attendance at one of the appointments in Adelaide on 23 February 2022, and suggested that the Applicant had not engaged in the process to the requisite degree.[102] In respect to a dispute over pay, Mr Macsporran clarified that the Applicant had been paid personal leave for periods from 19 November 2021 until 2 February 2022, albeit the Applicant notes that the statement is incorrect as she was never paid for February 2022.[103] In respect of the dispute raised by the Applicant, Mr Macsporran noted that the company considered that its previous communications with the Applicant represented a considered and valid response to the same.[104]

• [63] In response to the Respondent's letter of 8 April 2022, the Applicant emailed the Respondent a reply on 16 June 2022, the content of which included:

In response to the following statement made by Oleochem (Page 1)... "Holly, as you know, you have been absent from the Oleochem Project Management Ltd (OPM) workplace since on or around 18th November 2021".

The above is a false statement; I have not been absent from Oleochem Project Management

I was on my rostered time off from 25.11.21 until 16.12.21, an entitlement of the roster within my contract that I have maintained for the duration of my employment.

I have maintained my entitlement and terms and conditions of employment of working the roster within my contract; this involves on-duty and off-duty time, 21 days on and 21 days off. I make note that Oleochem never offered an official consultation about a change in roster. I was not given any formal notice and supplied no evidence by Oleochem to show their entitlement to change the roster. I was never given the opportunity to discuss a change of roster with Oleochem. I never signed acceptance or approval, and never agreed to changes or gave my consent to a change in roster. Oleochem never asked permission to alter the terms of my employment.

I have not been on "unpaid leave" as Oleochem have tried to state; Oleochem were informed and provided evidence from 1.12.21 onwards of my pregnancy and the requirement for a safe job.

I have not had long or unexplained absences from work, all absences have been temporary with all personal leave/ sick leave having had a medical certificate supplied. I have been entitled to use accrued sick leave / personal leave. (All medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. See attachments).

The requirement for a safe job was first supplied to Oleochem on 1.12.21. This included a medical certificate stating a safe job requirement and detailed evidence from myself stating reasons why a safe job was required, as required by the fair work act.

All requirements for a safe job as per the fair work act were supplied to Oleochem in the attached medical certificates.

Upon Oleochem receiving supplied evidence as per the fair work act I was to be paid either;

no safe job pay if no appropriate safe job was supplied or;

Because Oleochem have continually not accepted legitimate genuine medical certificates/medical advice/medical evidence has meant that no safe job has been supplied, to date Oleochem have not upheld their legal obligation of providing no safe job pay.

Instances where I was unfit for work have been supported by a genuine medical certificate. My fitness for work has been covered by a medical certificate that gives a start date and end date to being unfit for work, thereby giving a clear timeframe for being able to return to work. During my on-duty time outside of the dates within the medical certificates I have been fit for work. I am not required to supply evidence that I am to "return to work", as I have never had any unexplained absences from work, all absences from work have been temporary and supported by medical evidence...

In response to the following statement made by Oleochem (Page 1)... "we cannot continue to accept the medical certificates you have provided to us from 7 January 2022 onwards because you have failed to address our concerns about the medical information being provided; specifically, it still remains unclear whether you are fit for work, what duties would be suitable and safe for you to perform and whether you could perform any duties at all offshore."

The above is a false statement, again the medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. I've obtained 4 medical certificates for the safe job, for Oleochem, with this is evidence I did not fail to address Oleochem's concerns. The certificates provided are very clear and do state I am fit for work, what duties would be suitable and safe for me to perform and whether I'm able to work offshore. Additionally, I have already attended a IMA as requested by Oleochem on the 23rd February 2022, where the outcome was that I was to see my regular doctor, to which I complied.

In response to the following statement made by Oleochem (Page 1)... "During our consultation with you it emerged that your contact details had changed (namely, your mobile number and your residential address). On 7 January 2022 you told us that you are based in Adelaide."

I am currently physically located in Adelaide. I have been in Adelaide for various reasons, mainly due to boarder closures and boarder restrictions due to the Covid-19 pandemic.

It is my postal address that has changed. Any postal mail can be sent to 101 Hartley Road, Flinders Park, SA.

In response to the following statement made by Oleochem (Page 2)... "the medical certificates you have provided to date OPM do not clarify whether you are fit for work, the duties you are fit to perform and whether you are fit to perform duties offshore or onshore (or both)."

Again, the above is a false statement, the medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. The certificates for the safe job covers that i am fit to work, what duties i can do and that I'm unable to work offshore. (see attached).

In response to the following statement made by Oleochem (Page 2)... "before we can consider your preferences regarding work location, hours/roster and duties, it is imperative that reasonable medical evidence is obtained that gives the business a basis upon which to return you to work in a manner that is safe, with OPM discharging its duty of care owed to you."

I have a clear understanding of my employment entitlements, they are not preferences, they are legal entitlements as per the fair work act and my contract with OPM. Again, I have not been absent from work for any unexplained or extended periods, as Oleochem were informed from 1.12.21 of my pregnancy and the requirement for a safe job. With all temporary absences covered by accrued sick leave / personal leave with supplied medical certificates. I have also attended the IMA as requested on the 23rd February 2022, and the outcome was to complete a medical with my usual doctor to which I complied. OPM has been able to discharge its duty of care owed to me as it is covered by all medical certificates supplied since 01.12.21.

In response to the following statement made by Oleochem (Page 2)... "Holly, to safely return you to work we require your cooperation. You have had the opportunity to provide your own detailed and unequivocal medical information but have not done so; OPM has been left with no option but to continue to seek clarity from you about your fitness for work."

The above is a false statement by Oleochem as I have provided detailed and unequivocal medical information. I have fully co-operated with OPM by providing legitimate medical certificates/medical evidence, including attending a IMA as requested on the 23rd February 2022, and the outcome was to complete a medical with my usual doctor to which I complied.

I have not been absent from work for any unexplained or extended periods, as Oleochem were informed from 1.12.21 of my pregnancy and the requirement for a safe job. With all temporary absences covered by accrued sick leave / personal leave with supplied medical certificates.

I state again, I have supplied 4 medical certificates for the safe job since 1.12.21. (All medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. See attachments).

The safe job certificates cover that i am fit to work, what duties i can do and that im unable to work offshore. OPM have made the choice not to accept legally binding genuine medical certificates, this action is not my doing.

In response to the following statement made by Oleochem (Page 2)... "We once again invite you to either share with us a current, clear, credible and detailed medical report addressing in totality your fitness for work and request for safe work or we again ask that you attend and properly engage in an IMA to ascertain same."

Again, I have already complied with both of these requests from Oleochem; I attended a IMA on 23rd February 2022, and engaged entirely in that request, the outcome was that I obtain another medial certificate from my regular doctor, to which I complied and supplied to Oleochem.

I have already supplied 4 medical certificates relating to a safe job. (All medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. See attachments).

I make note that there is no requirement in the fair work act regarding safe jobs about completing a "medical report" or "engaging in an IMA". The only requirement was to supply a medical certificate if requested.

In response to the following statement made by Oleochem (Page 2)... "from 3 February 2022 we expressed to you our concern about the information contained in the medical certificates including the fact the information was, variously, vague, inconsistent. We made it clear to you that we did not consider the certificates amounted to reasonable evidence in support of your claims, whether for paid personal leave or a change in your working arrangement more generally. Between 7 January 2022 and the date of this letter we have made multiple requests for you to provide reasonable evidence in support of the claims you were making, but these unfortunately have not been forthcoming.

Again, the statement above is a false statement as reasonable evidence has been supplied in the form of various medical certificates/medical advice since 1.12.21 that is detailed and genuine. It is evidence having come from various medical practitioners who ALL support the same requirement for a safe job. (All medical certificates supplied to date give evidence that would satisfy a reasonable person. The medical certificates written and signed by the doctors have been within medical guidelines, they are legal documents and written with sufficient detail and are regarded as irrefutable proof. See attachments).

The onus is now on Oleochem to produce evidence that refutes that reasonable evidence has been supplied.

In response to the following statement by Oleochem (Page 3)... "because you have not been able to provide us with the medical information OPM reasonably requires to either support a claim for paid personal leave or, alternatively, provide duties to you that are safe to perform and that you are fit to perform, you have been on unpaid leave since 3 February 2022."

I have supplied requested medical information to OPM in the form of legitimate and genuine medical certificates. While Oleochem has the right to request a medical certificate as per the fair work act and safe jobs, nowhere within the act does it mention having to do a IMA....[105]

• [64] A meeting was scheduled for 18 April 2022. However, on 13 April 2022, the Applicant asked for it to be rescheduled due to a pregnancy-related illness.[106] The meeting was rescheduled to 19 April 2022, which the Applicant again noted was in her rostered off duty period.[107] The Applicant has provided detailed evidence about the content of the meeting of 18 April 2022, much of which hinged on the sufficiency of medical certificates she had provided, illnesses purported, and what would be required for the company to return her to work and if so, in what role.[108]

• [65] On 20 April 2022, the Applicant received the Respondent's response to her application in the AHRC.[109] The Applicant said that the response left her completely shattered and altered her relationship with the Respondent further - her trust diminished.[110]

• [66] The Applicant emailed the Respondent on 21 April 2022, noting that she was able to work, but by 26 April 2022 she was unwell due to a pregnancy-related illness and stress from the Respondent's management of her 'safe job' and she therefore obtained a medical certificate for the period 26 April 2022 until 29 April 2022.[111]

• [67] The Applicant emailed the Respondent on 30 April 2022, noting that she was able to work, but by 3 May 2022 she was unwell due to a pregnancy-related illness and stress from the Respondent's management of her 'safe job' and she therefore obtained a medical certificate for the period 3 May 2022 until 10 May 2022.[112]

• [68] The Applicant said that on 4 May 2022, whilst she was on personal leave, Mr Macsporran emailed her a letter in response to questions she had raised through the process at the AHRC (AHRC Letter).[113] The Applicant emailed a responsive letter to the AHRC Letter on 15 June 2022, which reiterated that she had provided evidence in support of a 'safe job'.[114]

• [69] The Applicant emailed the Respondent on 11 May 2022, noting that she was able to work as per the roster within her employment contract, and on 18 May 2022, she asked the Respondent to supply more information regarding details for the requested independent medical examination, specifically a letter that the company could supply to the relevant doctor.[115] The Applicant said she reminded the Respondent that she was on her off-duty period until 2 June 2022.[116]

• [70] On 23 May 2022, the Applicant withdrew her case in the AHRC. She said she felt overwhelmed by the entire situation and was 31 weeks pregnant.[117]

• [71] On 24 May 2022, Mr Macsporran emailed the Applicant stating that the Respondent's priority was to return her to work safely, for which the Respondent required a medico-legal report. Mr Macsporran asked the Applicant to confirm that she would go ahead with an 'IMA' by providing confirmation of: (i) the time and date of the arranged IMA from the medical provider; and (ii) the medical practitioner who would conduct the IMA.[118] Mr Macsporran's email continued that based on the agreement of the selection of the doctor preparing the IMA, the Respondent would provide the medical certificates provided to date and a letter, which would include questions aimed at clarifying suitable and safe work duties that the Applicant could undertake.[119]

• [72] The Applicant stated that she emailed the Respondent on 2 June 2022 reminding them that she was due back for her on-duty period as of that day, but she was unfit for work duties and would apply for a medical certificate (which was obtained for the period 3 June 2022 until 10 June 2022).[120]

• [73] The Applicant emailed the Respondent on 10 June 2022 querying why she had not yet received the information she had requested on 1 March 2022[121] and on 11 June 2022, she again emailed the Respondent reminding it that she was able to work as per her roster (it being day 10 of the 21 days on duty).[122]

• [74] On 11 June 2022, Mr Macsporran emailed the Applicant stating that she had not yet supplied the information required to either safely return to work or to confirm any form of paid leave other than leave without pay.[123] The Applicant emailed letters to Mr Macsporran on 15 June 2022 and 16 June 2022 - see paragraphs [63] and [68].

• [75] On 23 June 2022, the Applicant emailed the Respondent to remind it that it was her last day of her on-duty period for the 21-day roster, and informed the Respondent that she was now on her off-duty period until 14 July 2022.[124] In addition, the Applicant said that she queried with the Respondent as to why she had received no communication regarding her request for long service leave.[125]

• [76] The Applicant sent subsequent emails to the Respondent about an entitlement to long service leave, which the Applicant had intended to start on 14 July 2022. Those emails were sent on 29 June 2022, 4 July 2022, 7 July 2022, and 11 July 2022.[126]

• [77] On 12 July 2022, the Respondent responded to the Applicant's request for long service leave and other issues that the Applicant had previously raised.[127] The Respondent informed the Applicant that it was company policy for any employee who had had an extended period of absence to complete a return-to-work medical so that they can return to work safely.[128] The Respondent continued that since the Applicant's first absence in mid-November it had been looking to return her to work safely.[129] The Respondent noted that it had engaged in significant consultation with the Applicant over the past nine months, including considerable time and effort to look for an alternative that would satisfy all parties, but as of the date of its letter had not been able to come to an agreement. The Respondent observed that in its letter of 8 April 2022, it detailed five options for moving forward - which included the fifth option ('you put an option to us that we have not yet considered').[130] The Respondent noted that as far as it understood, there was only one option given by the Applicant that related to returning to work - for it to reassess previously submitted medical certificates.[131] On that point the Respondent observed that it had not yet received any substantial change/additional evidence to the medical certificates already provided, so it was unable to come to any other conclusion than a return-to-work medical would be required to enable it to help to return the Applicant to work safely.[132]

• [78] The Applicant replied to the Respondent's correspondence of 12 July 2022, noting, among other matters, that access to long service leave was option four and that it was very clear to the Applicant that the Respondent had offered her long service leave, which she had accepted, and therefore she had entered into an agreement with the Respondent about her long service leave.[133] However, on that same day, Mr Macsporran emailed the Applicant stating that an employee was only entitled to take long service leave after ten years of continuous employment.[134] Over the course of 14 July 2022, further correspondence passed between the Applicant and Mr Macsporran regarding the issue of long service leave, with Mr Macsporran ultimately informing the Applicant that he was not going to go back and forward on the issue and that long service leave was not granted as the Applicant was not entitled to the same.[135]

• [79] On 24 July 2022, the Applicant emailed the Respondent advising it that this was her tenth day of her on-duty period and confirmed her ability to work past her due date of 23 July 2022, as she had not yet given birth at 39 weeks' gestation.[136]

• [80] On 1 August 2022, the Applicant gave birth, and on 3 August 2022, she emailed the Respondent informing it that she had given birth and that she would be on parental leave from 1 August 2022.[137]

• [81] In response to the Applicant's notification that she had given birth, Mr Macsporran emailed a response to the Applicant informing her that the Act prescribes that an employee may commence their unpaid parental leave six weeks prior to the expected date of birth of the child, unless otherwise agreed by the employer and therefore her parental leave commenced on 11 June 2022, six weeks prior to 23 July 2022 - which was the expected date of birth of the Applicant's child.

• [82] On 30 August 2022, the Applicant emailed the Respondent stating that she had not made an agreement with the Respondent for her parental leave to start six weeks prior to her child's expected date of birth, therefore the start of her parental leave was 1 August 2022, the date of her child's actual birth, and not 11 June 2022.[138]

• [83] On 31 August 2022, Mr Macsporran emailed the Applicant stating that an employee may commence their unpaid parental leave six weeks prior to the expected date of birth of the child, unless otherwise agreed by the employer.[139] Mr Macsporran again stated that the Respondent considered that the unpaid parental leave commenced on 11 June 2022 and would therefore end on 11 June 2023.[140]

• [84] On 1 September 2022, the Applicant emailed the Respondent noting that it had never requested that she obtain a medical certificate six weeks prior to her expected due date and therefore she had every right to continue working.[141] The Applicant emphasised that her parental leave started on 1 August 2022.[142] Mr Macsporran replied on 1 September 2022 that the company had made its position known on both the commencement date of the Applicant's parental leave and her request for long service leave.[143]

• [85] On 6 October 2022, the Applicant emailed the Respondent requesting eight payslips.[144] As a response was not forthcoming, the Applicant emailed the Respondent again on 12 October 2022 reminding it of the request.[145] The Applicant said she received an email from Louise Evitt of the Respondent on 13 October 2022, in which Ms Evitt stated she had been away from the office but would request the payslips from payroll.[146] Ms Evitt noted that payslips were emailed directly to the Applicant and if that was not the case, the Applicant was to advise her.[147]

• [86] The Applicant was provided with payslips on 19 October 2022 for December 2020, January and February 2021 and February 2022.[148] It was noted that payslips had not been generated for March-June 2022, as the Applicant had not been accruing any leave entitlements.[149]

• [87] On 25 October 2022, the Applicant emailed the Respondent asking for access to her long service leave given she had been employed for ten years.[150] The Respondent declined the request on that same day, on the basis that the Applicant had not served ten years of continuous service.[151]

• [88] On 27 January 2023, Mr Macsporran emailed the Applicant asking her what her intention was with respect to returning to work.[152] The Applicant replied to the email on 3 February 2023, advising that she did not intend to shorten her parental leave and would advise if this changed, and that with regard to extending the period of leave, she had up to four weeks prior to the 12 month period of parental leave ending, to update the Respondent of her intentions regarding an extension of the leave.[153]

• [89] In her email dated 3 February 2023, the Applicant stated that her end date for her parental leave was 1 August 2023 and if the Respondent disputed this, it was to provide evidence where it had made a request under the Act regarding the provision of a medical certificate.[154]

• [90] By emails dated 4 February 2023, the Applicant sent a request for timesheets submitted to the Respondent over nine different months in addition to a copy of the Respondent's Return to Work Policy.[155] Mr Macsporran responded to the request on 6 February 2023 suggesting that as the timesheets had been submitted by the Applicant she should have copies of them.[156] On that same day, the Applicant responded by email noting that whilst she had tracked down some, she had not tracked down all of them and still sought timesheets for February 2020, January 2021 and April 2021.[157]

• [91] On 8 February 2023, the Applicant sent an email to the Respondent regarding further requests for copies of leave requests she had made from the start of her employment, timesheets that had been submitted, and clarification on how pay was calculated.[158]

• [92] On 10 February 2023, Mr Macsporran emailed the Applicant acknowledging the request for certain documents and a proposed meeting. In respect of the meeting, Mr Macsporran expressed that he considered it a great idea and asked that the Applicant inform as to her availability.[159]

• [93] The Applicant responded to Mr Macsporran on 11 May 2023, stating that the meeting could be arranged after the Respondent had supplied the documents requested - as she sought the meeting to have answers provided to questions she had.[160]

• [94] On 21 February 2023, 1 March 2023, and 12 March 2023, the Applicant emailed the Respondent seeking updates on when the documents requested would be provided.[161] On each occasion Mr Macsporran replied noting that operational matters had taken priority.[162] On 13 March 2023, Mr Macsporran further noted that he thought a meeting would still be a good idea and asked to arrange one.[163]

• [95] On 15 March 2023, the Applicant emailed the Respondent again requesting access to long service leave, noting that as of 26 February 2023 she had completed ten years of continuous service.[164] Mr Macsporran replied to the Applicant on that same day stating that as per his previous emails on the subject, any periods of unpaid leave did not count towards continuous service with the Respondent and therefore the Applicant was not entitled to long service leave under the Act.[165]

• [96] The Applicant stated that as she had received little cooperation from the Respondent (in respect of the documents requested), she contacted the FWO and on 27 March 2023, she emailed the Respondent with a formal letter attached from the FWO regarding access to employment documents that had been requested.[166] The Applicant noted that the documents could be emailed and there was no need to post them, and that there was no need for a meeting until after the documents had been provided.[167]

• [97] By email dated 28 March 2023, Mr Macsporran responded that the requested documents would be ready to view at the Respondent's office on Thursday afternoon or, if the Applicant was unavailable at that time, the documents would be sent out within the 14-day period.[168]

• [98] On 11 April 2023, Mr Macsporran emailed the Applicant asking questions about her parental leave and return to work, specifically whether she was planning to return to work when her parental leave had finished and informing her that the company would need at least eight weeks' advance notice of any changes to her parental leave end date of 12 June 2023.[169] In response, on 12 April 2023, the Applicant sent the correspondence she had emailed to the company on 3 February 2023, in which she had stated her understanding of her parental leave entitlements under the Act.[170]

• [99] On 12 April 2023, the Applicant further emailed the Respondent, asking that it supply the requested employment documents as the 14-day period had expired on 11 April 2023, and that such documents were to be emailed to the Applicant.[171]

• [100] On 20 April 2023, Mr Macsporran emailed the Applicant emphasising that the Respondent had tried to return the Applicant back to work safely, the Applicant had not provided a medical certificate that cleared her as fit to work beyond the '6-week' period in circumstances where the Respondent had received several medical certificates stating that the Applicant was unfit for work and unable to work due to pregnant-related illnesses.[172] Mr Macsporran further noted that the Applicant had been on unpaid leave since February 2022 and her parental leave commenced six weeks prior to the expected birth date of her child.[173]

• [101] The Applicant responded to Mr Macsporran's email on 22 April 2023.[174] In her response the Applicant reminded the Respondent of her rights under the Act that supported her start work date as 1 August 2023, as did the terms of her employment contract.[175] The Applicant noted that having to constantly remind the Respondent of her employment rights under the Act was placing undue pressure upon her and that she recommended that the Respondent obtain advice on employment matters.[176]

• [102] On 24 April 2023, Mr Macsporran emailed the Applicant stating that the company was confident that her parental leave commenced on 12 June 2023 and that it expected her to advise of her intentions to return to work or not, by 12 May 2023 - so that the company could plan accordingly.[177]

• [103] On 30 April 2023, the Applicant emailed the Respondent seeking clarification whether her role as a 'Laboratory Chemist' came under an industry or occupation award.[178] Mr Macsporran replied on 8 May 2023, stating that the Applicant's employment was under a common law contract and as her pay was above any Award pay and conditions, the Hydrocarbon Industry (Upstream) Award did not apply.[179] Mr Macsporran sent a further email to the Applicant that day, noting that as her parental leave commenced on 12 June 2022, the company was expecting her to advise of her intentions to return to work or not by 12 May 2023.[180]

• [104] On 15 May 2023, Mr Macsporran emailed the Applicant stating that it was four weeks before her expected return to work date on 12 June 2023 and no correspondence had been received regarding her intention to return to work.[181]

• [105] On 18 May 2023, the Applicant emailed the Respondent informing it of her return-to-work date (1 August 2023), as had been made clear by the FWO.[182]

• [106] On 26 May 2023, Mr Macsporran emailed the Applicant a letter stating that the company had still not been advised regarding her intention to return to work, and that she was expected to be present at work on 12 June 2023 in the Perth office.[183] Further, it was noted that as the Applicant would be returning after a long period of absence and as part of the company and client policy, the Applicant would be required to attend and complete a company induction, medical appointment and 'TFOET' with 'CA-EBS'.[184] The letter set out that what had been provided was a reasonable and lawful direction associated with the Applicant's employment, and a failure to comply with it may result in further consequences including unauthorised unpaid absences and/or potential disciplinary action which may include termination of employment.[185]

• [107] On 1 June 2023, the Applicant emailed the Respondent again stating that which she had been purportedly advised by the FWO - her return-to-work date was 1 August 2023, and it was her understanding that she had to provide four weeks' notice if wanting to request an extension of leave beyond the initial 12 months of parental leave.[186] The Applicant advised the Respondent that she did not intend to end her parental leave early and that having to constantly remind the Respondent of her employment rights under the Act was placing undue pressure upon her.[187] The Applicant added that she was on parental leave and asked that this be respected and she was open to communicating with the Respondent about upcoming work matters as she understood the importance and would abide by the requirements of the Act.[188]

• [108] On 1 June 2023, the Applicant emailed the Respondent requesting an update on the employee documents she had requested.[189] A response was forthcoming from the Respondent on 2 June 2023, in which the Applicant was advised that the documents had been posted to the address they had for her on file, on 5 April 2023.[190] The Applicant replied to the Respondent on 4 June 2023 noting that she did not have a reliable postal address and to send the documents to her email address.[191]

• [109] On 8 June 2023, Mr Macsporran emailed the Applicant setting out that the Respondent expected the Applicant to return to work after the conclusion of her parental leave on 12 June 2023.[192] It was further noted that non-compliance with this request may be treated as an unauthorised absence from work and/or failure to comply with a reasonable and lawful direction that could warrant subsequent action including potential disciplinary processes.[193] Mr Macsporran explained that if the Applicant was contemplating a request for an extension of unpaid leave, she was encouraged to submit it at the earliest opportunity irrespective of any current disagreement of required return-to-work dates.[194]

• [110] On 11 June 2023, the Applicant emailed the Respondent noting that its statement in its email dated 8 June 2023 that the company had not received correspondence from the Applicant regarding her intention to return to work was incorrect given the emails she had sent to the Respondent on 20 August 2022, 1 September 2022, 3 February 2023, 12 April 2023, 22 April 2023, 30 April 2023, 18 May 2023, and 1 June 2023. The Applicant confirmed that her return date was 1 August 2023.

• [111] On 20 June 2023, the Applicant tendered her resignation:

I am officially handing in my notice with my employment with Oleochem.

The reason for my termination of employment is because I have no confidence in my employer. My termination of employment is due to Oleochems treatment of me during my pregnancy and afterwards during my parental leave. I've felt there has been no other option other than to resign. Oleochem have failed to pay me my employment entitlements (no safe job pay and entitled sickpay) and continue to cause me grievances through their actions. I understand I am to give 2 months notice as per section 5.7 of my contract.

I would however ask this termination begin effective immediately or my employment end at the end of my parental leave date of 01/08/2023 (6 weeks from now). This would be adhering to section 5.8 of my contract, whereby myself and Oleochem can agree upon a shorter period of notice.

I no longer feel comfortable with Oleochem because of their treatment of me. I have spent over 10 years working for Oleochem and I feel truly disappointed by Oleochems actions during my pregnancy and afterwards. I feel it's best for me to leave now, as I do not feel comfortable interacting with Oleochem. The past 20 months of employment with Oleochem has been an absolute nightmare for me and caused me great distress.

• [112] In response to the assertion that the Applicant was not under the threat of termination at the time she resigned, the Applicant gave evidence that the Respondent had, on 26 May 2023, informed her that there may be a termination of employment[196] and on 8 June 2023, had advised her of a potential disciplinary process.[197]

• [113] Mr Macsporran gave evidence that he had taken on the responsibility of assisting in the management of the Respondent's operations in Australia since 2015.[198] Those operations consisted of a small office in Perth, which provided various coordination and support services as the 'base' or 'home' for: (a) technical equipment; (b) equipment repairs and maintenance; (iii) FIFO workers; and (iv) administration and office-related tasks in relation to the Respondent's activities in Australia.[199]

• [114] Mr Macsporran said that before 2021, his interactions with the Applicant were limited and included: (a) previous requests for personal leave (that were uncontroversial and supported); (b) arrangements for the Applicant when the vessel she was deployed to was out of service for maintenance; and (c) in the early stages of COVID-19, managing changing travel restrictions and requirements in WA.[200]

• [115] Mr Macsporran noted that the Applicant's usual duties and responsibilities consisted of: (a) travelling to and assisting clients of OPM at their assigned offshore workplaces; (b) undertaking and managing laboratory operations and chemical inventory of clients of OPM; and (c) safely sampling and performing routine and non-routine analysis of selected facility process and utility streams for clients of OPM.[201]

• [116] Mr Macsporran noted that the Applicant was subject to any applicable policies, procedures and/or requirements, particularly with respect to Work Health and Safety protocols of third-party host client organisations for any deployment in addition to that of OPM.[202]

• [117] The Respondent submitted that in October 2021, the Western Australian Government announced new Public Health Order Directives in response to the ongoing COVID-19 pandemic that made vaccinations mandatory for all FIFO and other resources sector workers.

• [118] In short, this meant that all relevant workers (unless legally exempt) were required to receive their first dose of a COVID-19 vaccination by 12:01 AM on 1 December 2021 and to have received all requested vaccinations, at that time, by 1 January 2022.[203] Mr Macsporran stated he was tasked with engaging with the Respondent's employees to verify their COVID-19 vaccination status to ensure compliance with the Public Health Order Directives.[204]

• [119] Mr Macsporran said that between 14 October 2021 and 11 November 2021, he sought to engage with the Applicant to verify her compliance with the Public Health Order Directives and offer any associated assistance.[205] However, according to Mr Macsporran, the Applicant was non-committal and evasive in discussing and confirming her COVID-19 vaccination status[206] despite it having been stressed to her that the Public Health Order Directives were binding upon her, the Respondent, and Santos.[207]

• [120] On 15 November 2021, the Applicant requested to be demobilised from the Ningaloo Vision and return to Perth due to unspecified 'personal health reasons'.[208] Mr Macsporran said that the request was accommodated albeit there was a lack of any detailed information provided by the Applicant and the Applicant still had a further seven days remaining on her rostered swing.[209]

• [121] Mr Macsporran said that on 21 November 2021, he received a medical certificate dated 21 November 2021 from the Applicant, which stated that she was 'unfit for work' due to 'stress and anxiety symptoms'.[210]

• [122] On 30 November 2021, the Applicant provided a further medical certificate to Mr Macsporran which declared her as unfit and covered a period until 6 January 2022.[211]

• [123] On 1 December 2021, Mr Macsporran sent two emails to the Applicant.[212] The first offered support to the Applicant in relation to any medical condition and sought further associated details as well as supporting information,[213] and the second reminded the Applicant about confirming the requirements and outstanding information needed from her relevant to the Public Health Order Directives.[214]

• [124] On 1 December 2021, the Applicant emailed the Respondent informing it:

I am officially stating my written notice for my entitlement for a safe job and/or no safe job leave under the Fair Work Act due to pregnancy. Due to the continual safety issues of working offshore while pregnant. [sic] I am giving this notice as soon as practicable. The intended start and end dates of leave are as follows; 24/11/21 until birth, and/or until due date of July 2022, or otherwise advised. It is inadvisable to do my usual job because i am pregnant for the following reasons; I have attached a medical certificate from a GP who support this requirement...[215]

• [125] The medical certificate dated 24 November 2021, as referred to by the Applicant in her email dated 1 December 2021, has been detailed at paragraph [17] of this decision.

• [126] The Respondent submitted it wanted to determine any appropriate alternate work arrangements that could be implemented to support the Applicant and in doing so, sought to obtain independent medical information to determine available options.

• [127] It is evident that during the period of 1 December 2021 to July 2022, the Respondent arranged medical assessments for the Applicant which the Applicant does not appear to have attended - except for one independent medical examination on 23 February 2022 (which according to the Applicant resulted in her being referred to her own general practitioner to undertake the assessment). Instead, the Applicant provided medical certificates to the Respondent from her medical practitioners. Those medical certificates have been referred to in the Applicant's evidence.

• [128] By email dated 15 December 2021, Mr Macsporran emailed the Applicant informing her that the Respondent had conducted a review of the role and would like to discuss the different options that it had at work.[216] Mr Macsporran continued that whilst aware that the Applicant was on sick leave, he asked whether she was available for a phone call on 17, 20 or 21 December 2021.[217]

• [129] Mr Macsporran said that attempts to discuss options to return to work with the Applicant before the end of her certified period of unfitness (until 6 January 2022) were unsuccessful.[218]

• [130] On 7 January 2022, Mr Macsporran spoke to the Applicant on the phone and purportedly outlined potential available options to support her with modified duties, sought to understand and agree on the relevant next steps, and confirmed that the Respondent would require further medical information to determine any ongoing arrangements (an independent medical examination).[219]

• [131] Mr Macsporran acknowledged that on 10 January 2022, the Applicant emailed him and informed him that her 'preference' was to 'work from home' and that she was available and would be willing to attend a medical assessment for the Respondent to better understand and determine any appropriate modified work arrangements to better accommodate her.[220] However, the Applicant's email dated 10 January 2022 stated, amongst other matters:

a) 'I really appreciate the opportunity you have given me in regards to working from home and I feel the new position is well suited.';

b) 'As discussed and as per the entitlements of the fair work act, I would like to maintain working a 3 week on and 3 week off roster. As per the roster I am due at work on the 27/01/2022.'; and

• c) 'Also, as discussed I am currently in South Australia because of boarder [sic] closures. However, I am able to complete a medical before returning to work, I can be available on the following dates; 24th, 25th, or 26th January.'[221]

• [132] Mr Macsporran gave evidence that during the period of January 2022 to July 2023 (inclusive) there was extensive written correspondence between him and the Applicant, and that he had explained to the Applicant that the position of the Respondent was as follows:

a) there was insufficient evidence to satisfy a reasonable person that the Applicant was fit for work in her substantive position, but it was inadvisable for her to continue in that capacity;

b) she was considered to be unfit for duties and considered to be on authorised (unpaid) leave pending:

1. confirmation of her compliance with the Public Health Order Directives; and
2. sufficient evidence she met the eligibility criteria for:
   1. a transfer to a 'safe job' in view of pregnancy; or
   2. any other forms of paid leave;

1. the Respondent remained eager and proactively sought further evidence - by way of an independent medical examination - to determine the Applicant's:
   1. eligibility to a transfer to a safe job or receive no safe job pay; and
   2. any recommended alternate duties that may be appropriate and advisable for the Applicant; and

• d) that, in view of the Applicant's failure to demonstrate compliance with the Public Health Order Directives as well as the inconsistent and varying medical certificates she presented, in the absence of evidence from an independent medical examination, it was not considered that the 'transfer to a safe job' or 'no safe job pay' entitlements were triggered with respect to the Applicant.[222]

• [133] In particular, Mr Macsporran referred to the following correspondence:

• a) an email to the Applicant dated 24 January 2022, in which he sought to facilitate the Applicant's attendance at an independent medical examination and obtaining of necessary information to determine any alternate work arrangements for the Applicant;[223]
• b) an email dated 27 January 2022, which enclosed an internal dispute resolution form (as requested by the Applicant) and sought to secure cooperation from the Applicant regarding attendance at an independent medical examination;[224]
• c) an email dated 14 March 2022, regarding information requested to facilitate any return to work and consideration of modified duties;[225]
• d) an email dated 8 April 2022, regarding the abovementioned matters and other related matters;[226]
• e) an email dated 24 May 2022, seeking to facilitate the Applicant's attendance at a further scheduled independent medical examination and requesting information regarding any potential alternative duties;[227]
• f) an email dated 12 July 2022, regarding the need for further medical information to verify the Applicant's fitness for duties, any alternate suitable duties and other related matters;[228] and
• g) an email dated 14 July 2022, that reiterated that the Applicant had not provided the necessary medical information to verify she could return to work safely and also further addressing other grievances pertaining to an alleged entitlement to long service leave.[229]

• [134] Mr Macsporran said that on 14 May 2022, the Applicant submitted a Parental Leave Notification Form to him by email with a request that unpaid parental leave commence from 23 July 2022 and extend to 23 July 2023.[230] Mr Macsporran noted that the Applicant submitted a further Parental Leave Notification Form on 26 June 2022 with essentially the same details, confirming that the nominated expected commencement date for unpaid parental leave was from 23 July 2022.[231]

• [135] Mr Macsporran confirmed that he received an email from the Applicant dated 3 August 2022, which set out:

Just informing you that I am on parental leave from 1 August as this is when I delivered my child.

• [136] In response, Mr Macsporran sent an email dated 3 August 2022, which attached a letter outlining that the Respondent:

a) did not agree with the Applicant's revised nominated date for the commencement of her unpaid parental leave as 1 August 2022;

b) noted the original agreed commencement date of parental leave was 23 July 2022 in accordance with the submitted and related forms from the Applicant; and

• c) the commencement date had been revised to 11 June 2022 - being six weeks prior to the expected date of birth - given that the Applicant was not working or able to work during this period.[233]

• [137] Mr Macsporran observed that the commencement date of the Applicant's unpaid parental leave remained in dispute and was the subject of extensive further correspondence between the Applicant and the Respondent.[234]

• [138] Mr Macsporran stated that from early-2023, he sought to engage with the Applicant to understand her potential intentions or preferences for any potential return from parental leave.[235]

• [139] Mr Macsporran said that as the expected return-to-work date approached, there was a growing urgency for the Respondent to obtain clarity and certainty of the Applicant's intentions and to progress any associated arrangements noting:

a) the Applicant's substantive role was at a third-party client's workplace that had stringent work, health and safety requirements and also necessitated extensive logistical arrangements (including in relation to arranging pre-deployment medical assessments and transport); and

• b) if the Applicant was seeking an extension of any period of parental leave, this would necessitate a review of existing and potential additional resources that could be obtained by the Respondent.[236]

• [140] Mr Macsporran said that in view of these considerations, he corresponded further with the Applicant to obtain clarity on her intended return-to-work date:

• a) an email and enclosed letter from him to the Applicant dated 11 April 2023 making informal enquiries to assist with any necessary arrangements;[237]
• b) an email from him to the Applicant dated 20 April 2023 explaining the reason for the Respondent's request for confirmation and its position on the expected return-to- work date;[238]
• c) an email from him to the Applicant dated 24 April 2023 reiterating the correctness of the position of the Respondent on the expected return-to-work date and enclosing guidance material on parental leave rights, entitlements and obligations;[239]
• d) an email from him to the Applicant dated 8 May 2023 reiterating and requesting confirmation by 12 May 2023 of any intention to return to work as this would be four weeks before the expected return to work from the perspective of the Respondent;[240] and
• e) an email from him to the Applicant dated 15 May 2023 urgently seeking details of her desired arrangements for a potential return to work.[241]

• [141] Mr Macsporran said that in the absence of proactive and productive engagement from the Applicant, on 26 May 2023, he sent a further email and letter to the Applicant confirming: (a) the expectation that the Applicant would return to work to the Respondent's Perth office on 12 June 2023 to undertake relevant re-induction and medical clearances; and (b) that this was considered a reasonable and lawful direction.[242]

• [142] Mr Macsporran stated that the Applicant continued to assert that the interpretation and expectation of the Respondent that she return to work on 12 June 2023 was incorrect and that she had obtained advice to this effect from the FWO. Mr Macsporran continued that the Applicant had conveyed that it was her belief that any potential return-to-work date was 1 August 2023 and she could request any extension of unpaid parental leave up to four weeks prior to this date, being 1 July 2023.[243]

• [143] In response, Mr Macsporran emailed and enclosed a letter dated 8 June 2023 to the Applicant, in which he wrote:

a) that the Respondent remained of the view that the Applicant was expected to return to work on 12 June 2023;

b) the Applicant was invited to submit any written advice or information from the FWO or any other authoritative body that may verify her position that the return date was 1 August 2023 noting this was contrary to the assessment and advice received from the Respondent; and

• c) reiterating that - irrespective of the disputed return to work date - it would be encouraged that the Applicant advise if she was seeking an extension or further period of unpaid leave beyond 8 June 2023.[244]

• [144] The letter that Mr Macsporran referred to of 8 June 2023 also stated:

Our expectation is that you return to work on the 12th June 2023 which is the conclusion of the approved parental leave and a non-compliance to this request may be treated as an unauthorised absence from work and/or failure to comply with a reasonable and lawful direction that could warrant subsequent action including potential disciplinary processes.[245]

• [145] Mr Macsporran said that by email dated 11 June 2023, the Applicant responded to him again maintaining her position that any potential return-to-work date was 1 August 2023.[246]

• [146] Mr Macsporran stated that the Applicant resigned by email dated 19 June 2023.[247] He further stated that there had been no interactions or correspondence between him or any other representative of the Respondent, with the Applicant during the period 11 June 2023 to 19 June 2023.

• [147] By email and enclosed letter of 22 June 2023, Mr Macsporran, on behalf of the Respondent, accepted the Applicant's resignation, noting that any applicable notice period would be waived and not required to be worked.[248]

• [148] Central to the consideration in this case is the operation of s 386(1) of the Act.

• [149] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the Commission's acceptance that the definition of the word 'dismissed' in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word 'dismissed' as defined in s 12 and 386 of the Act reads:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [150] There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.

• [151] As noted, the definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses 'termination on the employer's initiative' and the second, 'resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct'. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[249] and in Lipa Pharmaceuticals Ltd v Jarouche[250] the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:

[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[251]

• [152] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a), and in doing so expressed the following about s 386(1)(b):

[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

". . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ''termination of employment.''" (references omitted)[252]

• [153] It is of course to be appreciated that where there is a termination of employment by way of resignation, there is a need to objectively assess the circumstances surrounding the termination. In Bupa, the Full Bench cited the decision of the Federal Court in Koutalis v Pollett, where Rares J observed:

The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances.[253]

• [154] It is uncontroversial that the resignation of the Applicant was clear and unambiguous. The Applicant contends her resignation from employment with the Respondent was due to an accumulation of events that took place over approximately 20 months. I have observed that the Applicant submitted she relied upon ss 386(1)(a) and (b) of the Act in support of her argument that she was dismissed. However, at hearing it was evident that the focus of her material was directed at s 386(1)(b) of the Act and in such circumstances it was difficult to conceive the relevance of s 386(1)(a).

• [155] As to when the Respondent's purported conduct that culminated in the Applicant's dismissal started, the Applicant identifies that it was upon her becoming pregnant and requiring a 'safe job', as that term is understood by reference to the Act. It is at this point, that is the consideration of the legislative framework pertaining to pregnancy, that the consideration begins.

4.1 An appropriate safe job, an instruction to attend an independent medical examination and the denial of long service leave, amongst other issues raised during pregnancy

• [156] It is uncontroversial that the Act provides that a pregnant employee who has served 12 months of continuous service is entitled to be transferred to an 'appropriate safe job' for a risk period, if the pregnant employee has provided evidence to their employer that would satisfy a reasonable person that they are fit for work, but it is inadvisable for the pregnant employee to continue in their present position because of illness or risks arising out of their pregnancy, or hazards associated with the position.

• [157] It is, however, not the task of this Commission to determine whether there has been a contravention of Subdivision B - Parental Leave of the National Employment Standards (NES). The primary question before the Commission is whether the Respondent's conduct, or course of conduct, led to the Applicant having no other choice but to resign. As was said in ABB Engineering Construction Pty Ltd v Doumit:

Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed.[254]

• [158] In answering this question, it is relevant to note that whether a person has been dismissed is not decided by reference to the subjective intention or belief of either the employee or the employer. It is decided objectively by reference to all relevant circumstances. It is those circumstances to which I now turn, including the legislative provisions that formed the backdrop to correspondence between the Applicant and Respondent that spanned some 20 months, starting with the controversy over the request for an independent medical examination, an 'appropriate safe job' and 'no safe job leave'.

• [159] The legislative framework against which this dispute occurred, and which was referenced on multiple occasions by the Applicant, is to be found in the NES. As noted, s 81 of the Act provides that a pregnant employee is entitled to an appropriate safe job when certain pre-requisites are met:

(1) This section applies to a pregnant employee if the employee gives the employee's employer evidence that would satisfy a reasonable person that the employee is fit for work, but that it is inadvisable for the employee to continue in the employee's present position during a stated period (the risk period) because of:

(a) illness, or risks, arising out of the employee's pregnancy; or

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

(2) If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee's terms and conditions of employment.

Note: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.

(3) An appropriate safe job is a safe job that has:

(a) the same ordinary hours of work as the employee's present position; or

(b) a different number of ordinary hours agreed to by the employee.

(4) If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee's full rate of pay (for the position the employee was in before the transfer) for the hours that the employee works in the risk period.

(5) If the employee's pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

(6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate.

• [160] The Applicant was demobilised from the Ningaloo Vision and returned to Perth, at her request, on 15 November 2021 due to 'personal health reasons'. At all material times and in accordance with clause 5.1 of her employment contract, the Applicant had been employed to primarily work on the Apache 'Ningaloo Vision Project'. Following her demobilisation, the Applicant provided medical certificates certifying that she was unfit for work from 19 November 2021 until 25 November 2021 (reported stress and anxiety symptoms)[255] and from 16 December 2021 until 6 January 2022. [256] The latter medical certificate, provided to the Respondent on 30 November 2021, stated that the Applicant had the medical condition of pregnancy with morning sickness and lower back pain. In her email to Mr Macsporran of that same date the Applicant stated:

I am informing Oleochem that my next on-duty period from the dates 16/12/21 until 06/01/22 I will be on paid personal leave due to personal illness. My return date is yet to be confirmed, pending continual advice and consultation from my medical specialist/GP. I will send through a medical certificate.

I am informing you now because as per the Oleochem employee handbook, offshore employees should let the company know as soon as possible if they are sick and unable to fulfil the offshore rota.[257]

• [161] As of 1 December 2021, the Applicant had provided written notice to the Respondent regarding her entitlement for an 'appropriate safe job' and/or 'paid no safe job leave' under the Act, due to pregnancy. The Applicant continued that the intended start and end dates of leave (presumedly 'paid no safe job leave') were 24 November 2021 until the birth, and/or until due date of July 2022, or otherwise as advised. The Applicant attached a medical certificate from a medical practitioner who wrote:

This is to certify that Ms Holly Cederman has a medical condition (pregnancy) and under the Fair Work Act she is entitled to move to a safe work environment minimising her exposure to chemicals during her pregnancy.[258]

• [162] It is relevant to note that as of 1 December 2021, the Applicant had been absent from the workplace since 15 November 2021, when demobilised at her request. Further, the Applicant had provided medical certificates covering the two periods of absence and had notified of her pregnancy, providing a medical certificate as referred to in the preceding paragraph.

• [163] Mr Macsporran emailed the Applicant whilst she was on personal leave (15 December 2021) to request a telephone discussion regarding options for returning her to work. Given the content of Applicant's medical certificate stating that she was to move to a 'safe work environment' that minimised her exposure to chemicals during her pregnancy and given she was due to return to work on 6 January 2022, I do not consider the Respondent's conduct in contacting the Applicant during her personal leave unreasonable in this respect. However, as it was, a discussion between the Applicant and Mr Macsporran ultimately did not take place until 7 January 2022.

• [164] The parties appear to have a somewhat similar recollection as to what was discussed in the meeting between the Applicant and Mr Macsporran on 7 January 2022. I have found that the discussion included:

• a) the Respondent acknowledging that in the Applicant's current position, she would not be able to mobilise to Ningaloo Vision to continue her offshore production chemist role;[259]
• b) the Respondent broaching three options to accommodate the Applicant's circumstances in respect of an appropriate safe job:[260]
• i. the first option was offshore work but with safe tasks including laboratory audits and the offshore training of operators; [261]
• ii. the second option was to work onshore from the Respondent's Perth office with responsibilities extending to creating laboratory procedures, assisting with risk assessments, compilation of workpacks for ad hoc jobs, assisting with training procedures and preparation of a training course for distance learning - sampling;[262] and
• iii. the third option was working from home and performing similar duties as the aforementioned duties in paragraph [164(b)(ii)];[263]
• c) the Applicant expressing her preference in respect of the three options, which was to work from home - albeit the Applicant informed the Respondent that she was not resident in Perth but was in South Australia and was experiencing difficult returning to Perth;[264]

d) Mr Macsporran advising the Applicant that he was unaware that she was domiciled in Adelaide and had assumed she was in Perth, and that he would need to obtain advice on how this affected things;

• e) the Applicant asking about her hours of work and stating that the Act provided for her normal hours to be the same and Mr Macsporran acknowledging that human resources was not his speciality, and he would need to obtain advice;[265]
• f) Mr Macsporran informing the Applicant that after an employee has been signed off fit, the Respondent would make sure they were okay to return to work and company procedure was to get a doctor to sign them as fit to return to work; [266]
• g) Mr Macsporran informing the Applicant that whilst the Respondent intended it to arrange an independent medical assessment in Perth the following week, given she was in Adelaide, the Respondent would look into this;[267] and
• h) the Respondent expressing a preference for the Applicant to work Monday to Friday because it would tie in with when he could send emails and keep her updated.[268]

• [165] At paragraph [16] of her witness statement, the Applicant stated:

In the phone call I made a clear point of having a flexible work arrangement. I confirmed a working from home position would be ideal for me. I felt I'd made it clear and agreed to the working from home Safe Job Option (Option 3) as this would be best for my situation. I confirmed with Ally that the working from home position was best as it suited my situation.

• [166] At paragraph [17] of her witness statement, the Applicant reports that Mr Macsporran said 'he would like a "hybrid" of the two options' (Option 2 and Option 3).

• [167] It is the Applicant's view that Mr Macsporran suddenly altered the appropriate safe job position offered in the meeting of 7 January 2022 by proposing a 'hybrid' position, which was not one of the three options that had been given to the Applicant in the meeting. The Applicant considered this an instance where the Respondent's action was unacceptable. The Applicant's view in this respect cannot be sustained.

• [168] The evidence shows that at the meeting on 7 January 2022, the Respondent was broaching options to accommodate the Applicant's pregnancy. Whilst the Applicant may have made it clear to Mr Macsporran as to her preference to work from home in Adelaide, it is not the case that the evidence of the Applicant and Mr Macsporran supports a finding that an agreement had been reached for that option to be adopted. On balance, it is not apparent that there was a meeting of the minds at the meeting on 7 January 2022, such that the Applicant would work from home - and as to the hours of work, Mr Macsporran noted he would need to obtain advice, albeit his preference was a Monday to Friday arrangement.

• [169] The Applicant refers to Mr Macsporran asking her in the meeting on 7 January 2022, whether she could commence work from that day onwards, and as such contends that the Respondent was not honouring or accepting her roster for her substantive position.[269] According to the Applicant this was a further instance of the Respondent not respecting her contractual roster and requesting her to do something work-related while on her rostered off-duty time. Shortly stated, that Mr Macsporran asked the Applicant to commence work as of 7 January 2022 appears unusual given his insistence on the Applicant first completing a medical assessment to facilitate a return to work, and in any event, if the Applicant had been asked to start work that day, it was simply that - an asking of a question not the delivery of an instruction. As such, it does not, in my view, suggest that the Respondent was unaccepting of the Applicant's substantive roster or had acted unreasonably, at this point.

• [170] By email dated 10 January 2022, the Applicant wrote to Mr Macsporran stating that she really appreciated the 'opportunity you have given me in regards to working from home and I feel the new position is well suited'.[270] In my opinion, the Applicant's email is, in part, a false narrative of what was discussed at the meeting on 7 January 2022 and is self-serving - such that it has misconstrued discussions on 7 January 2022 to suit the Applicant's purpose. Similarly, in her witness statement at paragraph [20], the Applicant proceeds on the basis that a 'safe job' had been decided upon:

Now that a Safe Job had been decided upon with OPM and having Ally ask if I was suddenly going to start work, I queried the hours and roster with Ally...

• [171] As I have stated, I have found there was no agreement between the Applicant and the Respondent with respect to the option that would be adopted to accommodate the Applicant's pregnancy at this point. Further, while the Applicant may have held an opinion as to what, in her view, constituted an 'appropriate safe job', her view, whilst relevant to some extent, was not determinative of the issue. At paragraph [22] of the Applicant's witness statement she refers to having 'confirmed again with Ally my choice of the Safe Job of working from home'. It is important to appreciate that the Applicant confirms her 'choice', however, a choice does not constitute an agreement.

• [172] The Applicant gave evidence that she was instructed to attend a medical assessment on the basis that it was a usual company return-to-work process if somebody had been off for an extended period. Mr Macsporran's file notes of the meeting held on 7 January 2022 detail:

After any employee has been signed off fit, to make sure that they are ok to return to work, it is company procedure to get a doctor to sign them as fit to return to work.

AM was going to get this arranged in Perth next week (w/c 10th January), but given that HC is in SA, AM will need to look into this.[271]

• [173] The Respondent did not present a written company procedure that stipulated that once 'signed off fit' the Respondent would thereafter arrange for a doctor to similarly assess the employee as fit or unfit for work. Further, whilst the Applicant was demobilised on 17 November 2021 and at the time of the discussion on 7 January 2022 approximately seven weeks had passed, I do not consider such a period constituted an extended period. The Applicant had in that period been absent for approximately two swings. When regard is had to the Applicant's substantive position and her 3:3 roster, such that in the usual course the Applicant would be on R&R for three weeks at a time, an absence of seven weeks in such context hardly equates to an extended period. Predicating the instruction for an independent medical examination on this basis did not, in my view, constitute a lawful and reasonable instruction. In such circumstances, the Respondent's conduct was unreasonable in this regard.

• [174] This case clearly involves a prolonged parrying between the parties about the Applicant's fitness for work, the issue of an 'appropriate safe job' and the Respondent's instruction for the Applicant to attend an independent medical examination. It is evident in the Applicant's correspondence to the Respondent that she sought clarification about the source of power the Respondent relied upon to direct her to attend an independent medical examination.

• [175] At this juncture, it is relevant to establish that an employer is entitled to direct an employee to obtain a medical report or to attend a medical assessment if that direction is reasonable.[272] It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.[273] However, that latter principle warrants further clarification and in this regard the judgment of Madgwick J in Blackadder v Ramsay Butchering Services Pty Ltd (Blackadder)[274] proves relevant. In Blackadder, 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 on reinstatement. At paragraphs [67]-[69] his Honour stated:

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 AWA, 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 170VR(2) of the Act).

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.

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.[275]

• [176] In short compass, the source of power to direct an employee to attend an independent medical examination may arise from an express term of the employment contract, or an implied term in the contract of employment that each party will do all such things as are necessary to enable the other to have the benefit of the contract,[276] or as a consequence of the employer's duty under occupational health and safety legislation,[277] or, as was identified by the Deputy President in Burns v Sacred Heart Mission Inc (Burns),[278] from the corollary to that duty, the duty imposed on an employee under various occupational health and safety legislation that an employee cooperate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by that legislation.[279] The entitlement might also arise from an employer's duty implied into the employment contract to take reasonable care for its employees.[280]

• [177] The decision of the Burns was upheld on appeal by the Full Bench.[281] The Full Bench confirmed that there was no error in the Deputy President's reasoning and observed that Burns advanced the proposition that an employer could direct an employee to attend an independent medical examination where such a direction is lawful and reasonable and whether it is 'reasonable for an employer to request an employee to attend a medical examination will always be a question of fact' in the particular circumstances of a matter.[282] In this respect, the Full Bench in Burns mirrored that which was stated in Blackadder.

• [178] Whilst on several occasions during her pregnancy the Applicant sought clarification from the Respondent regarding the source of power underpinning the direction for her to attend an independent medical examination, particularly in light of s 81(6) of the Act, the Respondent's explanation[283] was abjectly devoid of such detail with the exception of Mr Macsporran's repetition that an independent medical examination was required to assess the Applicant's fitness for work and that the direction to attend an independent medical examination was a lawful and reasonable instruction.[284] The Respondent does not appear to have informed the Applicant as to the particular source of authority it relied upon in respect of the issuance of the 'lawful and reasonable' instruction. In some circumstances it will be acceptable for an employer to simply describe that the instruction or direction given is 'lawful and reasonable'. But in circumstances such as these, where there is dispute over the instruction in light of a statutory provision, and an employee questions her or his employer about the source of power underpinning the instruction given, to ignore the question asked or to fail to answer it such that the source is identified, is unreasonable.

• [179] The medical certificate provided to the Respondent on 1 December 2021 and dated 24 November 2021, which detailed that the Applicant was pregnant and entitled to move to 'a safe work environment minimising her exposure to chemicals during her pregnancy' (italics for emphasis), did not, in my opinion, provide the Respondent with sufficient evidence to ascertain whether the Applicant was fit for work but that it was inadvisable for her to continue in her present position or place the Respondent in a position where it could identify an 'appropriate safe job' within the context of its business.

• [180] In her email to the Respondent dated 1 December 2021, the Applicant outlined the safety issues of working offshore whilst pregnant[285] and provided her 'personal risk assessment'. In the email dated 1 December 2021, the Applicant concluded with the following statement:

I will not require access to site/offshore for the duration of the pregnancy, as per the fair work act, and as supported by a GP and a medical certificate, and therefore there is no requirement to know my vaccination status as it is irrelevant until im [sic] required on site.[286]

• [181] On 9 December 2021, Mr Macsporran emailed the Applicant informing her that the role requirements were being reviewed in line with the medical information she had provided, and consideration would be given to any roles available offshore or in Perth that did not expose her to chemicals as per the limitation in her medical certificate.[287] The Applicant pressed that this email from Mr Macsporran indicated that the Respondent was only accepting details within a medical certificate thereby not taking into consideration her own personal risk assessment. The Applicant explained that she knew her offshore position best and the hazards associated with it, and that having had the Respondent disregard her personal risk assessment and place her in a position working offshore for the 'safe job', made the Applicant question the Respondent's ability to listen to her health and safety concerns.

• [182] The Applicant further submitted that her opinion in this respect was again reinforced at the meeting held on 7 January 2022, when Mr Macsporran referred to the Applicant working offshore but on safe tasks minimising chemical usage.[288] The Applicant submitted that such option constituted the second instance of the Respondent disregarding her 'personal risk assessment' regarding the need for a 'safe job'. Again, the Applicant said it made her question the Respondent's ability to listen to her health and safety concerns and in her view the Respondent's conduct was unacceptable.

• [183] To come back to what I have already stated, the medical certificate dated 24 November 2021 spoke of placing the Applicant into a safe work environment minimising her exposure to chemicals during her pregnancy. As to what constituted a 'safe work environment' was not elaborated on in that medical certificate and whilst the medical certificate referred to 'minimising' exposure to chemicals, it did not propose total avoidance of all chemicals. Whilst the Applicant went to some length to outline the risks associated with the position of offshore production chemist in circumstances of a pregnancy, and I make no suggestion that her personal risk assessment was to be ignored, it nevertheless remained that in respect of the operation of s 81 of the Act, the evidence was not, in my view, evidence which would satisfy a reasonable person. Further, and to the extent it is relevant, in circumstances where the Respondent had a duty under occupational health and safety legislation to ensure a safe working environment for the Applicant, the medical certificate dated 24 November 2021 was also insufficient to inform as to that obligation. The Applicant, whilst an experienced offshore production chemist, was not a medical practitioner and therefore did not possess the expertise, skill, or competence to assess her fitness for work and whether it was inadvisable for her to continue in her present position. The evidence required was that which would satisfy a reasonable person.[289]

• [184] The Applicant said that in response to Mr Macsporran's email dated 9 December 2021, she felt stressed and anxious about the thought of working offshore whilst pregnant so she obtained another medical certificate for the 'safe job' specifically stating her inability to work offshore.[290] At the meeting on 7 January 2022, the Applicant advised Mr Macsporran that offshore work would not be an option as she had a medical certificate to that effect, which she could send through.[291] As already noted, the medical certificate dated 21 December 2021 set out:

Miss Holly Cederman is...pregnant and would like to be considered for a position at her company that is a safe job as per the Safe work Act onshore considering her pregnancy. The job really should have no exposure to chemicals hazardous to pregnancy and not be teratogenic. Ideally a job onshore would be advisable to allow for adequate access to medical help in case of a mishap.[292]

• [185] Mr Macsporran gave evidence of having received the Applicant's email dated 10 January 2022 in which she expressed her 'preference' to work from home, enclosed the abovementioned medical certificate dated 21 December 2021 and indicated she would be willing to attend a medical assessment for the Respondent to better understand and determine any appropriate modified work arrangements to accommodate her.[293] He gave further evidence that the relevant factors he had regard to in determining any appropriate modified alternate and 'safe' jobs for the Applicant's circumstances involved balancing and weighing:

a) the Applicant's preferences;

b) sufficient and reasonable evidence that the Applicant was fit for her substantive position, but it was inadvisable for her to continue in the role due to her pregnancy;

c) any alternate proposed duties and responsibilities did not present an unacceptable work health and safety risk to the Applicant or any other person; and

• d) the operational needs and 'alternate' potential jobs available that were to be accommodated by the Respondent.[294]

• [186] The medical certificate dated 21 December 2021 suffered from the same imprecision as that provided by the Applicant dated 24 November 2021. It did not address whether the Applicant was fit for her substantive position, it spoke of a safe job 'really should have no exposure to chemicals hazardous to pregnancy and not be teratogenic', and that 'ideally a job onshore' was advisable.[295] On an objective level the medical certificate dated 21 December 2021 did not constitute reasonable and sufficient evidence that the Applicant was fit for her substantive position but it was inadvisable for her to continue in the role, and did not provide sufficient information by which the Respondent could determine the duties and responsibilities of a particular role constituted an 'appropriate safe job'. The use of the words 'really' and 'ideally' was at best unclear. Further, in this context, I accept that when determining whether it was 'inadvisable' for the Applicant to continue in her present position, it was necessary for the Respondent to receive advice from a medical practitioner on that point in addition to whether any proposed alternative position presented an acceptable or unacceptable health and safety risk. On that basis, the Respondent's direction on 12 January 2022 for the Applicant to undergo an independent medical examination in respect of her fitness and a 'safe job' was a reasonable and lawful direction. However, at that point it was open to the Applicant to remonstrate about it having been scheduled during her rostered time off and to request that it be rescheduled to either 24, 25, or 26 January 2022,[296] which the Respondent accommodated.[297]

• [187] By email dated 16 January 2022, Mr Macsporran advised the Applicant she was 'signed off' for offshore work not onshore work therefore until she had a 'medical' the Respondent would place her sick pay on hold as her current sick leave note did 'not cover office work where there was no risk to her pregnancy'.[298] Mr Macsporran continued that the Applicant had an obligation under the Act to provide the Respondent with evidence she could still work (in that 'safe job' onshore). Mr Macsporran continued that the Respondent had found a 'safe job' for her hence the reason to attend the medical so that the Respondent could receive expert advice and move forward with the Applicant's alternative job.[299] However, at this point the Respondent had not communicated to the Applicant what that 'appropriate safe job' was and had not transferred her into that position. It was therefore unreasonable for Mr Macsporran to communicate to the Applicant that her paid sick leave would be withheld when it had not been communicated to the Applicant what that 'safe job' was and that she had been transferred to that role.

• [188] It is uncontroversial that the Applicant provided a medical certificate certifying her unfit for work for the period 27 January 2022 until 2 February 2022.[300] By email dated 24 January 2022, Mr Macsporran informed the Applicant of the following:

I note that you are not up to work this week and you will send through a doctors certificate to confirm. We will cancel the return to work medical appointment and rearrange for when you are able to attend.

For clarity - you are not due back on the 27th January. The safe job that we have available for you is office-based, Monday-to-Friday (with the same ordinary hours of work as the Offshore Chemist role). We are really trying to work with you on providing you with a safe job but until we receive confirmation that you are fit to return to work then we cannot transfer you to a safe job. Your sick pay will continue to be on hold until we receive a doctor's note.[301]

• [189] As of 24 January 2022, the Respondent had informed the Applicant that a 'safe job' was available for her, that the job was office-based, and she was required to work Monday to Friday with the same ordinary hours as her substantive position. By this time the Applicant had been absent from the workplace since her demobilisation date and during that period had provided medical certificates for her periods of 'on-cycles' and in support of her request for a 'safe job'. As previously noted, and for reasons already cited, I am of the view that the Respondent's direction to attend an independent medical examination continued to be a lawful and reasonable direction at this point.

• [190] By mid-January 2022, the dispute between that parties had evolved to also include the Applicant's dissatisfaction with what the Applicant essentially considered a unilateral variation of her employment contract in respect of the Respondent's change to her roster (from a roster cycle of 3:3 to a Monday to Friday arrangement).

• [191] The legislative framework against which this dispute occurred, and which was referenced on multiple occasions by the Applicant and has been cited in this decision, was Subdivision B - Parental Leave of the NES. Section 81 of the Act provides that a pregnant employee is entitled to an 'appropriate safe job' when certain pre-requisites are met, once transferred to that 'safe job' for the risk period, there are to be no other changes to the employee's terms and conditions of employment.[302] However, an 'appropriate safe job' is one where the employee's ordinary hours of work remain the same as their substantive position or differ by agreement.[303]

• [192] In her email dated 24 January 2022 and in subsequent emails such as on 26 January 2022,[304] the Applicant informed the Respondent that her terms of employment under the Act were to remain the same and as such her 3:3 roster continued notwithstanding the proposed 'safe job' or the introduction of the 'safe job'. The Applicant's employment contract provided that '[t]his Agreement sets out the whole agreement between you and Oleochem.' In respect of hours of work and the Applicant's roster, the employment contract stated:

Your hours of work average to 42 per week over the roster cycle. Weekly hours compromise [sic] of 38 ordinary hours and 4 reasonable additional hours.

7.2 All time spent travelling to and from your designated point of hire will be in your own time.

7.3 Your ordinary hours may be rostered at any time throughout the 24 hours of the day and on any 7 days of the week (including Saturday, Sunday or public holidays). Your remuneration includes an amount to compensate for this.

The roster cycle operates on an even time basis and comprises a 42 day even time cycle based on an on duty period of 21 days followed by an off-duty period of 21 days.[305]

• [193] The Respondent's instruction that as of 24 January 2022, the Applicant was now to work a Monday to Friday roster albeit with no change to her ordinary hours of work, was immoderate conduct for the following reasons. The Respondent had instructed the Applicant that her return to work was dependent on her medical assessment, that is, her attendance at an independent medical examination and the resultant report. Whilst a 'safe job' had been identified (it is not clear to me what precisely that job was although Mr Macsporran said it was office-based),[306] the Respondent insisted that the Applicant's roster had changed notwithstanding her having not been transferred into the 'appropriate safe job'. One will recall Mr Macsporran's words - 'we are really trying to work with you on providing you with a safe job but until we receive confirmation that you are fit to return to work then we cannot transfer you to a safe job.'[307] The Applicant had not been transferred to an 'appropriate safe job' and even if she had, s 81(2) precluded changes to the Applicant's terms and conditions of employment. Further, the Applicant's employment contract did not allow for the unilateral variation to her roster, as adopted by the Respondent.

• [194] I note the parties did not directly address the Commission on whether the Applicant was covered by a modern award and whether such instrument allowed for the roster change as adopted by the Respondent, or whether the Respondent sought to make the change to the Applicant's roster pursuant to such modern award. As it is, the Respondent appeared to be under the impression that a modern award did not apply to the Applicant in any event because of the amount of her remuneration. However, it is not apparent from the evidence that the Applicant and Respondent entered into a guarantee of annual earnings.

• [195] In his email dated 5 February 2022, Mr Macsporran informed the Applicant that she was no longer classed as an offshore worker and was therefore no longer on a roster given her 'Doctor's note on the 10th January' which provided '...you [the Applicant] should no longer work offshore'.[308] Mr Macsporran noted that as the 'doctor's note' was dated 21 December 2021, the Applicant was no longer classed as an offshore worker and was no longer on a roster from that date, therefore the Applicant's hours were in accordance with her contracted working time - 42 hours per week. He continued:

You will only be paid sick leave if we have received a doctor's note covering you for that period.

For January we received a Doctor's note covering 1st-6th January and 27th-31st January. You will therefore be paid sick leave for those days only; the remainder will be unpaid as it was unauthorised absence.

We look forward to you returning to work; we will confirm the details of your return to work medical once confirmed by the medical provider.[309]

• [196] For reasons that should by now be clear, the Respondent's instruction that the Applicant's roster had changed on 21 December 2021, notwithstanding the Respondent having not transferred the Applicant into an 'appropriate safe job', was unreasonable. To further instruct the Applicant that paid personal leave would not be paid to her for unauthorised absences, those 'unauthorised' absences being periods when she was on rostered time off according to her 3:3 roster cycle but was due to attend work Monday to Friday in light of the Respondent's unilateral variation to her employment contract in respect of her roster, constituted inordinate conduct. The unreasonableness of the Respondent's actions is amplified when one considers that the Applicant's employment contract provided that her annual leave had been incorporated into her rostered off duty time (see clauses 8 and 10 of the Applicant's employment contract - Annexure AM1-1). It is unclear from the evidence whether the Respondent considered that its variation of the Applicant's employment contract in respect to her roster, similarly required a variation to her annual leave entitlement.

• [197] On 17 February 2022, Mr Macsporran emailed the Applicant to express disappointment in her having missed five medical appointments that had been booked for her.[310] The Applicant submitted she supplied medical certificates for all absences, or otherwise that the medical appointments that had been booked were during her rostered off periods and on that basis, she considered she had a right to decline to attend.[311] In his email dated 17 February 2022, Mr Macsporran stated '[i]f you continue to breach a lawful and reasonable direction from us we will have no option but to consider taking further action up to and including the termination of your employment.'[312]

• [198] In circumstances where the direction to attend an independent medical examination had been scheduled during the Applicant's rostered time off or otherwise her non-attendance was explained by medical certificates that had been accepted by the Respondent as explanation of her absence such that the bona fides of the medical certificates was not questioned, Mr Macsporran's statement '[i]f you to continue to breach a lawful and reasonable direction' was unreasonable. His statement was predicated on a breach, or breaches, having already been committed by the Applicant in circumstances where, I am satisfied, that had not occurred.

• [199] As noted, on 18 February 2022, whilst the Applicant was on personal leave, Mr Macsporran emailed the Applicant informing her that the company would not accept the private medical certificate she had provided and she was to attend the medical appointment on 22 February 2022 - a failure to do so could result in the termination of her employment.[313] Again, this reference to the termination of the Applicant's employment was unwarranted given the Applicant's past non-attendance at an independent medical examination had been explained and justified by the provision of medical certificates or otherwise had been scheduled in her rostered time off.

• [200] Ultimately, on 23 February 2022, the Applicant attended an independent medical examination as instructed by the Respondent.[314] However, according to the Applicant she was advised by the medical practitioner in attendance that she was to go to her regular general practitioner as Sonic Health Plus was unable to complete the medical requested regarding a 'safe job'.[315] There is no evidence before me to suggest that the Applicant was not so advised by the Sonic Health Plus medical practitioner.

• [201] The Applicant, appropriately in my view, informed the Respondent on the same date of her scheduled independent medical examination (23 February 2022) that Sonic Health Plus was unable to complete the medical examination for her return to work regarding a 'safe job'.[316] Whilst an issue appears to have arisen concerning the Applicant not providing medical information in respect of the pregnancy to the medical practitioner at Sonic Health Plus, email correspondence solicited by the Applicant from Sonic Health Plus informs that the Applicant was booked for a WorkCover assessment and not an employment medical.[317] That is, no fault can lay at the feet of the Applicant in this respect - as much is acknowledged in Mr Macsporran's email to the Applicant dated 28 February 2022.[318]

• [202] On 28 February 2022, Mr Macsporran sent an email confirming acceptance of a medical certificate supplied by the Applicant on 21 February 2022. That medical certificate stated that the Applicant was fit for work and Mr Macsporran noted the certificate was from a new practice, made no reference to previous certificates, and therefore constituted evidence that the Applicant was fit to return to her original position as an offshore production chemist.[319] Mr Macsporran further stated that in order for the Applicant to return offshore she was required to provide proof of her vaccination status.[320]

• [203] Up until toward the end of February 2022, the medical certificates provided by the Applicant to the Respondent were insufficient so as to satisfy a reasonable person that the Applicant was fit for work, but that it was inadvisable for her to continue in her present position such as to warrant direction to the Applicant to attend an independent medical examination. However, the evidence provided by the Applicant to the Respondent up until that point, adequately informed the Respondent that it was not simply the case that the Applicant could be directed to assume her substantive role offshore.

• [204] In short, the content of Mr Macsporran's email dated 28 February 2022 was divorced from reality to the extent that the Respondent clearly demonstrated a wilful blindness to its employee's circumstances. The Respondent's conduct in this respect bordered on egregious. It was implicit in the first paragraph of the email dated 28 February 2022 that the Respondent was cognisant that the Applicant remained pregnant, further in its past correspondence it had also acknowledged that it was inadvisable for the Applicant to work offshore - such that the Applicant was 'signed off sick for offshore work'.[321]

• [205] On 1 March 2022, Mr Macsporran advised the Applicant by email:

In order to transfer you to a Safe Job we need evidence that you are fit to return to work AND that it is inadvisable for you to continue in the Offshore Chemist role. This is required on one note and not split over two separate notes, from separate doctors, at separate Medical suppliers over two months apart.[322]

• [206] On 1 March 2022, the Respondent sought that Applicant's consent for her to attend an independent medical examination by a practitioner selected by the Respondent to determine her fitness for offshore work and if not fit for offshore work, the duties she was able to perform.[323]

• [207] However, on 2 March 2022, having been advised by Sonic Health Plus to see her own general practitioner to obtain a medical assessment, the Applicant obtained a fourth medical certificate in support of a 'safe job' and provided that to the Respondent (see Annexure 76).

• [208] The medical certificate (the fourth medical certificate) dated 2 March 2022 was, in my view, comprehensive, unequivocal in its terms, and satisfied the Respondent's instruction that it required 'evidence that you are fit to return to work AND that it is inadvisable for you to continue in the Offshore Chemist role'.[324] It detailed the following:

a) that the Applicant was pregnant;

b) that the Applicant was unfit to work in her substantive position (including working offshore) due to possible cause of genetic defects and teratogenicity from exposure to hazardous chemicals from 2 March 2022 to 30 June 2022 inclusive;

c) it was inadvisable for the Applicant to work in a remote, isolated, high-risk environment where medical care was limited due to safety issues related to her pregnancy;

d) it was inadvisable for the Applicant to do underwater helicopter escape training for the duration of pregnancy as well as wearing EBS lifejackets;

e) it was not recommended that the Applicant lift over 10kg;

f) the Applicant was not able to evacuate safely in emergency situations or use large fire extinguishers;

g) it was inadvisable for the Applicant to engage in prolonged walking, standing, climbing stairs and ladders and working in hot and humid condition was prohibited too; and

• h) the Applicant was completely fit to work an alternative safe job for the period mentioned, which involved transfer to a safe job onshore (consisting of office-type work from home).[325]

• [209] It is timely at this juncture to revisit s 81 of the Act, which provides that the section applies if the pregnant employee gives their employer evidence that would satisfy a reasonable person that the employee is fit for work, but that it is inadvisable for the employee to continue in the employee's present position during a stated period because of: (a) illness, or risks, arising out of the employee's pregnancy; or (b) hazards connected with that position. Section 81(6) of the Act stipulates that without limiting s 81(1), an employer may require the evidence to be a 'medical certificate'. Whilst an employer may require a pregnant employee to provide a medical certificate as evidence, the section does not, in my opinion, limit such evidence to a medical certificate obtained by an employee. That is, the 'evidence that would satisfy a reasonable person that the pregnant employee is fit for work but it is inadvisable for the employee to continue in the employee's present position' (as provided for in s 81(1)), may differ dependent on the circumstances. Hence up until the provision of the Applicant's medical certificate dated 2 March 2022, I am satisfied that the Respondent's direction for the Applicant to attend an independent medical examination to obtain the requisite evidence insofar as the operation of s 81 was relevant, in addition to the obligations of the Respondent under occupational health and safety legislation, was a lawful and reasonable direction, for the aforementioned reasons.

• [210] However, the continued insistence that the Applicant attend an independent medical examination on the basis that the Respondent required 'evidence that you are fit to return to work AND that it is inadvisable for you to continue in the Offshore Chemist role',[326] subsequent to her having provided the Respondent with the medical certificate dated 2 March 2022, was lacking in rationality for the following reasons.

• [211] The medical certificate provided by the Applicant on 2 March 2022 detailed the parameters of her fitness for work in addition to the medical reasons why it was inadvisable to continue offshore work and work as a production chemist. In that respect, the Applicant had provided evidence to the Respondent such that it would satisfy a reasonable person that she was fit for work, but it was inadvisable for her to continue in her position for the reasons detailed in ss 81(1)(a) and (b) of the Act. The Respondent's argument that such evidence was insufficient cannot be sustained. It follows that an instruction for the Applicant to attend an independent medical examination on the basis there was insufficient evidence to satisfy a reasonable person that the Applicant was fit for work in her substantive position but it was inadvisable for her to continue in that capacity, became unreasonable at this point.

• [212] As to whether there was an 'appropriate safe job available', the medical certificate certified that the Applicant was fit to work in an onshore position consisting of 'office type' duties. Whilst the medical certificate spoke of 'office type work from home', I do not consider that the limitation in respect to 'home' precluded the Respondent from engaging with the Applicant or her medical provider further on this point, should it have considered it necessary to do so, for example, in circumstances where the Respondent was considering factors such as whether the Applicant could meet the inherent requirements of the 'appropriate safe job' or whether reasonable accommodations were required in respect of the 'appropriate safe job'.

• [213] The Respondent had already foreshadowed the Applicant would be placed in an 'office-based' role. It was therefore evident from the medical certificate dated 2 March 2022 that that the Applicant was fit to undertake the duties associated with such a role onshore. The evidence does not reveal that the Respondent communicated to the Applicant that it was satisfied that she was fit for work but it was inadvisable for her to continue in her present position due to the factors in ss 81(1)(a) and (b) and that an independent medical examination (or further detail from her medical practitioner) was required to, for example, ascertain whether the Applicant was fit to fly between South Australia and Perth because an inherent requirement of the 'appropriate safe job' was that it was Perth-based. Albeit at paragraph [218] of this decision, evidence is traversed where the Respondent seeks an independent medical examination to inform it as to where the Applicant's duties could be performed. Nevertheless, from early March 2022 and the remainder of the Applicant's pregnancy, the Respondent persisted with its position that:

a) there was insufficient evidence to satisfy a reasonable person that the Applicant was fit for work in her substantive position, but it was inadvisable for her to continue in that capacity; and

b) the Applicant was considered to be unfit for duties and considered to be on authorised (unpaid) leave pending:

1. confirmation of her compliance with the Public Health Order Directives; and
2. sufficient evidence she met the eligibility criteria for:
   1. a transfer to a 'safe job' in view of pregnancy; or
   2. any other forms of paid leave.

• [214] By email dated 8 April 2022, the Respondent wrote to the Applicant stating:

Holly, as we have notified to you in our previous emails, we cannot continue to accept the medical certificates you have provided to us from 7 January 2022 onwards because you have failed to address our concerns about the medical information being provided; specifically, it still remains unclear whether you are fit for work, what duties would be suitable and safe for you to perform and whether you could perform any duties at all offshore.[327]

Holly, as we have already communicated to you, the medical certificates you have provided to date OPM do not clarify whether you are fit for work, the duties you are fit to perform and whether you are fit to perform duties offshore or onshore (or both).[328]

• [216] Mr Macsporran gave evidence at paragraph [38(c)] of his witness statement that the Respondent remained eager and proactively sought further evidence (during the Applicant's pregnancy) - by way of an independent medical examination - to determine the Applicant's: (a) eligibility to a transfer to safe job or receive no safe job pay; and (b) any recommended alternate duties that may be appropriate and advisable for the Applicant. Again, this basis for an independent medical examination was unjustified in all the circumstances.

• [217] However, the Respondent's email dated 8 April 2022 warrants further attention for two reasons.

• [218] First, the Respondent proposed options to move forward with the Applicant's return to work. One option was that the Applicant attend an independent medical examination in which the examination included an assessment as to where the Applicant could perform duties (offshore/onshore/office/home).[329] Insofar as a component of the independent medical examination involved an assessment as to whether duties could be performed in the Respondent's office in Perth or at the Applicant's home in South Australia, the instruction to attend the independent medical examination was reasonable. However, the instruction or direction was not so limited, and the Respondent continued to press that the independent medical examination was required to assess the Applicant's fitness to ascertain her eligibility to transfer to an appropriate safe job.

• [219] Second, the Respondent informed the Applicant that she had accrued untaken long service leave and that her access to her long service leave did not require any specific documentation or evidence, and if she wished to make an application for the leave it would be processed in the usual way.[330] The email further detailed that it simply wished to remind the Applicant of her entitlements (personal leave and long service leave) and set out that her ability to access such leave was in accordance with the Respondent's policies and procedures.[331] The Applicant subsequently requested to be placed on long service leave from 14 July 2022 and sent a reminder of the request to the Respondent several times, including on 23 June 2022.[332]

• [220] The Applicant submitted that the Respondent's email dated 8 April 2022, was, in her view, evidence that the Respondent was offering her long service leave in advance as contemplated by the Long Service Leave Act 1958 (WA). It is evident from the email that this was not the case and the Respondent's subsequent acts of declining to grant the long service leave on two occasions by informing the Applicant she was not entitled to long service because she had not completed ten years of continuous employment with the Respondent,[333] were neither unreasonable nor inaccurate. However, it remains perplexing why the Respondent would refer the Applicant to her long service leave entitlement in circumstances where she had not reached her ten year anniversary of continuous service and it would therefore follow that a request to take it would likely be declined.

• [221] Turning next to the Respondent's request for confirmation from the Applicant that she was compliant with the Public Health Order Directives. Prior to the Respondent's notification of the Applicant's pregnancy, I do not consider that the Respondent acted unreasonably in requiring the Applicant to provide evidence of COVID-19 vaccination or, in the alternative, evidence of exemption from having to have the vaccination. However, what is not clear from the Respondent's evidence is whether it revisited the requirement for the Applicant to provide confirmation of her compliance with the Public Health Order Directives in light of the 'appropriate safe job' that Mr Macsporran had identified in his email dated 24 January 2022 (see Annexure 35). The Respondent has not adduced evidence to show that the Public Health Order Directives and evidence of the Applicant's compliance with the same, was required in respect of the 'appropriate safe job' that had been identified by the Respondent. To persist with the direction that the Applicant provide evidence in accordance with the Public Health Order Directives was an arbitrary act in circumstances where the Respondent had not communicated to the Applicant that such evidence was required because the 'appropriate safe job' fell within the remit of the Public Health Order Directives.

• [222] The Applicant asked Mr Macsporran for the Respondent's dispute resolution procedure on 26 January 2022[334] and on 27 January 2022, Mr Macsporran provided to the Applicant a dispute resolution form by email. The Applicant completed the dispute resolution form and submitted it to Mr Macsporran on 17 February 2022.[335] The dispute resolution form set out, amongst other things:

A per the fair work act; there are to be no other changes to the employee's terms and conditions of employment. An employee will still get the same entitlements that they got in their usual job, this is a 21 days on and 21 days off roster. The employer must transfer the employee to that job for the risk period, with no other change to the employee's terms and conditions of employment.

As per my contract, Section 8, page 4 my entitlements are; "3/3 roster. The roster cycle operates on an even time basis and comprises of a 42 day even time cycle based on an on duty period of 21 days follow by an off-duty period of 21 days."

Oleochem are changing my work entitlements stating the safe job that we have available for you is Monday-to-Friday. This is in breach of the Fair Work Act.[336]

• [223] The Applicant submitted that the Respondent did not respond to the dispute resolution form until 8 April 2022 and this was therefore an example of the Respondent's failure to communicate in a timely manner. In response to this assertion, the Respondent, in its correspondence to the Applicant dated 12 July 2022, observed that it considered its previous communications to the Applicant, inclusive of the letter of 8 April 2022, had provided the Applicant with both a considered and valid response. Whilst the Applicant may have been dissatisfied with the responses received from the Respondent over the course of January 2022 to July 2022, I am of the view that the Respondent had addressed the core issues raised by the Applicant in a timely manner (albeit not to her satisfaction). In this respect, I would agree that the Respondent had provided to the Applicant considered responses to the dispute resolution procedure over a period of some months.

• [224] The Applicant was further aggrieved by the Respondent's response to her application in the AHRC, which she received on 20 April 2022.[337] Whilst the Applicant states that the Respondent's response left her completely shattered and further altered her relationship with the Respondent such that her trust was diminished,[338] it is to be appreciated that it was the Applicant who commenced this litigation. In respect of the litigious approach that the Respondent took in response to the Applicant's application in the AHRC, I consider nothing turns on such conduct. Once a litigious route has been adopted, the parties are free to pursue their own strategic direction as permitted by the law.

4.2 Parental leave and the dispute over the date by which the Applicant was due to return to work

• [225] The Applicant submitted two Parental Leave Notification Forms to the Respondent: one on 14 May 2022,[339] and a second on 26 June 2022.[340] The latter Parental Leave Notification Form set out that the start date of the Applicant's 'continuous parental leave' was '23 July 2022' and the end date was '23 July 2023'. It was uncontroversial that the Applicant had completed the latter form, signed it with an electronic signature, and that the form was dated 14 May 2022, notwithstanding having been provided to the Respondent by email on 26 June 2022.[341]

• [226] Section 74(4) of the Act provides that at least four weeks before the intended start date specified in the notice (written notice of taking unpaid parental leave - see s 74(1) of the Act), the employee must, unless it is impractical to do so, either confirm the intended start and end dates of the leave or advise the employer of any changes to the intended start and end dates of the leave. It appears that the Applicant provided such confirmation by submitting the second Parental Leave Notification Form, albeit a couple of days late.

• [227] The controversy that arose was with respect to the date when the Applicant's unpaid parental leave commenced and finished - both parties holding different views on that point. The Applicant insisted that her parental leave commenced on the birth of her child on 1 August 2022 and the Respondent held the opinion that the Applicant's unpaid parental leave started on 11 June 2022, six weeks prior to 23 July 2022.

• [228] In response to the Applicant's notification that she had given birth, Mr Macsporran emailed a response to the Applicant on 3 August 2022 informing her that the Act prescribes that an employee may commence their unpaid parental leave six weeks prior to the expected date of birth of the child, unless otherwise agreed by the employer and therefore her parental leave commenced on 11 June 2022, six weeks prior to 23 July 2022[342] - which was the expected date of birth of the Applicant's child.

• [229] The issue is perhaps made all the more abstruse given that the Applicant was not working at the time, albeit in her email to Mr Macsporran dated 1 September 2022, she asserted that she had every right to continue working because the Respondent never requested that she obtain a medical certificate six weeks prior to the expected birth date.[343] Whether the Applicant did, or did not, have every right to continue working, it was an indubitable fact that she was entitled to unpaid parental leave but she had not continued to work during the six week period before the expected date of birth of her child. Therefore, it is difficult to conceive how s 73 is relevant in all the circumstances and it follows the same must be said for s 71(3). Section 73 of the Act is predicated upon a pregnant employee continuing to work 'during the 6 week period before the expected date of birth of the child'.

• [230] Insofar as it is relevant, it does not appear on the evidence that the Respondent and Applicant agreed that her parental leave would commence earlier than six weeks before the expected date of birth of her child or that the Respondent required the Applicant to take a period of unpaid parental leave in accordance with s 73(2) of the Act.

• [231] This issue remained unresolved during the Applicant's unpaid parental leave and clearly had an obvious impact upon the date by which her unpaid parental leave was to conclude. The Respondent considered that the unpaid parental leave commenced on 11 June 2022 and would therefore end on 11 June 2023.[344] On 1 September 2022, Mr Macsporran emailed the Applicant advising her that the company had made its position known on both the commencement date of the Applicant's parental leave and her request for long service leave.[345]

• [232] Before I traverse further the dispute over the Applicant's return-to-work date, the Respondent's conduct within the Applicant's postpartum period warrants attention. The Respondent submitted that it made 'informal' enquires with the Applicant on 11 April 2023 in respect to any changes regarding her return-to-work date of 12 June 2023. Whilst expressly referred to as 'informal' enquiries in the email dated 11 April 2023[346] and in Mr Macsporran's evidence,[347] the email stated that it did not wish to place the Applicant under any pressure at the time, but nevertheless went on to stipulate:

...We would require at least eight weeks' advance notice of any changes to your maternity leave end date which is 12th June 2023. Would you kindly provide us with the information below:

• Are you intending to return to work as originally planned?

• If you are not planning returning to work on the same roster and hours as per your contract of employment you must formally put an application in for flexible working outlining your proposed reduced hours/days and roster.

If, on the other hand, you have decided that you do not wish to return to work after your maternity leave has ended, you are required to give us notice of your resignation and this amount is set out in your contract of employment.[348] (italics for emphasis)

• [233] The 'requirement' that the Applicant provide the Respondent with eight weeks' advance notice was not referrable to any legislative provision or company policy. Insofar as s 76 of the Act was applicable in respect to extending a period of unpaid parental leave, it obliges an employee who wishes to extend their parental leave to request an extension in writing, providing it at least four weeks before the end of the available parental leave period.[349] Thereafter, Mr Macsporran again emailed the Applicant on 20 April 2023, 24 April 2023 and 8 May 2023, and in the latter email stated that the Respondent expected the Applicant to advise of her intentions to return to work by 12 May 2023.

• [234] In fact, as early as 27 January 2023, the Respondent had enquired with the Applicant what her intention was in respect of returning to work.[350]

• [235] Whilst appreciative that the correspondence between the parties during the Applicant's pregnancy and into her postpartum period was exhaustive, and noting further that the Applicant had made several enquiries of the Respondent whilst on parental leave regarding the provision of documents (which will be addressed shortly), Mr Macsporran's insistence for clarification regarding the Applicant's intended return to work, initially in January 2023, and thereafter during the month of April 2023 was, in my view, unreasonable for the following reason.

• [236] It appears that the Respondent had a small footprint within the Australian jurisdiction and it was dependent, to some extent, on the circumstances of its client Santos (for whom the Applicant was employed to primarily to work)[351] regarding the provision of work to the Applicant. However, to persist with the 'requirement' in the face of the Applicant's correspondence to the Respondent on 3 February 2023 and 12 April 2023,[352] bordered on badgering and was unacceptable - notwithstanding the dispute over when the Applicant's parental leave concluded. The Applicant was on parental leave and such leave should have been respected.

• [237] During the Applicant's parental leave, on 4 February 2023 to be precise, the Applicant requested timesheets she had submitted over nine different months in addition to a copy of the Respondent's Return to Work Policy.[353] The Applicant made a further request for documents on 8 February 2023, regarding leave requests, timesheets, and clarification on how her pay had been calculated.[354] On 21 February 2023, 1 March 2023, and 12 March 2023, the Applicant sought updates from the Respondent regarding when the documents requested would be provided.[355] On each occasion, Mr Macsporran replied noting that operational matters had taken priority.[356] The lack of responsiveness to the request culminated in the Applicant seeking assistance from the FWO and on 27 March 2023, she emailed the Respondent with a formal letter attached from the FWO regarding access to employment documents that had been requested.[357] Having made the initial request for documents on 3 February 2023 and having not received the documents by 27 March 2023, it was open for the Applicant to consider the Respondent's conduct uncooperative. Again, whilst the Respondent had a small footprint within the Australian jurisdiction, this does not provide excuse for its tardiness.

• [238] By email dated 28 March 2023, Mr Macsporran responded that the requested documents would be ready to view at the Respondent's office on a Thursday afternoon or, if the Applicant was unavailable at that time, the documents would be sent out within the 14-day period.[358] Cognisant that the Applicant was domiciled in South Australia, the proposition that the Applicant could view the requested documents in the Respondent's Perth office was absurd. However, I do not consider the Respondent's conduct wanting in respect of it having sent to the Applicant's postal address (as recorded in her employment records) the requested documents via post on 5 April 2023,[359] notwithstanding the criticisms of the Applicant.

• [239] Come 26 May 2023, the Respondent wrote to the Applicant advising her that it was four weeks prior to her expected return-to-work date from her unpaid parental leave.[360] The email detailed the Applicant's return-to-work date of 12 June 2023, the requirement to attend for work in Perth and complete various assessments and training courses between 12 June 2023 and 21 June 2023.[361] The email concluded with the point that the Respondent considered its direction to attend work a reasonable and lawful direction and that a failure to comply with the direction may result in unauthorised unpaid absences and/or potential disciplinary action which may include the termination of the Applicant's employment.[362]

• [240] Having not received a response from the Applicant, on 8 June 2023, the Respondent wrote to the Applicant reiterating its position concerning the date of the Applicant's return to work and noted the following:

You state you have had advice from the Fair Work Ombudsmen, we would encourage you to share this so that we can determine whether this changes our position. If you do not provide this information we will still maintain the position that your parental leave is due to cease on 12th June 2023 and you are expected to return to work and report to duties as of the 12th June in the Perth office located at Unit 25/15 Barron Parade Joondalup WA 6027.[363]

We have sought to engage with you to facilitate the necessary return to work arrangements outlined above as well as invite any potential flexible work arrangements but in the absence of correspondence from you we have implemented your pre-maternity leave position of full-time Offshore Chemist on a 3/3 roster.

We understandable [sic] you may find these logistical discussions challenging but ultimately, they need to be undertaken to ensure both appropriate arrangements to facilitate the necessary return to work but also manage other operational and organisational pressures.

Our expectation is that you return to work on the 12th June 2023 which is the conclusion of the approved parental leave and a non-compliance to this request may be treated as an unauthorised absence from work and/or failure to comply with a reasonable and lawful direction that could warrant subsequent action including potential disciplinary processes.[364]

• [241] At this point, that is as of 8 June 2023, the Respondent proposed to the Applicant that she provide the advice received from the FWO so it might determine whether to change its position in respect to the Applicant's return-to-work date. However, it is to be appreciated that such proposal was made only four days prior to what the Respondent considered to be the Applicant's return-to-work date. Hence, whilst on the face of it the proposal reflects a modicum of cooperation, the genuineness of the proposal is undermined by its proximity to the Applicant's return-to-work date and that the Applicant was once again instructed that a failure to return to work on 12 June 2023 may result in her having failed to comply with a reasonable and lawful direction that could warrant subsequent action including potential disciplinary processes.

• [242] As I have noted, the Applicant sought to rely on both ss 386(1)(a) and (b) to support her contention that she had been dismissed. Contrary to the Applicant's submission, it is apparent that her case was that she was forced to resign because of the Respondent's conduct and hence was dismissed under the second limb of the definition in s 386(1).

• [243] Section 386(1)(b) specifies some of the matters that an employee who has resigned must show in order to displace the legal effect of the resignation (s 386(1)(b) is understood not to encompass a resignation in the heat of the moment).[365] Briefly stated, the employee must show, on the balance of probabilities, that the employer engaged in conduct or a course of conduct, which forced the employee to resign. In respect of the notion of 'onus', it is said that the notion stems from the fact that an applicant is the party who usually has the carriage of the application and who bears the risk of failure.[366] The applicant thus may be said to bear an onus of satisfying the Commission that an order should be made,[367] or, in this case, that she was 'dismissed' notwithstanding her resignation.[368]

• [244] I have already observed that in Bupa the Full Bench considered that the test to be applied in respect of s 386(1)(b) of the Act is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.

• [245] In Australian Hearing v Peary (Peary) at paragraph [30], a comparable section of the Workplace Relations Act 1996 (Cth) (WR Act) was considered by the Full Bench, which stated:

There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer's intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.[369]

• [246] In Peary, the section in question was s 642(4) of the WR Act, which provided:

For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer. (Italics my emphasis)

• [247] This can be contrasted with s 386(1)(b), which sets out a person has been dismissed if 'the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer'.

• [248] Whilst there may be differing opinions regarding whether the 'intention' of the employer is a relevant consideration when it comes to the interpretation of s 386(1)(b), in this case the critical question is whether the termination of the Applicant's employment was the probable result of the Respondent's conduct such that the Applicant had no effective or real choice but to resign. To explain this point further, it is not merely whether the act of the employer, which must be a principal contributing factor,[370] resulted directly or consequentially in the termination of employment, it is whether on an objective analysis of the employer's conduct the employee's effective or real choice was so negated that resignation was inevitably the only recourse.

• [249] In respect of the second limb relied upon and as observed, the Applicant argued that her forced resignation did not involve a single incident, but instead a series of incidents that ultimately led to her dismissal. Therefore, consideration extends to an assessment of whether the sum total and seriousness of the Respondent's conduct was sufficient to satisfy s 386(1)(b).[371]

• [250] The Applicant has, in her materials, referred to multiple occurrences during the 20-month period that she relies upon in support of her contention that she was forced to resign. It is not an exaggeration to state that the Applicant sought to characterise nearly every communication, action or step taken by the Respondent as somehow eroding her trust and confidence, or alternatively that the Respondent was ineffectual at communicating. Alternatively, the Applicant sought to characterise her own conduct as, for example, 'trying to do the right thing'. Briefly stated, it is perceivably a Sisyphean task to address every submission that the Applicant made. Notwithstanding, I have addressed the critical issues that did not warrant the characterisation advanced by the Applicant and whilst not possible to address every contention or occurrence within the parameters of this decision, I have nevertheless considered all materials filed (inclusive of those of the Respondent) and have identified the conduct I consider to be the critical conduct, on the part of the Respondent.

• [251] As noted, it must first be acknowledged that on an objective analysis of the conduct of which the Applicant complains, some issues do not bear the character she ascribes to them. This includes the Respondent contacting the Applicant whilst on personal leave or whilst she was on her rostered time off during her pregnancy to arrange an independent medical assessment, which was not, in my view, unreasonable in all the circumstances.

• [252] The Applicant also appears to have adopted a position that she had reached an agreement with the Respondent as to what constituted her 'appropriate safe job'. However, that simply was not the case. Mr Macsporran did not suddenly alter the 'appropriate safe job' position offered in the meeting of 7 January 2022 by proposing a 'hybrid' position - because such position was not offered and not agreed. Further, to the extent that the Applicant contends that there was an agreement for her to take her long service leave early or that otherwise the Respondent declined to grant such leave in circumstances where it was accrued and due, the evidence does not support such a contention.

• [253] Further, to the extent that a direction was provided to attend an independent medical examination to ascertain whether the Applicant could fly from South Australia to Perth (to ascertain where the Applicant was fit to work), that too was not unreasonable conduct in all the circumstances.

• [254] The Applicant submitted that the Respondent did not respond to the dispute resolution form until 8 April 2022, and this was therefore an example of the Respondent's failure to communicate in a timely manner. For reasons already provided, there was no failure of the Respondent in this respect.

• [255] Whilst the Applicant sought support from the FWO to access certain employment documents she had requested,[372] for the most part I do not consider that the Respondent's response was of such significance that it too culminated, in part, to the Applicant's choice having been negated. However, I do fail to comprehend why the Respondent delayed the provision of payslips as requested by the Applicant, in March 2022.[373]

• [256] Some of the events that the Applicant relies upon occurred some 12 to 20 months prior to her resignation and became subject to alternative litigious recourse. It may be argued that the Applicant's failure to press those matters further by way of her application in the AHRC or by initiating proceedings after the FWO involvement in respect of the 'appropriate safe job', demonstrated acquiescence on her behalf concerning those issues. Those issues while not temporally proximal to the date of resignation are not absent a contemporaneous connection to the same. I do not consider that that the Applicant acquiesced to what I have generally referred to as the Respondent's unreasonable conduct throughout the decision - such that the Respondent's conduct in this respect is unable to be relied upon. On or around 11-15 March 2022, the Applicant filed a complaint against the Respondent in the AHRC,[374] contending she had been discriminated against because of pregnancy and that she had been victimised.[375] Perhaps unsurprisingly, that application was later withdrawn in circumstances where the Applicant explained that she felt overwhelmed.[376] The Applicant also lodged a case with the FWO in February 2022, regarding the management of the 'appropriate safe job' which does not appear to have been pursued - again because she said it felt too stressful for her to continue with it while pregnant and because the FWO informed her that it was unable to assist her further.[377] Notwithstanding, during her pregnancy the Applicant continued to impress upon the Respondent that it was obliged to provide her an 'appropriate safe job' or alternatively pay her 'no safe job leave'.

• [257] I note that the Respondent drew support from the decision of the Deputy President in Jackson v Insurance Group Services Pty Ltd (Jackson),[378] where the applicant in that case had worked for the respondent employer for some four weeks prior to tendering her resignation. On resigning, the applicant contended she had been forced to resign having experienced both bullying and sexual harassment and yet having had limited options available to her after having reported the experiences.[379] It was not the alleged misconduct that the applicant said forced her to resign, but the respondent's allegedly inadequate response to the same.[380] Whilst, the applicant claimed the respondent failed to take steps to investigate or resolve her bullying and sexual harassment complaints, the Deputy President found that not to be the case and that there had been no process failure by the respondent.

• [258] In arriving at his findings, the Deputy President considered that those accused of bullying or sexual harassment did not work at the same location as the applicant, and that it would have been premature for the respondent to establish definite arrangements for a return to work for the applicant because she was not fit for work when she resigned, she had indicated that she was going to resign and the respondent had not yet investigated her complaints.

• [259] The decision in Jackson does not assist the Respondent with its case. It is distinguishable from circumstances where an applicant has endured the following, such as that endured by the Applicant in this case:

a) the Respondent's unilateral variation of her employment contract by changing her roster;

b) the perseverate instruction to attend an independent medical examination when she had provided a 'medical certificate' dated 2 March 2022, as that term is defined in s 12 of the Act and referred to in s 81(6) of the Act, in circumstances so described at paragraphs [207]-[213] of this decision;

c) having been instructed to attend an independent medical examination in periods of personal leave and/or in circumstances where she was not rostered to work;

d) having been advised that she potentially faced disciplinary action for failure to attend an independent medical examination when such examination was scheduled in periods of personal leave and/or in circumstances where she was not rostered to work;

• e) having been advised by the Respondent that she was fit to work offshore on 28 February 2022 and would therefore recommence in her offshore production chemist position thereby ignoring the medical evidence she had provided to the Respondent up until that point and in circumstances where the Respondent had previously acknowledged she was 'signed off' for offshore work;[381]

f) being requested to provide evidence in accordance with the Public Health Order Directives notwithstanding the Respondent having not clarified for her whether such Directive was applicable in the circumstances of an 'office type' position;

g) having been subject to persistent enquiry (once in January 2023 and thereafter during the month of April 2023) as to her return-to-work date notwithstanding her repeated response to such enquiry; and

h) having received the Respondent's proposal for her to provide any guidance or advice she had obtained from the FWO that supported her argument as to the date of her return to work - with only four days of her parental left before the Respondent required her to attend work or potentially face a disciplinary process.

• [260] While the Respondent has referred to providing the Applicant options to extend her period of parental leave or to engage in a flexible working arrangement, such options do not address the fundamental dispute between the parties regarding the date on which the Applicant's parental leave concluded and do not nullify the course of conduct engaged in by the Respondent toward the Applicant over the course of January 2022 until June 2023.

• [261] The Respondent pressed that in circumstances where it had previously instructed the Applicant it may take disciplinary action (including up to the termination of her employment) for failure to comply with a lawful and reasonable direction (attend an independent medical examination), it had not acted upon that instruction and was therefore unlikely to have adopted that course, when the Applicant did not present for work as of 12 June 2023. However, such reassurance was neither explicit nor implicit in its communication to the Applicant. Having not presented to work on 12 June 2023, the Applicant, who on all accounts had a ten-year unblemished history with the Respondent, now faced a potential disciplinary process as outlined in the Respondent's letter to her on 8 June 2023, over a dispute as to when she was due to return from parental leave:

Our expectation is that you return to work on the 12th June 2023 which is the conclusion of the approved parental leave and a non-compliance to this request may be treated as an unauthorised absence from work and/or failure to comply with a reasonable and lawful direction that could warrant subsequent action including potential disciplinary processes.[382]

• [262] On 11 June 2023, in what appears to be some of the last correspondence from the Applicant to the Respondent, the Applicant, in response to the Respondent's email dated 8 June 2023, wrote to Mr Macsporran stating:

The following statement made by OPM is incorrect; " We still have not had any correspondence from you regarding your intention to return to work." As I have informed OPM of my intention via emails on the following dates;

I advised OPM of my return date being 01/08/2023 as this is 12 months since the beginning of my parental leave.

As already stated, the FWO have said OPM had no grounds to direct me to start parental leave 6weeks early. I did not do any work for OPM during those 6 weeks as OPM did not supply any work for me to do and OPM placed me on unpaid leave.

As already stated, that to my understanding I have complied with relevant requirements of the Fair Work Act 2009, notably Subdivision B, Sections 70, 73 &74.

As already stated, I have repeatedly asked OPM to supply the evidence of their request regarding the Fair Work Act 2009 Subdivision B, Section 73. In all instances Oleochem have failed to provide the evidence where the request under the Fair Work Act 2009 Subdivision B, Section 73 was given to me by OPM. It is my understanding no request was ever given to me.

As already stated, I will remind you of Section 3.2 of my Contract; "Oleochem recognises that there may be other Australian laws binding Oleochem and you in relation to employment under this Agreement. Where this Agreement is inconsistent with these other Australian laws, these other Australian laws will prevail to the extent of the inconsistency."

As already stated, I make note that having to constantly remind OPM of my workplace rights under the Fair Work Act 2009 is placing undue pressure upon me. I am on my parental leave and ask that be respected. I will abide to the requirements of the Fair Work Act 2009.[383]

• [263] The Respondent did not respond to the Applicant's email dated 11 June 2023 in a timely manner, not even to acknowledge its receipt or to inform that a formal response from the Respondent would be forthcoming. On 20 June 2023, the Applicant emailed the Respondent, her concluding paragraph of that email stated:

I no longer feel comfortable with Oleochem because of their treatment of me. I have spent over 10 years working for Oleochem and I feel truly disappointed by Oleochems [sic] actions during my pregnancy and afterwards. I feel it's best for me to leave now, as I do not feel comfortable interacting with Oleochem. The past 20 months of employment with Oleochem has been an absolute nightmare for me and caused me great distress.[384]

• [264] Mr Macsporran gave evidence that at the time of the Applicant's resignation, the Respondent whilst confident that the expected return-to-work date for the Applicant was 12 June 2023, was contemplating any alternate arguable return date for the Applicant, which it considered was 24 July 2023; being the date 12 months from the expected birth date and as nominated by the Applicant in her Parental Leave Notification Forms as well as previously agreed with the Respondent.[385] Mr Macsporran stated that the Respondent was in the process of communicating this 'compromise' position to the Applicant in the hope of resolving the continued dispute on the question of the expected return to work. Mr Macsporran said that the Applicant elected to tender her resignation prior to this being communicated.[386]

• [265] Whilst the Respondent may have been 'in the process' of communicating a 'compromise' to the Applicant, ultimately it did not do so notwithstanding having been placed on notice of the dispute regarding the Applicant's return-to-work date in the prior August (just after the Applicant gave birth).

• [266] The findings set out in my consideration lead ineluctably to the conclusion that, on balance, the Applicant did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. It is the cumulative conduct of the Respondent over the period of the Applicant's pregnancy and her parental leave, in addition to the circumstances in which the Applicant submitted her resignation, that have led to this conclusion. In particular, I have considered several incidents as being critical as cited at paragraphs [259]-[265] of this decision.

• [267] As the Applicant did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent, it follows that the Applicant was dismissed and as such she is entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute. It is therefore worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant's application:

A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

• [268] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[387] and reach a level of satisfaction that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.[388]

• [269] Finally, while I have determined the Respondent dismissed the Applicant and therefore the Applicant is entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford[389] made observations of the following nature regarding s 370 of the Act and the making of a general protections court application:

• the Act establishes multiple alternate pathways for an applicant and prospective litigants;

• s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person's entitlement to make an application to it, this may not be conclusive; and

• • this is because a Court may ultimately decline to recognise an 'application' or resulting certificate granted by the Commission as valid, if called upon by a respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act.[390]

• [270] For present purposes and as a result of my determination, this matter will now be listed for conference between the Applicant and the Respondent in order to explore the possibility of resolution.

[1] Witness Statement of Ally Macsporran, [15(a)] (Macsporran Statement).

[5] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54] (Coles v Milford), special leave to appeal declined in [2021] HCASL 37.

[11] Personal Statement of Holly Cederman, [11], annexure 15 (Cederman Statement).

[14] Macsporran Statement (n 1) annexure AM1-13.

[15] Cederman Statement (n 11) [11], annexure 15.

[42] Ibid [32], [34], annexures 41 and 48.

[79] Ibid [74], annexures 25, 27 and 79.

[91] Ibid [96] annexure 88. Although the Applicant suggests at [96] of her statement that the complaint was made on 15 March 2022, the Applicant's email to the AHRC enclosing her complaint was sent on 11 March 2022.

[92] Digital Hearing Book, 88 (DHB).

[93] Cederman Statement (n 11) [97], annexure 89.

[96] Ibid [100]-[101], annexures 94 and 95.

[115] Ibid [229], annexures 121 and 126.

[120] Ibid [232], annexures 129 and 130.

[127] Ibid [255]-[258], annexure 144.

[135] Ibid [263]-[266], annexures 148 149, 150 and 151.

[155] Ibid [283]-[284], annexures 171 and 176.

[161] Ibid [290], [292], [293], annexures 178, 180, 204.

[166] Ibid [296], annexures 206 and 207

[183] Ibid [314]-[315], annexure 202.

[198] Macsporran Statement (n 1) [14(a)].

[206] Ibid [19], annexures AM1-5, AM1-7, AM1-8.

[213] Ibid [25(a)], annexure AM1-11.

[237] Ibid [51(a)], annexure AM1-29.

[238] Ibid [51(b)], annexure AM1-30.

[239] Ibid [51(c)], annexure AM1-31.

[249] [2017] FWCFB 3941; (2017) 271 IR 245 (Bupa).

[250] [2023] FWCFB 101.

[252] (2018) 273 IR 126, 129-30 [10]-[11].

[254] (Australian Industrial Relations Commission, Munro J, Duncan DP and Commissioner Merriman, 9 December 1996) (Doumit).

[255] Cederman Statement (n 11) annexure 2.

[256] Macsporran Statement (n 1) [25], annexure AM1-10.

[260] Cederman Statement (n 11) [14].

[261] Ibid; Macsporran Statement (n 1) annexure AM1-15.

[262] Cederman Statement (n 11) [14]; Macsporran Statement (n 1) annexure AM1-15.

[263] Cederman Statement (n 11) [14]; Macsporran Statement (n 1) annexure AM1-15.

[264] Cederman Statement (n 11) [16]; Macsporran Statement (n 1) annexure AM1-15.

[265] Cederman Statement (n 11) [20]; Macsporran Statement (n 1) annexure AM1-15.

[266] Cederman Statement (n 11) [21]; Macsporran Statement (n 1) annexure AM1-15.

[267] Cederman Statement (n 11) [21]; Macsporran Statement (n 1) annexure AM1-15.

[268] Cederman Statement (n 11) [22]; Macsporran Statement (n 1) annexure AM1-15.

[269] Cederman Statement (n 11) [22.1].

[270] Macsporran Statement (n 1) annexure AM1-16.

[272] See, eg, Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; (2014) 240 IR 342, 360 [61] (AIPA v Qantas); Thompson v IGT (Aust) Pty Ltd [2008] FCA 994; (2008) 173 IR 395, 407-8 [48]-[49]; Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 (Blackadder).

[273] Thompson v IGT (Aust) Pty Ltd [2008] FCA 994; (2008) 173 IR 395, 407-8 [49].

[276] AIPA v Qantas (n 272) 361-2 [66].

[278] [2014] FWC 3188.

[281] Burns v Sacred Heart Mission Inc [2014] FWCFB 6612.

[283] See, eg, Cederman Statement (n 11) annexures 55 and 79.

[284] See, eg, ibid annexures 38, 54 and 59.

[289] Fair Work Act 2009 (Cth) s 81.

[290] Cederman Statement (n 11) [11.2].

[293] Macsporran Statement (n 1) [35], annexure AM1-16.

[295] Cederman Statement (n 11) annexure 17.

[302] Fair Work Act 2009 (Cth) s 81(2).

[304] Cederman Statement (n 11) annexure 32.

[305] Macsporran Statement (n 1) annexure AM1-2.

[306] Cederman Statement (n 11) annexure 35.

[319] Ibid [61], annexures 61 and 72.

[327] Macsporran Statement (n 1) annexure AM1-21.

[332] Cederman Statement (n 11) annexure 137.

[333] Macsporran Statement (n 1) annexures AM1-23 and AM1-24.

[334] Cederman Statement (n 11) annexure 36.

[339] Macsporran Statement (n 1) annexure AM1-26.

[343] Cederman Statement (n 11) [273], annexure 157.

[346] Macsporran Statement (n 1) annexure AM1-29.

[349] Fair Work Act 2009 (Cth) s 76(2).

[350] Cederman Statement (n 11) annexure 220.

[351] Macsporran Statement (n 1) annexure AM1-2.

[352] Cederman Statement (n 11) [299], annexure 194.

[353] Ibid [283]-[284], annexures 171 and 176.

[355] Ibid [290], [292], [293], annexures 178, 180 and 204.

[357] Ibid [296], annexures 206 and 207

[360] Macsporran Statement (n 1) annexure AM1-32.

[366] Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311, 317 (Coal and Allied Operations); Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125; (2014) 244 IR 252, 261 [23] (Teterin).

[367] Coal and Allied Operations (n 366) 317; Teterin (n 366) 261 [23].

[368] Adaszko v Mitford Investments Pty Ltd [2021] FWCFB 719, [27]-[28].

[369] (2009) 185 IR 359, 367-8 [30] (Peary).

[372] Cederman Statement (n 11) [296], annexures 206 and 207

[376] Cederman Statement (n 11) [230], annexure 127; Reply Statement of Holly Cederman, [54] (Cederman Reply Statement); ibid 531.

[377] Cederman Reply Statement (n 376) [55]; DHB (n 92) 531.

[378] [2023] FWC 2491.

[381] Cederman Statement (n 11) annexure 32.

[385] Macsporran Statement (n 1) [63].

[387] Fair Work Act 2009 (Cth) ss 368(1), (2).

[388] Ibid s 368(3).

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