s.394 - Unfair dismissal

Nought To Five Early Childhood Centre Incorporated

Application for an unfair dismissal remedy - whether dismissal harsh, unjust or unreasonable

• [1] Ms Lei Yang was employed as a childcare worker by Nought to Five Early Childhood Centre Incorporated (the Centre) from 22 August 2022 until she was dismissed on 12 February 2025. The reason for dismissal was inability to perform the inherent requirements of the position for which she was engaged.

• [2] On the same day as her dismissal on 12 February 2025, Ms Yang applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Yang is protected from unfair dismissal because the minimum employment period of at least 6 months has been completed; the employment was covered by a modern award; and her annual rate of earnings was below the high-income threshold.

• [3] The dismissal was not a case of genuine redundancy. The Small Business Fair Dismissal Code did not apply because the Centre submits that it is not a small business employer.

• [4] The question is whether I am satisfied that the dismissal was harsh, unjust or unreasonable and if so, what is the appropriate remedy. For the reasons below, Ms Yang has not been unfairly dismissed.

• [5] In December 2023, Ms Yang was experiencing stress at work and attended her doctor.

• [6] On 13 and 14 February 2024, there were incidents at work involving staffing ratios.

• [7] On 29 February 2024, Ms Yang attended her doctor again in connection with workplace stress and difficulties she was experiencing with her manager.

• [8] On 1 March 2024, the Centre met with Ms Yang to discuss her conduct in relation to the incidents of 13 and 14 February 2024. Ms Yang became distressed and produced a medical certificate. She then commenced a period of leave and made a worker's compensation claim.

• [9] On 22 April 2024, Ms Melissa Hatzinicolaou, President of the Centre's Management Committee, wrote to Ms Yang "checking in". Ms Yang responded to say that she was on work-related leave; unsure when she would be back; and that a psychiatric assessment had been arranged for 4 June 2024. She advised of an appointment with a psychologist on 1 May 2024.

• [10] On 21 May 2024, Ms Yang's worker's compensation claim was rejected by iCare.

• [11] On 27 May 2024, Ms Yang applied to the Commission for orders to stop bullying at work. The Commission's file in the matter was eventually closed on the basis that Ms Yang was no longer at work.

• [12] On 4 June 2024, Ms Yang attended an independent medical examination with a psychiatrist. According to documents produced by Ms Yang from iCare, the psychiatrist's report noted a diagnosis of adjustment disorder; that Ms Yang had not recovered from her condition; that she required treatment and that the Centre was a "significant factor in the onset of" the condition.

• [13] On 22 July 2024, Ms Yang was certified as having incapacity for work. On the same day, she appealed the decision to reject her worker's compensation claim.

• [14] On 5 August 2024, Ms Yang's worker's compensation claim was accepted on the basis that Ms Yang had a work-related psychological condition and an incapacity for work and required treatment.

• [15] On 29 August 2024, Ms Yang attended a case conference with her doctor, Dr Yang and her rehabilitation provider, Ms Christy Barni from Prestige Health Services Australia (PHSA). A medical certificate was issued certifying Ms Yang as fit for duties for 8 hours per day, 2 days per week, but with the restriction that she have "minimal contact with the previous ECT". "ECT" is an acronym for "Early Childhood Teacher" and reference to "previous ECT" was to Ms Violet Dizaji, the Centre's Toddler Room Educator. Ms Barni shared this information with the Centre in an email the same day and asked if she could come and do a workplace assessment the following week to assist with getting Ms Yang back to work.

• [16] On 30 August 2024, the Centre responded to Ms Barni agreeing to the site visit while raising concerns about the feasibility of Ms Yang's return to work, related to the set up of its Centre and its obligations under the Education and Care Services National Law Act 2010 and related staffing considerations. It also advised that outstanding performance concerns in relation to Ms Yang had not yet been addressed with Ms Yang and that this would occur upon her return.

• [17] On 13 September 2024, Ms Barni attended the Centre to undertake a workplace assessment. According to the Centre, Ms Barni told Ms Hatzinicolaou and two other Centre representatives that it would not be feasible for Ms Yang to return under the current restriction that contact be minimised between Ms Yang and Ms Dizaji.

• [18] On 14 November 2024, Ms Yang wrote to the Centre about meeting with a psychiatrist. This appears to have prompted Ms Hatzinicolaou to write to Ms Barni and ask for an update in relation to Ms Yang's return to work.

• [19] On 14 November 2024, Ms Barni responded to say that "at this stage" the return-to-work goal was "still new employer" and that a vocational assessment had recently been completed with Ms Yang with the goal of identifying suitable employment options for her. The response noted that Ms Yang had been approved for job seeking services and would commence seeking new employment. It also advised of a medical review with QBE, Ms Yang and her doctor at the end of November 2024.

• [20] On further prompting, Ms Barni wrote again to Ms Hatzinicolaou to advise that "the current goals of the [worker's compensation] claim are for Ms Yang to either find new employment - or for her to obtain a final pre-injury duties certificate (which means that she has recovered from the injury - and that there are no restrictions with regards to her working abilities)". Ms Barni stated that the upcoming medical case conference was scheduled for 28 November 2024 and that QBE would be presenting Ms Yang with the option of pre-injury duties, but that she was unsure how this would be received.

• [21] On 29 November 2024, Ms Yang wrote to the Centre to say that her work capacity certificate had been updated for the period from 30 November to 30 December 2024. She requested approval for annual leave from 24 December 2024 to 17 January 2025. The Centre was unsure about the annual leave request and forwarded it on to Ms Barni for advice.

• [22] On 30 January 2025, there was a further medical case conference with Ms Yang and her doctor. A certificate of capacity was issued for the period from 30 January 2025 to 28 February 2025. The management plan in the certificate for this period was "1/ cont psychological treatment 2/ help to seek for new jobs of different employers". Ms Yang was certified as "fit for some type of employment" for 20 hours per week during the period of the certificate.

• [23] On 5 February 2025, Ms Barni wrote to Ms Hatzinicolaou with an update from the medical case conference on 30 January 2025. She also provided it with a copy of the certificate of capacity to 28 February 2025. Ms Barni advised that Ms Yang was continuing to engage in job seeking with an employment consultant; was considered to be independent in job seeking and had been requested to commence submitting job seeking logs with PHSA as evidence of seeking new employment. Ms Barni stated that PHSA's goal was to source paid employment for Ms Yang.

• [24] On 5 February 2025, the Centre wrote to Ms Yang asking her to show cause why her employment should not be terminated on the basis that she was unable to perform the inherent requirements of her position. The proposed termination relied on advice from Ms Barni that Ms Yang was unable to return to the workplace and was being assisted to find alternative employment. The letter requested "some important information to help us assess the situation in relation to our operational needs" as it was "finding it increasingly difficult to maintain the operational requirements of our services in compliance" with the regulatory regime.

• [25] On 5 February 2025, Ms Yang replied to the show cause notice. Her response raised concern about the Centre's failure to adequately address her workplace bullying concerns and advised that her work capacity had been updated to 20 hours per week. The response disagreed took issue with an assertion not made by the Centre that her "available hours" were "incompatible with operational needs". It also advised of the Centre's obligation to make reasonable adjustments and said that termination on the basis of incapacity appeared premature and potentially unlawful. The response requested a comprehensive review of Ms Yang's case, including the bullying incidents and the impact on Ms Yang's health. A meeting was also proposed to discuss aligning her current capabilities with operational requirements through reasonable adjustments.

• [26] On 7 February 2025, Ms Hatzinicolaou responded to Ms Yang. She asked:

"As previously communicated, the rehabilitation provider has indicated that you are participating in a return-to-work program and you are unable to return to Nought to Five Early Childhood Centre. Consequently, the provider is assisting you in securing alternative employment. Can you please confirm if this is accurate?"

• [27] On 7 February 2025, Ms Yang provided a response to Ms Hatzinicolaou. The question she had been asked was not answered directly. The assertion that she was unable to return to work with the Centre was described as inaccurate on the basis that because her rehabilitation was conducted online, she had flexibility to schedule sessions without conflicting with work, should a suitable plan be provided by the Centre. Ms Yang's response asserted a "notable absence of a structured return-to-work plan" or any proactive communications from the Centre. It renewed the workplace bullying concerns and sought clarification about what the Centre had done in that regard. Again, a meeting was requested to discuss "a comprehensive and actionable return-to-work plan" considering her "current capabilities and the operational needs of" the Centre. Finally, the response advised that Ms Yang was committed to contributing positively to the team if the necessary support and adjustments were made to accommodate her return.

• [28] On 12 February 2025, Ms Yang's employment was terminated on the basis of inability to perform the inherent requirements of the position.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to Ms Yang?

• [29] On the limited medical evidence available as at the date of termination on 12 February 2025, Ms Yang was not certified as fit to return to work at the Centre. Her treatment plan was directed at helping her to find new employment with a different employer. It was in this context that Ms Yang was certified as fit for "some work" for 20 hours per week.

• [30] At the time of dismissal, Ms Yang's incapacity for work at the Centre had been ongoing for almost 12 months. There was no medical or other evidence to indicate that she was likely to return to work at the Centre either in the reasonably foreseeable future or at all. The only hint of such a return was found in the responses given to the show cause letter and follow up query summarised above. These submissions were unsupported by evidence and were inconsistent with her doctor's advice that Ms Yang was fit for some work, but not for work at the Centre. I return to these submissions later in my reasons.

• [31] For these reasons, I am satisfied that the Centre had a valid reason for the dismissal of Ms Yang.

Was there an opportunity to respond to any capacity or conduct related reason?

• [32] Ms Yang was given an opportunity to respond to the reason for termination on the basis that she was unable to perform the inherent requirements of her position. The show cause letter on 5 February 2025 invited her response by 11 February 2025 and a response was provided by 7 February 2025.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

• [33] There is no evidence of any refusal to allow a support person to be present in discussions about the dismissal. Other than the written correspondence, there does not appear to have been any such discussions.

Was Ms Yang warned about relevant unsatisfactory performance?

• [34] This is not a relevant consideration.

Degree to which the size of the employer's business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

• [35] The Centre is not a small business employer for the purposes of the Act. It appears to have had access to industrial relations advice and assistance in connection with the procedures followed in effecting the dismissal. This is a neutral consideration.

• [36] Ms Yang's overall length of service was approximately 2.5 years, although she was absent from work on worker's compensation for almost 1 year that period. On termination, Ms Yang was paid 4 weeks' wages in lieu of notice of termination.

• [37] Neither the alleged bullying of Ms Yang nor the alleged performance or conduct issues said to have occurred in mid-February 2025 were established on the evidence, largely because the hearing was focused on the question of Ms Yang's capacity for work at the time of dismissal and considerations of fairness in that regard. It is not possible or necessary to make findings of fact about those matters other than by noting their early connection to Ms Yang's long period of absence from work.

• [38] Ms Yang relied on ChatGPT to assist in the preparation of her submissions in this case. Although she was not asked, and did not say so, it seems possible that she also relied on ChatGPT to assist with her responses to the show cause letter and follow up question described in paragraphs [25] and [27] above. This would explain why the responses did not answer the question asked by Ms Hatzinicoloaou directly and appear to have misconceived the issue in dispute as being one of refusal to make reasonable adjustments (by accommodating her restricted hours of work) instead of the actual issue, which was her (in)ability to return to work at the Centre at all.

• [39] If this is what occurred, it is an important reminder to those who would seek to rely on artificial intelligence tools to speak on their behalf, particularly when faced with language barriers. Such tools can be immensely useful, but they are no substitute for one's own knowledge and understanding of the facts or issues. Further, relying on documents without understanding what they say or mean is fraught with risk. In Ms Yang's case, it may be that use of these tools caused her to provide a response to the show cause letter that was misconceived and thus ineffective (as opposed to what she may have hoped, which was to enhance the effectiveness of her response).

• [40] On balance, I am not satisfied that the dismissal was harsh, unjust or unreasonable. The Centre was entitled to rely on the advice it had received from Ms Yang's doctor and from Ms Barni that Ms Yang was not fit to return to work at the Centre and was seeking alternative employment. The reason for dismissal was notified to Ms Yang in advance and she was given an opportunity to respond, which she acted upon (noting my observations about this above). There was no refusal of a support person to assist Ms Yang in any discussions, and none of the other relevant considerations tip the balance in favour of a finding of unfair dismissal.

• [41] It follows that Ms Yang has not been unfairly dismissed.

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