Fair Work Act 2009

s.394 - Unfair dismissal

Greater Bendigo City Council Trading AS City of Greater Bendigo

• [1] Mrs Mavis Rofe (the Applicant) worked as a School Crossing Supervisor with the City of Greater Bendigo (Bendigo Council) from 17 March 2008 to the date of her termination on 18 April 2024. It is clear that Mrs Rofe was deeply committed to her job and derived a lot of personal satisfaction and meaning out of it. She particularly loved the interaction with the children.

• [2] Since 2020 Mrs Rofe has suffered several physical injuries at work that have impacted her ability to perform her role to various degrees. Some of the injuries have resulted in workers' compensation claims.

• [3] On 18 April 2024, Bendigo Council terminated Ms Rofe's employment on the basis that she could no longer perform the inherent requirements of the role safely. In forming this view Bendigo Council relied on a doctor's report from an independent medical examination. The report was not provided to Mrs Rofe prior to or at the time of termination.

• [4] Mrs Rofe argues her termination was unfair. Mrs Rofe claims she could perform the inherent requirements of the role. Mrs Rofe contends she has physiotherapy reports that support this position. In addition, Mrs Rofe argues her termination was harsh, unjust and unreasonable because Bendigo Council did not notify her of the reason for termination or give her an opportunity to respond.

• [5] This decision considers Mrs Rofe's unfair dismissal claim.

• [6] This matter was heard at a Determinative Conference on 24 October 2024. Mrs Rofe was represented by Ms Ivana Smojver of Counsel. Bendigo Council represented itself, with Ms Carmel Rowan, Employee Relations Coordinator, presenting oral submissions. Mrs Rofe gave witness evidence in support of her application. Ms Sue Harrison, Acting Manager of Community and Health, gave witness evidence on behalf of Bendigo Council.

• [7] At the Determinative Conference, Bendigo Council sought to include written statements by Mrs Rofe relating to separate workplace injury proceedings. The Applicant objected to this on the basis that these documents were not yet in the public domain and in addition, under s.588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), information obtained under workers' compensation legislation must not be used for other purposes.

• [8] Evidence relating to Mrs Rofe's injuries and how they may, or may not, have impacted her ability to perform work is obviously very relevant to the determination of this matter. Accordingly, while I did not allow the Bendigo Council to file Mrs Rofe's pleadings or statements relating to other proceedings (or extracts of those pleadings or statements), I did allow Bendigo Council to give witness evidence relating to their knowledge of Mrs Rofe's workers' compensation claims. This included evidence relating to an independent medical examination required by the Council's Workcover insurer.

• [9] The following paragraphs outline the background to the matter. I note that significant portions of the background are contested between the parties. Where findings on contested points are required, they will be made later in the decision.

• [10] Mrs Rofe commenced employment with Bendigo Council in March 2008. Throughout her time with Bendigo Council, and at the time of termination, Mrs Rofe was employed in the role of School Crossing Supervisor. The position description for the School Crossing Supervisor (the Nabenet position description) states the purpose of the role is to ensure that:

"members of the public and school children can cross main roads and intersections in the immediate vicinity of their schools during school starting and finishing hours."[1]

• [11] The hours of work are between 8:05 - 9:05AM and 3:15 - 3:45PM on School Days.

• [12] The role requires the ability to "ambulate safely and independently" at various school crossings.[2] The role requires constant standing and walking,[3] including walking on uneven ground and stepping up and down curbs.[4]

• [13] On 23 November 2020, Mrs Rofe reported a workplace injury to Bendigo Council. Mrs Rofe had slipped when opening a gate at the school crossing, and as a result injured her back and leg. Mrs Rofe made a successful WorkCover claim in relation to this injury in August 2021 and ultimately had hip surgery in relation to the injury in July 2022. After a period of leave and light duties, Mrs Rofe recommenced her pre-injury hours and duties in November 2022.

• [14] Around 8 March 2023, Mrs Rofe's knee "jarred" as a result of a stepping movement she made during work when navigating a school crossing that she was not used to.[5]

• [15] On 4 May 2023, Mrs Rofe contacted Bendigo Council to report that she was in severe pain and was taking sick leave.

• [16] On 9 May 2023, Mrs Rofe met with Ms Sue Harrison, who at the time was Community Services Coordinator, and Ms Carmel Rowan, Employee Relations Coordinator.

• [17] There is significant disagreement regarding what was discussed at the 9 May 2023 meeting (and in further follow up meetings). Bendigo Council relies on the evidence of Ms Harrison, who claims that at the 9 May 2023 meeting:

• Mrs Rofe stated that she was in constant pain and intended to seek reinstatement of her weekly WorkCover payments;
• The Council advised Mrs Rofe of its concerns for her health and safety, and for the safety of the school community;
• The Council advised they would need to investigate Mrs Rofe's fitness to carry out the role; and
• The parties discussed placing Mrs Rofe on discretionary leave.

• [18] Mrs Rofe claims that the parties discussed her return to work at this meeting. She disputes that the Council raised any safety concerns with her, whether at this meeting or any further follow-up meetings relating to her employment. Mrs Rofe claims that the content of the discussion in this meeting and further follow up meetings was focused on when Mrs Rofe would be cleared to return to work.

• [19] Following this meeting, Mrs Rofe commenced a period of paid leave until 16 October 2023. While some of this leave was covered by Mrs Rofe's own sick leave or annual leave, the majority of paid leave was at the Council's discretion while they considered Mrs Rofe's fitness to return to work.

• [20] On 18 August 2023, Mrs Rofe received a report from her physiotherapist, Ms Shirein Henry. The report relevantly stated that Mrs Rofe was able to "walk/stand for up to 2 hours per day, 1 hour per session."[6] I note, there is a dispute in relation to whether Council received this report. Mrs Rofe states she provided the report to Council, while Council contends it did not receive this report as it formed part of the Workcover process.[7]

• [21] On 22 August 2023, at Council's direction, Mrs Rofe attended a functional capacity assessment undertaken by Physiotherapy Centre Bendigo. As part of the assessment, Council provided Physiotherapy Centre Bendigo with the Nabenet position description and asked the Centre to "please advise if [Mrs Rofe] can meet the inherent requirement of the role? If no, please explain why, timeframe if possible, to return to [m]eet [inherent] requirement, modification if required."[8]

• [22] Relevantly, the Nabenet position description specified that the work hours for a School Crossing Supervisor were "8:05am - 9:05am" and "3:15pm - 3:35pm," and that "constant standing" and "constant walking" were "critical physical demands" of the role.[9]

• [23] During the assessment, Mrs Rofe was assessed in day-to-day tasks including standing for five minutes, walking 100 metres, and carrying weights of up to 4kg. The report following the assessment (the PCB Report) states that Mrs Rofe has "no significant risk of injury for the proposed role" and further that there were "nil concerns for [the] role."[10]

• [24] After receiving the PCB Report, Ms Harrison contacted the physiotherapist to discuss the examination and raise several concerns the Council had regarding the PCB Report. One of these concerns related to the assessment of Mrs Rofe's ability to stand unaided. During the assessment the physiotherapist had monitored Mrs Rofe standing for 5 minutes. Bendigo Council believed that to make an accurate assessment the physiotherapist should have monitored her standing for 45 minutes.

• [25] Bendigo Council communicated to Mrs Rofe that they were not happy with the report, and did not believe the physiotherapist had put in the required time that they'd paid for.[11]

• [26] From 16 October - 16 December 2023, Council provided Mrs Rofe with temporary alternative duties performing "car counting" at the school.

• [27] Following the December 2023 - January 2024 school holidays, Mrs Rofe remained on discretionary paid leave.[12]

• [28] In January 2024, Mrs Rofe undertook an Independent Medical Examination (the First IME) in relation to her Workcover claim, arranged by Allianz, the Council's WorkCover insurer. In the First IME, the medical assessor indicated that they did not believe that Mrs Rofe had the capacity to perform pre-injury duties and hours. The outcomes of the First IME were reported by the Workplace Health and Safety Coordinator to the Bendigo Council employee relations team in March 2024.[13]

• [29] On 28 March 2024, the Council directed Mrs Rofe to attend a further Independent Medical Examination to specifically assess whether she could perform the inherent requirements of her role. The second IME (the Drewry IME) was conducted by Dr Alison Drewry, Consultant Occupational Physician.

• [30] The Drewry IME found that Mrs Rofe could not perform the inherent requirements of the role. In the report Dr Drewry states:

"In my opinion Ms Rofe's role, which includes walking access over uneven ground and stepping up and down kerbs, compromises her safety to herself, and therefore to others (supervising a risky activity of children). I have reviewed the position description and in my opinion from an expert medical point of view Ms Rofe is not fit to safely and effectively perform the inherent tasks of her role and there are risks to her health and safety if she carries out the requirements of the position.

I acknowledge that I have read the Expert Witness Code of Conduct and agree to be bound by it.

The contents of this report are true to the best of my knowledge and belief."[14]

• [31] The Drewry IME was not provided to Mrs Rofe.

• [32] On 18 April 2024, Mrs Rofe, Ms Anne-Marie Flood (Mrs Rofe's support person), Ms Harrison, and Ms Rowan attended a meeting. Ms Harrison presented and read out a termination letter to Mrs Rofe, terminating her employment. The termination letter relevantly states:

"It is with regret that I inform you that your employment with the City in the role of School Crossing Supervisor will be terminated, effective 18 April 2024.

This outcome was determined following the results of an independent medical examination, held by MLCOA Victoria on 4 April 2024. The examination was conducted by Dr. Alison Drewry, Consultant Occupational Physician.

This decision has been reached after careful consideration and is based on the inability to perform the essential physical tasks inherent to your position, and which guarantee the work can be conducted safely. It was the determination of the independent medical examiner that you are not fit to safely and effectively perform the inherent tasks of the role and there are risks to your health and safety if you were to continue to carry out the requirements of the position. It was also determined that the safety of children using the school crossing would be compromised.

Whilst the circumstances are unfortunate, please be assured that this decision is not a reflection of your work ethic or commitment to your role but is solely based on the physical requirements of the role.

As above, your employment is hereby terminated effective the date of this letter. As per the City's Enterprise Agreement, you will be paid five weeks' pay in lieu of notice and any outstanding statutory entitlements, payable in the next pay run."[15]

• [33] Following her termination Bendigo Council did not provide Mrs Rofe, or her treating general practitioner, with the Drewry IME. Mrs Rofe obtained the Drewry IME on 2 September 2024 following her lawyers filing a freedom of information request.

• [34] On 9 October 2024, Mrs Rofe's physiotherapist provided her with a report which relevantly states as follows:

"I can confirm that [Mrs Rofe] is capable of continuing with her work duties with the following considerations:

She is able to stand and/or walk for a total of up to two hours per day.

She can perform these activities for up to one hour per session.

She is capable of handling the majority of her household tasks with no significant limitations. However, tasks involving prolonged heavy lifting or strenuous physical activity should be limited if possible."[16]

Was the dismissal harsh, unjust or unreasonable?

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

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

(b) whether the person was notified of that reason; and

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

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

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

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

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

(h) any other matters that the FWC considers relevant.

• [36] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[17] I set out my consideration of each below.

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

• [37] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[18] and should not be "capricious, fanciful, spiteful or prejudiced."[19]

• [38] As stated in the termination letter, the reasons given by Bendigo Council for Mrs Rofe's termination were:

• Mrs Rofe's "inability to perform the essential physical tasks inherent to [her] position" and interrelatedly_,_

• • The inability of Mrs Rofe to conduct the role "safely" both in relation to herself and the school community.[20]

• [39] The overwhelming majority of oral and written submissions in this matter addressed the consideration of whether it was "sound, defensible or well founded" for the Bendigo Council to terminate Mrs Rofe on the grounds that she could no longer perform the inherent requirements of the role.

• [40] Mrs Rofe submits that there was no valid reason for her dismissal. Mrs Rofe argues she was able to perform the inherent requirements of the job in a safe manner. In support of this argument Mrs Rofe relies on the reports of her own physiotherapist dated 18 August 2023 and 9 October 2024, and the PCB report dated 22 August 2023.

• [41] Mrs Rofe contends that Bendigo Council's reasons for disregarding the PCB report are not credible. In particular Mrs Rofe, takes issue with Bendigo Council's claim that the physiotherapist should have monitored Mrs Rofe standing for 45 minutes. Mrs Rofe argues, neither Bendigo Physiotherapy nor Dr Drewry were asked to assess Mrs Rofe standing for 45 minutes before the assessment. Furthermore, Dr Drewry did not assess Mrs Rofe standing for 45 minutes. Therefore, if the PCB report is not satisfactory because it did not assess Mrs Rofe standing for 45 minutes, the same rationale should apply to the Drewry IME. The fact the Council is prepared to accept the Drewry IME despite Dr Drewry not assessing Mrs Rofe standing for 45 minutes, shows this is not the real reason for the Council rejecting the PCB report.

• [42] Mrs Rofe argues that the real reason Bendigo Council disregarded the PCB report was because they did not like the outcome which cleared Mrs Rofe for duties. Accordingly, Bendigo Council decided to, in effect, 'shop' for another opinion, and that is why she was sent to Dr Drewry.[21]

• [43] Mrs Rofe further argues that the Drewry IME should not be favoured over the reports of her own treating physiotherapist. She contends that Dr Drewry did not conduct a comprehensive examination of her knee or hip. While she was asked to perform multiple actions including walking, standing, and sitting, Dr Drewry never directly examined or touched Mrs Rofe's knee or hip during her assessment. Mrs Rofe highlights Bendigo Council's failure to call Dr Drewry as a witness and submits that I should draw an appropriate inference from this omission that more detailed evidence of Dr Drewry would not assist the Council's case.

• [44] Mrs Rofe further points to the fact that she had performed the car counting activity over October to December 2023. Mrs Rofe argues that this role was more strenuous than her usual role as a School Crossing Supervisor and therefore shows she could perform the inherent physical requirements of the School Crossing Supervisor role.

• [45] In the alternative Mrs Rofe, who at the time of termination was 84, argued she had been terminated because of her age, which cannot be a valid reason.

• [46] Bendigo Council contends it had two valid reasons for termination. Firstly, Council argues Mrs Rofe could not perform the inherent requirements of the role. Secondly, Council has a duty of care to ensure the safety of both Mrs Rofe and to the community, and as Mrs Rofe could no longer perform the role safely, termination was justified.[22]

• [47] Bendigo Council argues that they were entitled to find that Mrs Rofe could not perform the inherent requirements of the role at the time of termination. In support of this they relied on the following evidence:

• • Observations by Mrs Harrison that when Mrs Rofe attended meetings, Mrs Rofe had restricted movement[23];

• The First IME finding that Mrs Rofe was unable to perform pre-injury duties; and
• The Drewry IME which concluded Mrs Rofe could not perform the inherent requirements of the role.

• [48] In relation to Mrs Rofe's claims that the Council should have accepted the

PCB report, the Council argues the physio report was not satisfactory because it had not properly assessed whether Mrs Rofe could perform the inherent requirements of the role and was inconclusive.[24] In particular, the Council claims:[25]

• The physiotherapist did not assess Mrs Rofe's capacity to stand unaided for 45 minutes.
• The PCB Report did not assess Mrs Rofe's capacity for quick response if required.

• • The PCB Report had not commented on potential for further injury or risk to safety, which was an essential requirement of the Council brief.[26]

• [49] Bendigo Council argues they were entitled to place more weight on the Drewry IME than the PCB report because the IME was performed by a qualified medical professional as opposed to an allied health professional.[27]

• [50] In any event, Council contends that the Drewry IME was not in response or "sequential" to the PCB report, but separate and in response to the First IME.[28]

• [51] Council disputes Mrs Rofe's claim that the alternative duties of car counting was more physically taxing than the school crossing work. Council relied on evidence from Ms Harrison that, unlike the School Crossing Supervisor role, the role of counting cars was a sedentary role that could be performed seated in a car, or leaning against something for support.[29]

• [52] Finally, Council argues that the termination had nothing to do with Mrs Rofe's age and Ms Harrison provided witness evidence that Council employs 25 or more staff over the age of 70 and 3 or 4 staff over the age of 80.[30]

• [53] In determining whether there was a valid reason relating to whether Mrs Rofe could perform the inherent requirements of the role at termination, I have placed particular focus on the medical evidence before me, as opposed to Mrs Rofe's own opinion of her condition or Ms Harrison's observations.

• [54] A key consideration relating to valid reason in this matter is whether it was reasonable for Council to accept the outcomes of the Drewry IME, given the various physiotherapy reports providing seemingly counter views on Mrs Rofe's work capacity.

• [55] I note that neither party called the authors of the medical reports to give evidence, despite being on notice the other side disagreed with aspects of the reports. Generally, except where stated otherwise below, I have accepted the reports on face value. I set out my consideration to each of the medical reports below.

1. The Henry Physio Reports (the Henry Reports)

• [56] Mrs Rofe sought to rely on two physiotherapist reports from her treating physio, Shirein Henry, to argue she could perform the inherent requirements of the role at termination. I have not placed significant weight on the Henry Reports for the following reasons.

• [57] Firstly, neither of the reports address whether Mrs Rofe could perform the inherent requirements of the role at the time of termination. The first Henry Report dated 18 August 2023 was conducted some 8 months prior to Mrs Rofe's termination date. The second Henry Report was conducted 9 October 2024, almost 6 months after Mrs Rofe's termination.

• [58] Secondly, neither of the Henry Reports adequately address whether Mrs Rofe can perform all the aspects of the role. Both the Henry Reports state that Mrs Rofe can stand and/or walk for up to 2 hours per day, 1 hour per session. In addition, both Reports indicate Mrs Rofe is capable of handling the majority of housework on her own. While the Henry Reports address a significant part of the inherent requirements of the role - namely the ability to stand and/or walk up to an hour per session, the Reports do not provide detail around other inherent requirements. In particular, the Henry Reports do not reference the ability to walk safely on uneven ground and/or to step up and down curbs. This is particularly relevant given Mrs Rofe's previous injuries and physical concerns related to these actions, and the fact her physiotherapist was aware of this.[31]

• [59] Accordingly, the Henry reports do not provide adequate evidence that Mrs Rofe could perform the inherent requirements of the role at the time of termination.

1. The Physiotherapy Centre Bendigo Report (PCB Report)

• [60] The PCB Report provides a detailed report assessing Mrs Rofe's abilities against the Nabenet job description.[32] The PCB Report concludes that Mrs Rofe is able to "complete her pre-injury duties" and therefore, perform the inherent requirements of the job.

• [61] Bendigo Council provided evidence that upon receiving the PCB Report they had multiple concerns regarding the report. In particular, the Council claimed:[33]

• The physiotherapist did not assess Mrs Rofe's capacity to stand unaided for 45 minutes, because the physio only monitored Mrs Rofe standing for 5 minutes, not 45 minutes.

• • The Report did not assess Mrs Rofe's capacity for quick response if required;[34] and
• • The Report had not commented on potential for further injury or risk to safety, which was an essential requirement of the Council brief.[35]

• [62] While the PCB were provided with the Nabenet job description which makes clear School Crossing Supervisors will need to stand or walk for up to an hour at a time, there was no evidence before me to suggest that PCB were initially requested by the Council to monitor Mrs Rofe actually standing for 45 minutes. While I accept that the Council may have had concern that the physio only assessed Mrs Rofe standing for 5 minutes, I am not convinced that a physiotherapist needs to monitor someone actually standing for 45 minutes to make an assessment on their ability to stand for that period.

• [63] In addition, it does not appear that the PCB were asked, in the first instance, to assess Mrs Rofe's capacity for quick response.

• [64] In relation to Bendigo Council's claim that the PCB Report does not adequately address risk of further injury, I note that while the report confirms there is "no significant risk of injury for the proposed role", when asked to comment on "Potential Injury Risks" the report states "Not scored... as much of the assessment not appropriate." The PCB Report then refers to further assessments, but does not make any further comment in relation to potential injury risk.

• [65] Given the above, I accept Bendigo Council's evidence that the PCB Report had not adequately addressed all their concerns. I accept that it was reasonable for Bendigo Council to seek more evidence regarding Mrs Rofe's ability to perform the inherent requirements of the role prior to allowing her to return to work.

• [66] In my view the Council should have taken steps immediately following receiving the PCB report to get additional medical evidence regarding Mrs Rofe's condition to address its concerns. I acknowledge that Mrs Rofe was on paid leave. I also acknowledge Council's evidence that given Mrs Rofe was undertaking other medical examinations relating to her WorkCover claim, they did not want to duplicate the process.[36] However, when an employee is being suspended from work, the obligation is on the employer to take reasonable steps to facilitate a return to work as soon as possible. The significant delay between the PCB Report and the Drewry IME has also been a complicating factor in this matter.

• [67] Taking into account all the above factors, I have given the PCB Report some weight in my consideration of whether there was a valid reason for termination. I accept the PCB Report as evidence of a physiotherapist report that concludes Mrs Rofe could perform the inherent requirements of the job on or around 23 August 2023. However, I am unable to assign the report any greater weight because of two significant limitations on the report. Firstly, its assessment of potential future injury is ambiguous, and secondly, it was conducted almost 8 months before termination.

• [68] The Drewry IME- an independent medical examination conducted by Doctor Alison Drewry dated 11 April 2024 - concludes Mrs Rofe cannot perform the inherent requirements of the job and continued performance of the role would compromise Mrs Rofe's safety and the safety of others.

• [69] The IME is a 10-page report which includes consideration of Mrs Rofe's previous medical history and an assessment with Mrs Rofe. Dr Drewry attempted but was unable to contact Mrs Rofe's treating practitioner. Dr Drewry confirms that the content of the report are true to the best of her knowledge and belief, and agrees to be bound by the Expert Witness Code of Conduct.

• [70] As noted above, Mrs Rofe seeks to raise issue with the Drewry report. Mrs Rofe argues Dr Drewry did not conduct a proper examination because she did not directly examine or touch her knee or hip.[37] In addition Mrs Rofe claims the Henry Reports and the PCB Report provide competing medical evidence.

• [71] While I understand Mrs Rofe may have preferred Dr Drewry to examine her in a different way, Mrs Rofe's subjective view of Dr Drewry's examination, on its own, is not enough to make me question the veracity of the Drewry IME.

• [72] Furthermore, I have determined that none of the medical evidence presented by Mrs Rofe offers any significant challenge to the veracity of the Drewry IME. For the reasons given above I find that both of the Henry Reports do not provide evidence in relation to Mrs Rofe's ability to perform the inherent requirements of the job at the time of termination. In addition, I do not consider the PCB Report provides adequate competing medical evidence for the following reasons:

• First, while the PCB Report provides a physiotherapy report concluding Mrs Rofe could perform the inherent requirements of the role in August 2023, it does not provide a relevant assessment of whether Mrs Rofe could perform the inherent requirements of her role at the time of termination, almost 8 months later.
• Second, while I acknowledge that allied professionals play an extremely important role in our health system and in assisting workers return to work, I also accept Bendigo Council's submission that an IME conducted by a specialist medical professional generally holds more weight than a physiotherapist report.

• [73] Accordingly, I take the Drewry IME at face value as an independent medical report conducted by a medical specialist, bound by the Expert Witness Code of Conduct.

• [74] Taking into account all the circumstances of this matter, and the submissions and evidence before me, I have determined there was a valid reason for termination relating to Mrs Rofe's capacity to perform the inherent requirements of the role safely.

• [75] In March 2024, the employee relations team at Bendigo Council were informed of the results of an IME conducted in January as part of Mrs Rofe's WorkCover claim. The Council was informed that the medical professional who conducted the IME had concluded they did not believe Mrs Rofe had the capacity to perform pre-injury duties and would struggle with modified duties.[38]

• [76] The First IME report was not in evidence. The Applicant objected to any reference to the First IME in evidence on the basis of relevance, arguing that the report went to assessing Mrs Rofe's impairment rather than whether she could perform the inherent requirements of the role. I am of the view that evidence relating to the First IME is relevant because medical evidence which considers Mrs Rofe's physical capability is clearly a fundamental matter relevant to whether she can perform the inherent requirements of the role. Ultimately it was uncontested that the First IME, amongst other things, concluded Mrs Rofe impairment restricted her from performing her role. It was also uncontested that the results of the first IME were provided to Bendigo Council and that this led the Council to book a further IME specifically assessing Mrs Rofe's ability to perform the inherent requirements of the role.

• [77] The Drewry IME then confirmed the outcomes of the First IME in relation to capacity and found Mrs Rofe could not safely perform the inherent requirements of the role.

• [78] I reject Mrs Rofe's argument that Bendigo Council was "shopping" for medical reports. As stated above, ideally Council would have acted sooner in securing a further medical assessment after the PCB Report. However, ultimately the Drewry IME was required - not in response to the PCB report - but because of the outcomes of the First IME. This was a necessary and responsible reaction by the Council after receiving information about the First IME. Indeed, to allow Mrs Rofe to return to work after receiving this information would have been negligent.

• [79] For reasons given above, I also reject Mrs Rofe's submission that there was competing medical evidence at the time of termination.

• [80] Accordingly, at the time of termination, the relevant medical information before the Council was the Drewry IME which confirmed the outcomes of the First IME. I am of the view that it was reasonable for the Council to conclude on the information before them that Mrs Rofe was unable to perform the inherent requirements of the role.

• [81] For completion, I note that I do not need to determine whether the car counting alternative duties performed in October- December 2023 were more or less strenuous than the School Crossing Supervisor duties, as ultimately this does not shed light on whether Mrs Rofe could perform the inherent requirements of the School Crossing Supervisor role in April 2024.

• [82] I further reject Mrs Rofe's argument that the real reason for termination was based on her age. This argument was not further developed in written submissions or at the Determinative Conference. I accept Mrs Harrison's evidence that the Council employs a number of workers in their seventies and eighties.[39] I accept that the reason for termination was that Mrs Rofe could not perform the inherent requirements of the role, not her age.

1. Was the Applicant notified of the valid reason?

• [83] For the purposes of s.387(b), notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[40] and in explicit, plain and clear terms.[41]

• [84] Mrs Rofe was not explicitly told the purpose of the meeting on 18 April 2024. It was also uncontested that the Council did not provide Mrs Rofe with a copy of the Drewry IME prior to the termination meeting. Mrs Rofe only obtained a copy of the Drewry IME a considerable time after her termination - on 2 September 2024 - after her lawyer made a freedom of information request.[42]

• [85] Bendigo Council argues that, in effect, it gave notice because it should have been reasonably apparent to Mrs Rofe that she may be terminated on grounds she could not perform the inherent requirements of the role given she was on paid leave pending assessment of her capabilities and previous meeting relating to this. Bendigo Council further submits that "Mrs Rofe was made fully aware of the purpose of the Independent Medical Examination; she specifically asked if that would end her employment and was advised that the outcome could not be pre-empted, but that was a possibility depending upon the assessment outcome."[43]

• [86] In relation to Council's failure to provide Mrs Rofe the Drewry IME, Ms Harrison gave evidence that she believed Dr Drewry would release the report to Mrs Rofe's treating doctor.[44]

• [87] Mrs Rofe submits she was not notified of the reason for termination prior to termination. Mrs Rofe disputes that the meetings with Council put her on notice that she was going to be terminated. Mrs Rofe claims the meetings leading up to 18 April 2024 were about when she could return to work.

• [88] I am of the view, that despite Mrs Rofe's claims regarding her meetings with Council, it should have been reasonably apparent to Mrs Rofe that her employment with Bendigo Council was under consideration. At the time of termination, excluding the period of the car counting alternative duties and Christmas school holidays, Mrs Rofe had been on some form of paid leave for approximately 8 months. It is also clear from the evidence that Mrs Rofe understood that Bendigo Council had placed her on discretionary leave because of her injury and concerns about the role - she just disagreed with the Council's position.[45] In oral evidence Mrs Rofe conceded "Meetings [with the Council] have never meant anything to me, because I wasn't getting anywhere with [them]."[46]

• [89] However, ultimately it is not enough for it to be reasonably apparent to Mrs Rofe that Bendigo Council might terminate her employment at some stage. Bendigo Council needed to notify Mrs Rofe in explicit, plain and clear terms that they were considering termination on 18 April 2024 on the grounds she could no longer perform the inherent requirements of the role safely.

• [90] As part of this notification, it was also incumbent on the Council to provide Mrs Rofe with the Drewry IME. This is because the termination letter makes clear that the Drewry IME is fundamental to the Council's decision to terminate.[47] The Drewry IME clearly indicates that the Report may be released to Mrs Rofe via her treating practitioner. It seems incredible to me that Mrs Rofe had to go through a freedom of information process to access a medical report relating to her that was fundamental in Council's decision to terminate her.

• [91] In any event, I find that Bendigo Council did not notify Mrs Rofe of the reasons for termination prior to termination.

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

• [92] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[48]

• [93] Given Mrs Rofe was not notified of the reasons for termination nor provided with a copy of the Drewry IME, it follows that Mrs Rofe had no opportunity to respond. Ms Harrison conceded Mrs Rofe was not given an opportunity to "defend her position" in cross examination.[49]

• [94] Withholding the Drewry IME, when it was fundamental to the decision to terminate, denied Mrs Rofe procedural fairness in responding to the reasons for termination.

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

• [95] It is uncontested that Mrs Rofe was allowed to have a support person in all meetings relating to her work, up to and including the termination meeting on 18 April 2024.

1. Was the Applicant warned about unsatisfactory performance before the dismissal?

• [96] There was no suggestion by either party that the termination related to performance. In fact, the evidence before me is that Mrs Rofe was a dedicated worker who loved her job, and she in turn was loved by the school community.

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

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

• [97] In relation to considerations under s.387(f) and (g), the Applicant submits that Bendigo Council is an employer of considerable size and Bendigo Council submits that they only have three employee relations staff. Ultimately, I do find any matters considered under s 387(f) or (g) of any relevant weight in determining whether the termination was unfair.

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

• [99] Bendigo Council submits that the Commission should take into account the fact that Council provided significant paid discretionary leave to Mrs Rofe for many months prior to termination.

• [100] The Applicant submits that the Commission should take into account the devastating impact the termination has had on Mrs Rofe.

• [101] I want to acknowledge the difficult situation facing Council where it had to balance concerns regarding Mrs Rofe's capacity and safety issues, Mrs Rofe's ongoing workers' compensation claims and Mrs Rofe's clear desire to return to work. Council's provision of a significant period of paid leave was Council's attempt to do this in a respectful way. However, as stated above, it was not at all ideal that Mrs Rofe was left on leave for such an extended period of time awaiting an assessment of her ability to perform the inherent requirements of the role.

• [102] I accept the Applicant's submission that the termination has had a devastating impact on Mrs Rofe. Mrs Rofe clearly adored her role as a School Crossing Supervisor and has stated that her role helped her feel that she was part of, and contributing to, her local community. It could be said that Mrs Rofe's job was an effective doorstop which allowed her to keep the door open to financial independence and valuable community engagement. Mrs Rofe sees the removal of this doorstop as shutting the door on a meaningful part of her life. I have taken into account the significant impact on Mrs Rofe in determining this decision.

• [103] Taking into account all the circumstances of this matter and the considerations under s.387 of the FW Act, on balance, I find that Mrs Rofe's termination by Bendigo Council was unfair. While I find that Bendigo Council had a valid reason to terminate Mrs Rofe based on her inability to perform the inherent requirements of the role safely, the Council's failure to adequately notify her of the reasons for the termination and to give her an opportunity to respond, particularly in the context of the devastating impact the termination was likely to have on Mrs Rofe, means the termination was procedurally unfair and harsh.

• [104] I find that had Mrs Rofe been notified of the reasons for possible termination and provided with the Drewry IME she would have undoubtedly tried to challenge the reason for termination. I make this finding noting from the time Mrs Rofe was placed on discretionary leave she challenged Council's view that she did not have capacity to work. A reasonable process would have been to afford Mrs Rofe the opportunity to discuss the Drewry IME with her treating doctor, and then potentially to obtain a further IME in an attempt to challenge Council's reasons. It is likely this process may have taken between 6 - 10 weeks depending on the availability of the relevant medical professionals.

• [105] On the evidence before me, I am of the view that it is highly improbable that Mrs Rofe would have obtained medical evidence that she could perform the inherent requirements of the role at the time of termination. I make this finding on the following basis:

• Both the first IME and the Drewry IME confirmed Mrs Rofe did not have capacity to perform work duties.
• For reasons given above, there was no compelling medical evidence before me to suggest Mrs Rofe could perform the inherent requirements of the role at termination. I note this absence of relevant medical evidence takes place in the context of Mrs Rofe and her lawyers pursing a number of work injury claims against Bendigo Council, which would require numerous medical assessments.

• [106] Had Bendigo Council allowed Mrs Rofe the opportunity to respond, in the highly probable event that no contradictory medical evidence was presented, Bendigo Council would have been entitled to terminate Mrs Rofe's employment. Ultimately, however, Mrs Rofe was entitled to the opportunity to properly respond.

• [107] Accordingly, I find that had Mrs Rofe been given the proper opportunity to respond, her employment was likely to have lasted up to a further 6- 10 weeks. In determining Mrs Rofe should be compensated for 10 weeks, I have taken into account the criteria under s 392(2) of the FW Act, including considering Mrs Rofe's considerable length of service[50] and the fact she is unlikely to be in paid employment again.[51] Based on the agreed calculations submitted by the parties, 10 weeks at Mrs Rofe's applicable rate at the time of compensation equates to $2,392.80. I therefore order Bendigo Council to pay Mrs Rofe $2,392.80 in compensation.

[1] Digital Hearing Book (DHB) page 78 Nabenet Job description

[6] Attachment 1 to Exhibit A4, DHB page 47

[10] Attachment 2 to Exhibit A4, DHB page 55

[13] DHB page 62, Harrison witness evidence

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

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

[32] See R4 - email from Bendigo Council to PCB attaching Nabenet job description

[40] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [151].

[41] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[42] Rofe Statement 7. F-G DHB page 99-100

[48] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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