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Dismissal valid despite HR’s “failure” to take appropriate action

Dismissing an employee without a valid reason or without a fair process can leave an employer without grounds to defend an unfair dismissal application. However, this is not always the case. In a recent matter, the Fair Work Commission (FWC) found the employer had a valid reason for dismissal and this overcame poor employment practices when determining whether the dismissal was unfair. The employee’s inability to perform the inherent requirements of her role was a determining factor in this decision and ultimately overcame the employer’s failure to adequately investigate allegations of workplace bullying. In the decision, DP Booth reminds employers not to ignore allegations of workplace bullying or harassment: “The art of good human resource practice includes responding to signals as well as addressing issues raised through formal channels”.

Ms Sao Valadao Duarte was employed by the Paraplegic and Quadriplegic Association of NSW (ParaQuad) from 25 June 2009 until she was dismissed on 8 August 2016.

Despite some “regrettable” lapses in the process undertaken, the FWC ruled that the HR Manager’s decision to terminate the employee was not harsh, unjust or unreasonable because it related to her capacity to perform her job. Interestingly DP Booth found this would remain the case even if it was clear from the available evidence that the psychological condition that caused Ms Duarte’s incapacity arose due to bullying in the workplace.

In March 2016, Ms Duarte emailed the CEO of ParaQuad raising several workplace issues which she felt had adversely affected her work performance and health. The CEO advised that he would monitor the situation, but did not send the email to HR.

In April 2016, the HR Manager sent a letter to Ms Duarte and advised her to attend a fact-finding meeting in relation to allegations she had altered a client’s weekly medication without authorisation.

Except for attending the fact-finding meeting, Ms Duarte was then absent from work from 28 April 2016 until her dismissal saying she had to take time off work because of a workplace injury and illness due to alleged bullying she was experiencing at work.

The results of a medical evaluation deemed the employee incapable of carrying out the inherent requirements of her job due to a major depressive disorder. After the employee failed to respond to a show-cause letter, the HR Manager terminated her employment.

Ms Duarte claimed that her dismissal was unfair because she was subjected to workplace bullying over a lengthy period and was provided with no assistance following her complaint about it. She also alleged the fact-finding meeting was targeted at her and made her feel as though she was being “groomed for dismissal”.

The FWC criticised ParaQuad for failing to adequately address Ms Duante’s email to the CEO and investigate the bullying allegations raised during the course of the medical evaluation (though noted there was no evidence before the FWC to substantiate the bullying allegations). The FWC also commented that “regrettably” the HR Manager did not “extend a conciliatory hand” to Ms Duante upon learning of the allegations, but rather simply terminated her employment.

Despite this, the FWC found there was a valid reason for dismissal and ParaQuad had afforded the employee procedural fairness, commenting that although “it is unfortunate that ParaQuad did not seek to address Ms Duarte’s allegations as to the reasons for her incapacity in any substantial way this is ultimately a question of good employment practice and does not outweigh Ms Duarte’s inability to carry out the inherent requirements of her job.”

Sao Duante v The Paraplegic & Quadriplegic Association of NSW [2017] FWC 175

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