2nd April 2020

 Background

For a period of over one year the employee suffered from a series of “health events” which resulted in him collapsing unconscious at work for up to five minutes. On one occasion he sustained a further injury when he hit his head whilst falling to the ground.

Each incident resulted in him needing time off work to recover. Three of the episodes necessitated an ambulance being called and him being taken directly to the local hospital.

After each event the employer requested a medical clearance for the employee to return to work. 

To ensure the Health and Safety of this and all employees the employer requested medical advice on the illness, in particular what work could he undertake so they could establish suitable duties in an alternate role. For a period the employee was placed in a suitable role with the night shift but the employee requested a return to day shift which his doctor advised would not be detriment to his health.

Despite requesting the medical advice on a number of separate occasions the information was never forthcoming.

After a further health event the company had no choice but to terminate the employee in late 2019. The company met all their obligation under the Fair Work Act by providing pay in lieu of notice and the payment of any outstanding accruals.

Despite having followed the appropriate procedures the ex-employee lodged an Unfair Dismissal application and the application was listed for a telephone conciliation within the month.

The company approached AMIC for assistance and both parties worked closely together in preparation for the conciliation.

A telephone conciliation is the first step in the resolution of a dispute. The conciliation is convened by a Fair Work Conciliator who listens to both parties for the purpose of trying to reach an agreement. The conciliation process is between 70% and 80% successful.

The telephone conciliation was for 9:15am but by 9:30am we were informed that neither the applicant (the ex-employee) nor their representative (the Union) were available for the conciliation. Consequently the conciliation did not go ahead and the applicant was sent a please explain letter from Fair Work Commission as to why they were unavailable.

The Commission contacted the Applicant providing a further date for conciliation. Again the applicant and their representative failed to attend.

If conciliation fails by a non-attendance or no agreement being reached the applicant has the right to request the issue proceed to arbitration, which the union did.

Arbitration is in essence a court case, with a Member of the Commission, presenting of evidence, witnesses and witness statements, and questioning witnesses. It can also be very costly as a solicitor is generally required to argue points of law and cross examine witnesses.

Following the procedures for an arbitration hearing the Fair Work Commission contacted both parties with the dates by which they needed to provide their evidence.

Even when granted an extension of time by the Fair Work Commission the applicant failed on two occasions to submit their evidence leaving the Fair Work Commission no choice except to dismiss the application.

Conclusion

It is possible that the ex-employee lodged the application with no intention of engaging in the process. It is not uncommon for this to occur. But nonetheless it was a good outcome for our member. Given the weak case of the applicant it was predictable that the outcome would have been the same had the matter gone to arbitration. However it would have been a far greater financial burden on the company. 

Upon reflection there a few points worth mentioning, the positives being;

  1. AMIC and the company worked closely together to prepare for the conciliation,
  2. The company kept very good records of each medical event, incident reports, and the associated meetings with the employee,
  3. The owner of the company was articulate and able to provide clear and concise instruction to AMIC in regards to their preferred outcome.

 

Lesson to remember

The only fault (if it can be called that) of the company was to be too lenient with the employee in providing the requested medical advice.

Ideally it would have been better to provide the employee with a time limit to produce the requested information.