FWC rules unfair dismissal in 'bullying' case but rejects compensation claim

Commission says case is 'unusual'

FWC rules unfair dismissal in 'bullying' case but rejects compensation claim

In a recent decision from the Fair Work Commission (FWC), an application for an unfair dismissal remedy was dismissed because the applicant did not suffer financial loss due to receiving workers compensation payments.

The FWC said that there was no valid reason for dismissal and that it was "procedurally unfair," but the applicant rejected reinstatement.

The applicant applied under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy against her employer, Teewah Power Co Pty Ltd (Teewah Power). The latter operates a health centre in Noosa.

The applicant was a part-time medical receptionist from October 2011 and was dismissed in February 2021 caused by her "incapacity to perform her role" due to absences brought by a workplace injury.

According to records, she suffered a compensable psychological injury that arose from "reasonable management action taken in an unreasonable way." The applicant alleged that it was due to the "bullying" that she experienced from the director of Teewah Power. She also said that she suffered "significant emotional stress," and the injury "persists to the present day."

In her application before the FWC, it ruled that there was no valid reason for her dismissal. The FWC said that there was no evidence that her incapacity made "an impact on the employer at the point she was dismissed." It added that there was also no evidence of financial issues if the employer continued to pay her superannuation or other costs during her absence, either at the time of the dismissal or at the point her unfair dismissal application was heard.

It was also found that the employer "took no steps to communicate with the applicant about the expected duration of her absence before deciding to dismiss her," contrary to protocol. Thus, the FWC said there is no "sound, defensible or well-founded reason" for her dismissal.

Despite the FWC's decision that the applicant was unfairly dismissed, it did not grant her application for compensation.

The FWC noted that the applicant received workers compensation payments equal to the full amount of her weekly wage from 26 August 2020 and continues to receive those payments. If the applicant remains unfit for normal work, she will continue to receive said payments until 26 August 2022.

The applicant did not seek reinstatement and contended that it would be "inappropriate because of the nature of her injury." She added that she fears that she would be "subjected in the future to further behaviour of the kind that led to the injury."

Based on the FWC's computation, the applicant's case is "unusual" because she has suffered no loss of income because of the payments already being given to her. The FWC said that "other than an amount of superannuation, which could have been entirely mitigated had she accepted an offer of reinstatement," it did not find that it was appropriate to award compensation.

The FWC further emphasised that "a decision to award compensation to a person found to be unfairly dismissed" is discretionary.

The decision was handed down on 15 November 2021.

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