IBM Australia has lost an unfair dismissal case before the Fair Work Commission but has been spared the need to pay any compensation after it was found an employee used the process as a “forum to criticise” a former colleague.
The ruling follows a similar case in 2013 in which Ingham’s lost an unfair dismissal case against an employee who was judged to have abandoned his employment, but received harsh treatment from the company due to his experience and medical situation.
Since June 2010, Kylie Jeffrey had been employed with IBM as a business analyst, after transferring to the company from the Qantas/IBM Indigenous Information Technology Employment Partnership.
In a chain of events that began in September 2010, Jeffrey took leave from work, citing “stress related injuries” as a result of “bullying, harassment, sexual harassment and racial harassment”.
Jeffrey took the full 12 months of sick leave entitled to her under her contract and a year later when her leave entitlements expired, she took a three-month period of unpaid sick leave.
Jeffrey was found fit to return to work in February 1, 2012, but refused to sign the company’s return to work programme (RTWP). The IT giant said Jeffrey could not return to work until the agreement was signed.
According to IBM, the company received a signed RTWP form in April 2012 and Jeffrey’s Salary Continuance Insurance Claim had also been also approved. However, in July, Jeffrey was certified as psychologically unfit for work, and in August, her general practitioner issued a letter stating that “she was fit for work but restricted to work for four hours per day”.
The general practitioner eventually told IBM’s occupational physician, Dr Simone Ryan, Jeffrey “was not fit for work and had not been fit for some time, notwithstanding the terms of the certificates issued in August 2012”.
In August 2012, Jeffrey received a text message from IBM advising that her employment had been terminated.
In the decision, Fair Work Commission deputy president McCarthy found that Jeffrey “not [having] the capacity to do the job for the foreseeable future” was not a valid reason for dismissal.
According to McCarthy, there were other grievances and it is likely “IBM had simply had enough and had arrived at a point where the resources and effort devoted to … [Jeffrey’s] grievances could not be justified”.
But McCarthy criticised Jeffrey for using the hearing as a forum for attacking Ryan and therefore, decided not to order her reinstatement or award compensation.
“The applicant throughout the proceedings raised allegations and assertions about Dr Ryan. I had made it clear near the beginning of proceedings that I would not deal with any allegations of professional conduct,” McCarthy said.
“I had to repeatedly remind the applicant throughout the proceedings that the application I was dealing with was related to her dismissal and not to other grievances she may have.”
“Despite this it appeared to me that another purpose the applicant had in these proceedings was to use it as a forum to criticise Dr Ryan. This was not only unfair to Dr Ryan but a deliberate and regular ignoring of directions and advice I gave the applicant throughout the proceedings.”
McCarthy said this meant Jeffrey “did not cooperate but rather frustrated efforts to have a reasonable programme for her return to work”.
Andrew Douglas, a partner at law firm M + K Lawyers, told SmartCompany there was insufficient evidence on IBM’s part to demonstrate whether the absences were really the cause of the dismissal, and therefore McCarthy couldn’t find in the company’s favour.
“He is essentially saying ‘at the end of the day I don’t know what the reason was – they say she was unfit for work’,” Douglas says.
“He found [Jeffrey] didn’t have the capacity to do the job when she was dismissed… and the nature of the allegations are so serious and unfair that she could not return to the job in the future.
“Due to the conduct and absences, there is no compensation.”
SmartCompany contacted IBM but did not receive a response prior to publication.
Andrew Sadauskas is a former journalist at SmartCompany and a former editor of TechCompany.
