The Fair Work Commission has ruled an employee was fairly dismissed by Essential Energy after her post-traumatic stress condition left her unable to perform her job.

The employee, of nearly 10 years, was a risk and business continuity manager, who had researched corruption at university. When this became known, ten other employees approached her with examples of alleged corruption within Essential Energy. She referred these examples to the chief risk officer and disclosure officers claiming she was following the employer’s code of conduct. She recommended independent internal and external reviews of Essential Energy, but these were not pursued.

The employee was stood down by Essential Energy claiming she breached their code of conduct by breaching confidentiality. She was issued a written warning and ordered to take a refresher training on the confidentiality requirements. The employer claimed she had committed confidentiality breaches, but the employee claimed it was punishment for whistleblowing.

Afterwards, the employee took personal leave, covered by medical certificates diagnosing traumatic stress and anxiety, and did not return to work. At this time she had been stood down for six months. She was dismissed nine months later.

Medical certificates attributed her unfitness for work to workplace bullying, harassment, and discrimination, stating she was not fit to handle direct contact with the employer. They did, however, declare she was capable of some work outside Essential Energy.

Essential Energy claims they made attempts to contact the employee several times, through the union she had nominated, to discuss alternative working options but did not receive a reply. They also claim that she failed to provide details of the workplace adjustments necessary for her to return to work.

Fair Work Commission found the employee’s medical conditions were legitimate however her claims of bullying and harassment, as well as claims of punishment for whistleblowing, were not substantiated. The medical evidence demonstrated the employee’s inability to return to work at Essential Energy which justified their decision to dismiss her. Therefore despite the employer not providing procedural fairness in some respects, this did not change the decision.

This case demonstrates how even in difficult circumstances procedural fairness can protect businesses from unfair dismissals. This can be difficult for small businesses without internal HR departments. That’s where ProcessWorx can help if you require assistance managing employees or providing procedural fairness contact us on (08) 9316 9896 or enquiries@processworx.com.au

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