FWC finds failure to attend independent medical examination valid reason for dismissal

On 3 January 2022, Dr Amir Reza Zokaei Fard (Applicant) made an application for an unfair dismissal remedy. The Applicant was employed by the Royal Melbourne Institute of Technology (RMIT University) (Respondent) as an educator when his employment was terminated on 16 December 2021.

The Applicant received a termination letter dated 16 December 2021 advising him that his employment had been terminated effective immediately as a result of “disciplinary action for serious misconduct.”?The termination of the Applicant’s employment followed his failure to comply with directions to attend an Independent Medical Examination on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions).

The Applicant commenced employment with the Respondent on 17 July 2001.?Preceding the issuing of directions to the Applicant to attend Independent Medical Examinations on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions) was the Applicant’s assessment of students during the Semester 1 2020 teaching period as “not yet competent” across the five subjects he taught in what the Respondent describes as a “remarkable and unprecedented event.”

Following this event, a preliminary review report was prepared by Mr Adam Shepherd, Senior Manager Policy and Workplace Relations. The report referenced the comments of a Mr George Zouev, Program Coordinator, Mechanical, Aerospace & Civil Engineering, who stated that these results constituted a “significant anomaly”?and that the normal pass rate across these courses was usually in the 60-80% range. As a result of the review, 57 students later had their marks changed to “competent"?by a combination of input from three other teachers, Mr James Ong, Mr Sergei Eljaste and Mr Vettrivel Chinnadurai.

Shortly after the conclusion of the Semester 1 teaching and assessment period on 19 June 2020, the Applicant commenced a period of 20 weeks paid personal leave that lasted from 29 June 2020 to 17 November 2020. The Applicant submitted a series of medical certificates indicating he was unfit for his normal work during this absence.?On 27 August 2020, the Respondent made contact with the Applicant and was advised that “his current mental health issues are primarily to do with workplace issues dated back to semester 1.”?On 13 November 2020, the Applicant advised the Respondent that he was fit to return to work from the following week.

The Applicant re-commenced teaching on 8 February 2021 at the beginning of the Semester 1, 2021 teaching period.?Upon his return to the workplace in February 2021, the Applicant complained to his supervisor Dr Amita Iyer, Program Manager, Mechanical Aerospace and Civil, about his workload for the semester. Further, the Applicant requested information as to the students whose grades were changed in the preceding teaching period.

The workload complaint resulted in the re-allocation of certain subjects previously taught by the Applicant. These subjects were “re-allocated to other teachers for Semester 1, 2021.”?During the Respondent’s investigation into the workload complaint it became apparent that the Applicant was engaging in the “absurdly inefficient and wasteful”?practice of individually printing each student’s electronically submitted assignments, annotating and marking them by hand and then scanning the pages back into the online system one page at a time. The Respondent considered this a “performance issue.”

Dr Nick Patterson, Associate Director of Future Technologies in the College of Vocational Education, became aware of a number of student complaints about the Applicant over the period of February, March and April 2021.?On 19 April 2022, Dr Patterson also met personally with one of the students who he described as being “in tears” whilst making the complaint about the Applicant. The Respondent found these complaints “troubling”?and the volume of them “abnormal."?Following these complaints, the Respondent sent several emails?to the Applicant outlining the nature of the complaints, asking the Applicant to be clearer with instructions to students, asking the Applicant to provide “effective and accurate feedback”?and giving the Applicant a direction “not to continue the printing, handwriting and scanning process any longer.” The Applicant disputed the claims about this teaching methods and stated that the methods proposed by the Respondent would make his work “harder” and “may cause a delay in providing on-time feedback to students.”

In email correspondence from Dr Patterson to the Applicant dated 12 April 2022, the Applicant was asked to attend a meeting the purpose of which was to discuss “very serious concerns raised by students.”?The Applicant was invited to attend the meeting with a support person. The meeting took place on 29 April 2021 (the 29?April meeting) by Microsoft Teams and was attended by Dr Patterson, Mr Gus Lancaster (Principal Advisor, Employee Relations), Dr Iyer, the Applicant and his wife (who attended as a support person).

Dr Patterson’s account of this meeting which correlates to the contemporaneous notes?in evidence, of Mr Lancaster, taken in the meeting is as follows:

“During the meeting, Dr Zokaei Fard was shown a document entitled “Chronology of student complaints against Amir R. Zokaei‐Fard – First Semester 2021”. It set out 12 student complaints against Dr Zokaei Fard but redacted the names of the students. The student names were redacted to protect the students. After my meeting with the student who had been in tears, I recall that I was particularly mindful to ensure the students’ names weren’t shared to protect their privacy. I did not want them to experience any confrontation with Dr Zokaei Fard which may cause further distress, particularly when I was aware one student was seeking medical treatment due to their experience with Dr Zokaei Fard.

In addition to showing Dr Zokaei Fard the complaints chronology document, I also went through some of the complaints in detail. He had an opportunity to respond to the complaints. He refused to accept any responsibility and said words to the effect that the students and RMIT are all against him.

I recall that during that meeting Dr Zokaei Fard appeared to be very stressed and agitated. At one point, Dr Zokaei Fard stated “When I go to class I am going to war. The students are waiting to kill me. You kill me and they get their free pass?(emphasis added).?I found this comment to be extreme. I have not heard anything like it in my teaching career. It is very troubling to hear a teacher use this type of language to describe their relationship with their students.

At the end of the meeting, I said that we would prepare a Performance Improvement Plan for Dr Zokaei Fard.”?

The Applicant did not seriously contest the substance of the meeting, save that he states that the complaints document was only “briefly scrolled through,”?noting his evidence at hearing that he was shown the document for at least 10 minutes. The Applicant also disputed the number of complaints made against him.?

On 29 April 2021, Mr Lancaster sent correspondence to Ms Sandra Capper (Senior Manager Health, Safety and Wellbeing for the Respondent), expressing concerns as to the Applicant’s responses during the meeting and seeking Ms Capper’s views as to “HWS risk management.”?Following the meeting, Dr Patterson emailed the Applicant on 30 April 2021, confirming the Respondent’s concerns with the Applicant’s “responses” during the 29 April 2021 meeting and placing the Applicant on a formal performance improvement plan (the PIP), in accordance with the Respondent’s?“Workplace Behaviour Policy and the Managing Performance Procedure.”?Further, the Applicant was asked in that correspondence to contact Mr George Zouev, by no later than close of business on 3 May 2021, to discuss the process of assessment and marking.

Shortly after the meeting on 29 April 2021 the Applicant commenced a second period of paid personal leave that began on 3 May 2021 and continued until the termination of his employment on 16 December 2021.?The Applicant submitted a series of medical certificates in relation to the second period of leave from 2 May 2021 to 23 December 2021, of a generalised nature stating the Applicant was unfit for work for the relevant period.

On 8 May 2021, the Applicant’s daughter emailed a medical certificate on behalf of her father and stated that:

“Dr Zokaei Fard’s medical practitioner has advised him not to have any direct contact with RMIT during the period of this certificate. Accordingly as his daughter, I am sending this certificate to you on his behalf.”

On 10 May 2021, Mr Lancaster called the Applicant’s daughter to ascertain who the Applicant’s contact person with the Respondent would be and confirming the Respondent’s normal process of requesting medical evidence from the treating practitioner of an employee absent from work as a result of illness or injury for more than 2 weeks.?The Respondent submits this process was undertaken to better understand the employee’s fitness for work and any adjustments on how best to plan for their return to work.

The Applicant’s daughter responded to the requests above via email on 11 May 2021:

“As per your request, I asked my father if he wanted me to act as his representative to communicate with you. He has not given me his consent to do so.

You mentioned that the medical certificate did not note he was advised not to have direct contact with RMIT. Accordingly at his next appointment he will seek written confirmation of this. If this is available, I will send it to you on his behalf.”?

On 14 May 2021, Ms Capper emailed the Applicant seeking his permission to contact his treating practitioner to “advise of the University’s process and to seek their medical opinion in the development of a workplan” and attaching an?Authority to Obtain Medical Information?form. The Applicant sent the Respondent a medical certificate dated 20 May 2021 from his General Practitioner, Dr Kevin Rose that stated “due to his present medical condition, and whilst he is taking certified sick leave, [the Applicant] should have no contact with RMIT University.”?

On 21 May 2021, Mr Lancaster was informed by Ms Capper that the Applicant had failed to respond to the requests made in the correspondence of 14 May 2021 or return a completed authority to obtain medical information form.?Following the lack of response from the Applicant, Ms Emma Blee, Director of Health, Safety & Wellbeing “decided to direct Dr Zokaei Fard to attend an IME”?on or about 3 June 2021. The reason given for making direction was:

“I formed the view that Dr Zokaei Fard’s “war” comment, set out above, warranted an IME with a psychiatrist due to my concerns for the safety of Dr Zokaei Fard himself and RMIT staff and students. RMIT has a duty of care under occupational health and safety legislation to understand the risk associated with such comments. Additionally, I formed the view that Dr Zokaei Fard’s extended absence from work, inadequate information in his medical certificates and failure to provide RMIT with consent to contact his treating practitioner for further information, presented multiple circumstances in which it is appropriate to request an IME in accordance with the IME Guidance document. Again, due to the “war” comment and other information set out above, it appeared that the most likely cause of Dr Zokaei Fard’s illness was mental health related and hence a psychiatrist was the appropriate specialist.”

The direction to attend the first IME was given in a letter dated 29 June 2021 and was sent to the Applicant via email and post on 1 July 2021. The direction contained appointment details for a medical examination to take place on 19 July 2021.?The date of the examination was amended due to COVID-19 restrictions and this was relayed to the Applicant in a letter of 19 July 2021.?This letter was couriered to the house of the Applicant on 20 July 2021.?The new appointment was scheduled to take place on 28 July 2021.

The Respondent was informed on 28 July 2021 that the Applicant did not attend the IME appointment scheduled for that day. I note that no stay-at-home order pursuant to COVID-19 restrictions applied on this date. Prior to the 28 July 2021 appointment, the Applicant sent a letter to the Respondent dated 18 July 2021 in which he states that he did “not see any reason” to attend an IME and offered to ask his GP to provide the Respondent information that “does not breach my privacy entitlements.”?The Applicant also made further claims that the performance management process outlined above was defective and that representatives of the Respondent had tried to “humiliate [him], discredit and damage [his] reputation.”?The Applicant sent a further letter to Ms Blee dated 1 August 2021 in which the Applicant, amongst other matters, expressed his “disappointment” in how the matter had been conducted thus far and making a series of complaints against Dr Amita Iyer, Dr Nick Patterson and Mr Gus Lancaster.?The Applicant’s complaints were referred to Mr Shepherd for investigation.

On 25 August 2021, the Applicant was again directed by the Respondent to attend an IME. The direction was sent by email and couriered to the Applicant’s home.?The new IME appointment was scheduled for 13 September 2021 (the 2nd?IME request). The Respondent informed the Applicant in this correspondence that the Respondent had incurred costs of $1,089 including GST due to the Applicant’s failure to attend the IME and accordingly that the Applicant’s conduct in failing to attend the appointment had been referred to the Respondent’s workplace relations team for investigation.?The Applicant was again reminded that failure to comply with the Respondent’s lawful and reasonable direction may lead to the termination of his employment.

The Respondent was informed on 13 September 2021 that the Applicant did not attend the IME appointment scheduled for that day.?The Applicant sent further correspondence to the Respondent dated 27 August 2021 in which he stated that he had not been provided with a “legal basis"?to attend an IME, confirmed again his intention not to attend an IME and asking the Respondent not to book any additional IMEs without his “approval.”

The Respondent replied to this correspondence in a letter dated 10 September 2021.?In this correspondence the Respondent re-stated the direction to attend the IME scheduled for 13 September 2021 and reminded the Applicant of the potential consequences for failing to attend the IME. As to the Applicant’s offer to provide medical information from his own doctor, the Respondent asked the Applicant to provide any additional medical information to Dr Redmond when he attended the second IME.

The Applicant responded to the Respondent’s letter of 10 September 2021 by repeating claims about a lack of legal basis to direct him to attend the IME, raising further privacy concerns and again asking the Respondent not to book IMEs without his approval. The Applicant also stated “please be aware that this letter is the last communication I have with you”?and indicated that he did not expect a response to the letter and requested not to be contacted further by Ms Blee.

The Preliminary Review Report prepared by Mr Shepherd concerning the Applicant’s complaints of 1 August 2021 was released on 29 September 2021 and was sent to the Applicant’s wife on 29 September 2021 by Mr Shepherd. On 11 October 2021, the Applicant was directed a third time by the Respondent to attend an IME (the 3rd?IME) on 13 October 2021. The direction was contained in correspondence delivered by courier to the Applicant’s home.?The Applicant did not attend the 3rd?IME appointment scheduled for 13 October 2021.

On 22 October 2022, Mr Lancaster was appointed investigator into the Applicant’s failings to attend the IMEs.?On 22 October 2022, the Respondent sent a letter to the Applicant, by courier, notifying him of the initiation of a workplace investigation (the October workplace investigation) as to his failure to comply with the Respondent’s lawful and reasonable directions to attend three IMEs and the potential consequences of his refusal to follow the Respondent’s lawful and reasonable directions, including termination of his employment. Due to the Victorian Government’s COVID-19 restrictions at the time, the Applicant was asked to attend a Microsoft Teams meeting at 10:00AM on 27 October 2021.

Following this correspondence, the Respondent received a letter from the Applicant’s wife, Ms Abedkhah, dated 26 October 2021. The letter repeated allegations raised in previous correspondence as well as the following passage:

“I would like to remind you that Amir is in a certified sick leave and his doctor requested him to avoid having a direct contact with the RMIT until he returns to?work. So, as l informed Blee last week (see below this email) Amir does not read any letter from the RMIT unless I have read it before and I would pass the information to him when I find it is appropriate?(emphasis added).”

The Respondent was unable to reach the Applicant on 27 October 2021 despite multiple attempts to contact him via phone and Microsoft Teams.?On 28 October 2021, the Respondent couriered?a letter to the Applicant concerning his non-attendance at the meeting on 27 October 2021 and giving the Applicant until 3 November 2021 to provide a written response to the allegations that were the subject of the October 2021 workplace investigation. In his report of 6 December 2021, Mr Lancaster concluded that the Applicant had failed to follow the Respondent’s lawful and reasonable directions to attend IMEs on 28 July, 13 September and 13 October 2021 and that this conduct constituted serious misconduct. The Respondent emailed and couriered a letter to the Applicant on 9 December 2021 outlining the findings of the investigation and giving the Applicant until 5:00pm Tuesday, 14 December 2021 to respond to the Respondent concerning the findings.

Dr Patterson of the Respondent received a response from the Applicant on 14 December 2021. The nine-page letter raises issues dealt with previously regarding the Semester 1, 2020 failing of students, the previous mentioned allegations of retribution, questioning of the legal basis for directing the IMEs amongst other matters. The Applicant concludes that “I am willing to attend the IME when I am ready to return to work after providing RMIT with my fitness certificate.”

On 16 December 2021, a termination letter was couriered to the Applicant.?An excerpt of the termination letter is set out below:

“Dear Dr Zokaei Fard

Disciplinary Action for Serious Misconduct – Dismissal

I refer to the notification of workplace investigation letter dated 22 October 2021 and the investigation findings provided to you by letter dated 9 December 2021, which was couriered to your home address.

You were provided the opportunity to put forward any information you wished me to take into account in mitigation of the proposed disciplinary outcome. I requested you provided that information by 5pm on Tuesday 14 December 2021. I have received your written response and have considered the information you have put forward. I am writing to notify you of my final decision in relation to the proposed disciplinary action set out in my letter to you on 9 December 2021.

I have considered all the information available to me and have made the decision to terminate your employment effective immediately, with payment provided to you in lieu of your notice period of 5 weeks.

...

Nick Patterson”

It is a well-established legal principle that an employer may give a lawful and reasonable direction, and an employee is obliged to obey the employer’s lawful and reasonable direction. For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable.

The Commission found in light of the above facts that the IME directions were both lawful and reasonable and in the circumstances, the Applicant’s failure to attend is a sound and defensible reason for the termination of the Applicant’s employment. The Commission therefore found there was a valid reason for termination and was satisfied that the Applicant was afforded procedural fairness during the disciplinary process. Having regard to the totality of the matter, the Commission was satisfied in all the circumstances that the Applicant’s dismissal was not disproportionate to the gravity of his conduct, nor was it harsh in any other sense.

The Commission was satisfied that the direction of the Respondent for the Applicant to attend an IME was a lawful and reasonable direction and that the Applicant failed to comply with a lawful and reasonable directive of the Respondent and that there was a valid reason for termination. Having considered the material the Commission ultimately found that the dismissal of the Applicant was not harsh, unjust and unreasonable.