Chris Papaioannou v CSL Limited (U2017/7855), Ryan, C. 6 November 2017


The applicant in this matter suffered a psychiatric illness, with the employee’s medico (according to the Commissioner) outranking the employer’s. Albeit, both agreed that the applicant would at some point in time (each differed in terms of a return-to-work date). The Commissioner was quite complimentary on the procedural aspects of the matter.


On my reading, the Commissioner took a very technical route of deciding that the EBA (upon which the applicant was employed) has a “salary continuance” clause, and according to the Commissioner, meant that whilst the applicant could be dismissed for misconduct, it was not fair for him to be dismissed due to his illness. The commissioner:


“Much of the case has been as to whether or not the employer should have preferred the medical evidence of the applicant’s treating psychiatrist over the evidence of an occupational physician. It is entirely defensible for an employer to rely upon the report of Dr Bloom in this matter. I am more than satisfied that the employer had a valid reason for the dismissal, based upon the report of Dr Bloom”.


The following dot points summarise the Commissioner’s views:


  • The question of capacity has been discussed in the case law and it goes to the capacity of a person to actually perform the duties which constitute the job. What those authorities do not discuss is whether the capacity includes the non-performance of the work, where the circumstances of the contract, the enterprise agreement, the award or the legislative regime or whatever other mechanism may be in place provides the capacity for a person not to perform the work whilst still performing their part of the employment relationship.
  • In the circumstances of this present matter, the inability of the applicant to attend work is matched by the ability of the applicant not to attend work and receive pay by virtue of the salary continuance provisions. It is a direct factor which goes to whether or not the dismissal, even if for a valid reasons, is harsh, unjust or unreasonable.
  • I come to the conclusion that the dismissal was harsh. It’s harsh because in circumstances where the employment could not be carried out by the applicant because of the current incapacity of the applicant, whilst that might give rise to a valid reason for the dismissal, the dismissal itself denied the applicant the benefit of the terms of an enterprise agreement which were intentionally designed to be generous and intentionally designed to specifically cover long periods of absence by the employee.


Having made a finding that the dismissal is harsh, the Commissioner dealt with the remedy:


  • Remedy is discretionary. I do not have to give a remedy. If I do give a remedy, I am required to consider whether or not reinstatement is inappropriate. The prime remedy is reinstatement. If I decide the remedy that reinstatement is appropriate, then I must order reinstatement. If I decide that reinstatement is inappropriate, then I must consider whether or not compensation is appropriate. If I decide that compensation is inappropriate, then no remedy at all is given. If I decide that compensation is appropriate, then I’m required to calculate an amount of compensation…”
  • In this matter, having regard to all of the circumstances of the case, I am of the strong view that a remedy should be granted to the Applicant in this matter. The prime remedy provided for in the Act is reinstatement. The Applicant can only receive a remedy if they’ve asked for one and they can only receive it if there’s been a finding that the applicant has been unfairly dismissed.
  • In the present matter, I consider that an order for reinstatement is appropriate. It is appropriate in the circumstances where there is no issue of conduct. This is not a conduct issue, which raises questions as to trust and confidence in the employee. [Emphasis added]. It is appropriate because reinstating the employee puts the employee and the employer in exactly the same position they were as at the date of dismissal. The employee is not performing work but the employee is accessing and has the ability to access the salary continuation provisions of the agreement.
  • A decision of the Commission in relation to a dismissal…has no bearing – and the parties need to understand this – has no bearing on any future conduct that the employer may take to dismiss the employee at any future date after the employee has been reinstated. That reflects absolutely the correct position of the employer that salary continuance does not make an employee immune from dismissal.




The dot points above are verbatim from the decision. Whilst this matter was found on a technicality (my words), the comments cited may be of some use if arguing against the reinstatement of an employee. Is it me, or is the language of the decision a tad on the casual side?


Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:


  • General HR and IR advisory service.
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