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Employee who 'made unreasonable demands' loses unfair dismissal fight

Date

Noel Towell

A Canberra public servant who refused to go to work unless her boss was removed from his job has lost her fight for unfair dismissal compensation.

Ulla-Maija Dunkerley insisted on the removal of a divisional head at the Department of Industry as part of a list of ''unreasonable demands'' that would have to be met before she went back to her job.

The APS6 claimed she had been left traumatised from feedback provided by the now head of the department's corporate division, Michael Schwager, after Ms Dunkerley's failed bid for an EL1 job three years ago.

She refused to work while Mr Schwager headed the division.

Fair Work Australia found the department acted reasonably in its decision to sack Ms Dunkerley this year after she repeatedly refused to go back to work, despite medical advice that she was fit to do her job.

Ms Dunkerley's compensation battles with public service authorities go back to 2007 when she suffered an adjustment disorder after bullying in her Department of Education workplace, with Comcare admitting liability for the injury two years later.

In June 2010, she failed in an attempt to force the Department of Industry, where she had been transferred, to pay for university fees after arguing before the Administrative Appeals Tribunal that ''study alleviated her stress and anxiety by offering her the social inclusion that had been denied in her workplace''.

Later that month, the tribunal ruled that she was not entitled to compensation for distress caused by the feedback provided by Mr Schwager as part of the job application process.

Ms Dunkerley unsuccessfully appealed the tribunal's decision to the Federal Court and then to the Full Bench of the Federal Court.

She was eventually sacked from the Department of Industry in June this year after presenting her list of demands to her employers and refusing several times to return to work.

The former public servant appealed to Fair Work Australia for compensation, arguing she had been unfairly fired after being unable to return to a workplace which she claimed was hazardous to her health and that the department unreasonably refused to make changes that would to allow her to go back to work.

But Fair Work Australia's commissioner Barbara Deegan backed the department, finding that Ms Dunkerley's demands were ''unreasonable''.

''Her wilful refusal to abide by her employer's directives to attend the workplace or to offer any proper medical evidence for her failure to do so was a valid reason for the termination,'' Ms Deegan wrote in her decision.

''Every opportunity was given to the applicant to arrange a proper return to work but she refused to take part in the process.

''She made unreasonable demands of the department and put as many obstacles in the way of her return to work as she could muster.''

The commissioner noted in her decision that Ms Dunkerley, with her history of pursuing compensation claims against Comcare, was well aware of the need to supply medical evidence of an inability to do her job.

''The department acted properly in all its dealings with the applicant, who was clearly a difficult employee who necessitated the application of a disproportionate amount of departmental resources,'' Ms Deegan wrote.

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