1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Ms Judy Chea v Kildare Education Ministries Limited (U2025/9660) COMMISSIONER ALLISON MELBOURNE, 27 APRIL 2026 Application for an unfair dismissal remedy [1] This decision concerns an application made by Ms Judy Chea under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. Ms Chea was employed as a teacher at Killester College Springvale (the College) by Kildare Education Ministries Limited (KEM or the Respondent). In May 2024 Ms Chea had a fall at work. Subsequently, Ms Chea was unable to perform her normal duties without considerable modification. Ms Chea took the whole of Term 1 2025 off to rest and recover. However, at the end of Term 1, Ms Chea was still unable to return to full normal duties. The College directed Ms Chea to attend an independent medical examination. Ms Chea’s employment was terminated on 21 May 2025 for allegedly failing to follow lawful and reasonable directions to attend two independent medical examinations. This decision considers whether Ms Chea’s termination was harsh, unjust or unreasonable. [2] I held a determinative conference in this matter on 13 November 2025. At the determinative conference Ms Chea represented herself and provided witness evidence in support of her position. Ms Sally Buick, who was Principal of the College at the time of the dismissal, and Mr Peter Houlahan, Executive Officer of KEM, provided witness evidence on behalf of the Respondent. Ms Chea submitted that Ms Buick and Mr Houlahan were not credible witnesses, arguing that there was a range of inconsistencies in their written and oral evidence. I found all witnesses to be credible and helpful to the Commission. Where inconsistencies occurred, they tended to be in relation to matters that had happened a considerable time ago and/or where Ms Buick was not directly involved but, as Principal, was reliant on information from others. Where there was an inconsistency, I have tended to accept Ms Chea’s evidence on the matter. However, none of the inconsistencies in my view are particularly material to this decision, nor do they arise from Ms Buick or Mr Houlahan intentionally trying to mislead the Commission. [2026] FWC 886 DECISION [2026] FWC 886 2 Background [3] The following paragraphs outline the background to the matter. I note that significant portions of the background are contested between the parties. Where findings on contested points are required, they will be made later in the decision. [4] Ms Chea is a teacher with expertise in mathematics and physics. Ms Chea commenced work as a teacher at Killester College on 30 January 2017. [5] On 24 May 2024, Ms Chea sustained an injury following a fall on the stairs at work. [6] Following Ms Chea reporting the injury, a representative from the school escorted Ms Chea to the school’s preferred medical clinic. This was despite Ms Chea requesting that a family member pick her up and take her to her own general practitioner. [7] Ms Chea did not initially make a WorkCover claim in relation to the injury. [8] Following the injury Ms Chea was away for the rest of Term 2, which finished on 28 June 2024. [9] During Ms Chea’s time away, Ms Buick, the then Principal of the College, unsuccessfully attempted to contact Ms Chea on Ms Chea’s landline and on the mobile phone held by the school.1 Ms Buick expressed concern about not being able to contact Ms Chea in an email to her dated 12 June 2024 entitled “URGENT.”2 [10] Ms Chea responded to this email with some instructions for her classes the following day.3 [11] On 9 July 2024, Ms Chea provided the College with a medical certificate from her treating doctor, Dr Tang, dated 6 July 2024. The certificate stated: “Miss Chea can resume work from 15/7/2024. She is to avoid prolonged standing or walking. She is to avoid using any stairs. This can be reviewed after 2 weeks.”4 [12] Many of Ms Chea’s classes in Term 3 were located on Level 1 of the school building. Following prompting from Ms Chea, the school provided her with a key to the lift on 16 July 2024, the day classes started. Ms Chea’s yard duties were also removed. [13] Ms Chea believed that the commute between the classes she had been allocated was exacerbating her injury. [14] On 25 July 2024, Ms Chea emailed Ms Faye Jamieson, who was acting Co-Principal while Ms Buick was on leave. The email states: “Thank you for the lift keys however I’m still walking too much due to the spread out locations of my classes. Could you please help arrange for me to have one classroom on ground level where all my students come to me instead of me walking around to each class.” 5 [2026] FWC 886 3 [15] On 26 July 2024, Ms Chea emailed Ms Jamieson a medical certificate which stated: “Due her knee injuries post fall, extra walking has increased her knee pain. If possible, please rearrange her classes in order to reduce the total distance she is required to walk.”6 [16] On 29 July 2024, Ms Chea met with Ms Jamieson and Ms Cannon (the other acting Co- Principal) to discuss Ms Chea’s injury and working arrangements. As part of that meeting Ms Chea inquired whether the school would pay for her medical treatment including medication and physiotherapy. Both Ms Jamieson and Ms Cannon said words to the effect that the school would not pay for those things because Ms Chea had not made a WorkCover claim.7 [17] Following the meeting with Ms Chea, the College implemented a number of further adjustments. These were set out in an email dated 29 July 2024 from Ms Jamieson to Ms Chea and included8: • Removing the Year 12 Mathematical Methods class; • Relocating Year 7, 8 and 9 mathematics classes to the same room (Room DO06) starting from August; • Relocating any Year 7 and 8 science classes that occur in a normal classroom to Room DO06; • For science experiments in a laboratory, a lab technician would be allocated to the class to assist with supervision so Ms Chea could stay seated at the front of class; and • Ms Chea would continue to be excused from yard duties. [18] In the email Ms Jameson notes that because of the removal of Mathematical Methods, Ms Chea was nine periods underloaded. As a consequence, to keep a full-time workload Ms Chea would be used as a replacement teacher when other teachers were absent or otherwise engaged. [19] Ms Chea continued to have concerns regarding work arrangements. In particular, Ms Chea did not believe relocating her classes to Room DO06 was an appropriate accommodation because: • DO06 was on a different floor to the staff room. Given Ms Chea’s injury impacted her ability to move quickly, it took too long for Ms Chea to commute to the staff room during breaks. This made her feel isolated. • To get to the toilet from DO06 Ms Chea needed to walk down passages that had an incline, putting additional strain on her knee. [20] Ms Chea was also concerned about her ability to supervise students performing science experiments. [21] On 14 August 2024, Ms Chea asked Ms Jamieson to move her to a ground floor room. This request was refused by Ms Jamieson on the grounds that only DO06 was available. There is a dispute between the parties regarding whether there was a room available on the ground floor which I discuss further below at [93-95]. [2026] FWC 886 4 [22] On 28 August 2024, Ms Chea and Ms Buick met to discuss Ms Chea’s injury and work arrangements, including Ms Chea’s ongoing request to move to another classroom. Ms Buick sent Ms Chea an email following the meeting summarising the discussion. The email is lengthy and covers a range of topics. Importantly, it includes the following9: a. Ms Buick notes the last certificate the College has from Ms Chea is dated 26 July 2024. b. Ms Buick requests an updated medical certificate from Ms Chea’s treating doctor including more information including: a. A diagnosis of Ms Chea’s injury; b. An update on modifications required; c. Confirmation that the current modifications were still required; and d. A timeline for review of the modifications. c. Ms Buick notes that at the meeting she and Ms Chea discussed the fact that Ms Chea is 9 periods underloaded. At the meeting Ms Buick proposed that Ms Chea use her sick leave to pay for the difference, reduce her fulltime hours, or be allocated covers. Ms Chea requested that she be allocated covers, but that, if possible, students be sent to DO06. Ms Buick flagged she did not think this was workable, but would consider it. d. Ms Buick notes that she explained that an employee who is injured at work would normally be on WorkCover, but as Ms Chea had chosen not to put in a claim, the College was unclear about the link between the fall on the stairs, the subsequent injury, and what the College was required to do in relation to accommodating Ms Chea. In relation to WorkCover Ms Buick states: “Should you wish to reconsider placing a WorkCover claim, I will ask Trish to send you through the paperwork (I believe she has already emailed you regarding this but I am happy to ask her to do so again). … You referenced that you thought it was best for the school that you not put in a Work Cover claim; this is most assuredly not the case and we would never seek to influence staff regarding whether or not they should lodge a WorkCover claim.” e. Ms Buick stated that the school will “do all we can to make reasonable adjustments upon receipt of the recommendations of your doctor.” f. Ms Buick notes Ms Chea asked whether science could be removed from her load so she did not have to supervise experiments. Ms Buick states that this would lead to Ms Chea’s workload being further reduced and would require covers, reduction of fulltime hours or use of sick leave. g. Ms Buick notes she has had difficulty contacting Ms Chea on her landline and mobile. [23] On 31 August 2024, Ms Chea provided a further doctor’s certificate dated 31 August 2024 which provided as follows: [2026] FWC 886 5 “Due [to] her knee injuries post fall, extra walking has increased her knee pain. If possible, please rearrange her classes in order to reduce the total distance she is required to walk. She needs to avoid stairs and also limit use of sloped ramps. She should avoid prolonged standing or walking. These modifications can be reviewed on a monthly basis. In terms of when she can return to full duties, with her progress thus far, it will likely be at least 6 months before she can return to full duties, this is subject to change depending on her progress”.10 [24] On 6 September 2024 Ms Buick sent a further email to Ms Chea stating:11 “… I am going to send [a letter] to your GP asking for some additional information. As you and I have discussed there is still no actual diagnosis of any injury and with this information I am concerned that we are acting a little blind and may not be ensuring we meet workplace obligations. It is really important that we get the clearest picture possible of what injury you sustained and the most appropriate medical advice in regard to how best help you heal. Additionally, I am needing to ascertain some clarity regarding the 6 month recovery period your doctor indicated in the last medical certificate you provided.” (Emphasis added). [25] Ms Chea’s doctor was away on leave until 28 September 2024, so further discussion around Ms Chea’s injury and work adjustments was postponed. [26] On 8 October 2024, there was an incident concerning the whereabouts of a particular student who was meant to be in Ms Chea’s classroom. [27] Ms Chea’s evidence is that it was school photo day, and it was very disruptive with different students leaving for photos, and other students going to the toilet. The student in question had gone to photographs, but at first when the Student Development Leader asked Ms Chea where the student was Ms Chea stated she believed the student had gone to the toilet. On the same day the Student Development Leader allegedly saw students doing their make up at the back of Ms Chea’s classroom. [28] On 10 October 2024, Ms Chea again raised concerns regarding her ability to supervise students in the laboratory performing science experience and was told that other teachers were not available to supervise.12 [29] On 13 October 2024, Ms Buick sent an email to Ms Chea raising concerns about Ms Chea’s ability to properly supervise her classes. In the email Ms Buick states she will arrange for an assistant teacher for junior maths classes, and steps would be taken to try to accommodate extra supervision in science classes. Ms Buick’s email ends by stating: “This can only be a short term solution to the issue we have as we can not sustain the cost of two teachers being with a single class.”13 [30] On 14 October 2024, Ms Buick sent Ms Chea an email attaching a letter entitled “Clause 13 letter first instance”. The letter required Ms Chea to attend a meeting on Friday 18 October [2026] FWC 886 6 2024, and raised a number of conduct and performance concerns “discussed with you previously in a meeting … on 28 August 2024”. The letter included the following conduct and performance concerns:14 • Failing to provide documentation that outlines a diagnosis of any injury that requires reasonable adjustments in the workplace; • Inability to actively supervise students in science experiment; • Inability to move around the general classroom and ensure adequate assistance for students and/or active supervision of their work; • Inability of other staff at the college to access you to discuss curriculum and/or assessment requirements; • Inability to enact your fundamental duty of care to the students under your supervision; • Inability to adequately ensure students completed the necessary practical components of the science curriculum; • Inability to provide appropriate support for student learning in classroom settings; • Inability to follow college expectations regarding online learning; • Inability of staff at the College to find you throughout the day to engage in professional discussions about curriculum and other school related matters; • Incomplete record keeping on SEQTA. [31] The letter states that at the meeting on 18 October 2024, Ms Chea is to provide a response to these concerns. [32] I note that Ms Chea has raised a number of inaccuracies in this letter, including that the letter refers to the incident described above at [26-27] occurring on 9 October 2024 instead of 8 October 2024. [33] On 18 October 2024, Ms Chea attended the disciplinary meeting with her father as a support person. Ms Buick, Ms Jamieson and Mr Katon Cloherty, Employee Relations Advisor from Melbourne Archdiocese Catholic Schools (MACS), attended the meeting. In this meeting the Clause 13 letter was discussed. Ms Chea pointed out some inaccuracies in the letter including the 9 October 2024 date. Amongst other matters, Ms Buick raised WorkCover and stated she needed more information regarding Ms Chea’s injury. Ms Buick stated she would send Ms Chea’s doctor another letter. [34] On 23 October 2024, Ms Buick sent Ms Chea an email directing Ms Chea to provide a letter to her doctor. Ms Buick stated, the College required the medical information by 6 November 2024. The email states: “Should your doctor be unable to provide me with the required information…. Within the two week deadline, we will engage an independent medical examiner.” [35] The letter to Ms Chea’s Doctor amongst other things stated: “as a Science teacher Ms Chea is required to actively supervise classes conducting practical components of the curriculum and in doing so needs to stand for 110 minutes and move around the classroom.” 15 [2026] FWC 886 7 [36] The College provided Dr Tang with a medical report to fill in. [37] Dr Tang completed the medical report provided by the College and returned it to Ms Buick by 6 November 2024. In relation to the question of whether Ms Chea was able to undertake the inherent duties of her role, Dr Tang replied: “Not fully. She needs to spend less time standing, walking. She needs to have less use of stairs and ramps, so may need to adjust schedule of classes to minimise stairs, ramps, walking distance.”16 [38] In relation to adjustments, Dr Tang stated: “Adjust type of class so there is less need for standing or walking. Adjust schedule of classes to minimise walking distance between classes, less use of stairs and ramps.”17 [39] In relation to the question of whether the employee’s physical condition would improve, Dr Tang states: “Likely to improve over time. Improve with rest, with reduced use of knees.” [40] Ms Buick gave evidence that she was not satisfied with the details in the report, particularly because it did not include a prognosis, and used what she considered vague language.18 [41] Ms Chea’s assigned teaching load for 2025 included taking four science classes and a number of classes located on Level 1. There was an expectation that science teachers would complete three to four experiments per class per term, so this meant Ms Chea would be required to perform 48 – 68 experiments per year.19 [42] Ms Chea was concerned she would not be able to perform the required tasks, including attending classrooms on Level 1 and conducting the required science experiments. As a result, she applied to take her long service leave for Term 1, 2025. Ms Buick conditionally approved the long service leave. Ms Buick sent Ms Chea an email dated 11 November 2024 which states: “Firstly, just so there is absolutely no confusion whatsoever; prior to your return to work I will require, at a minimum, a certificate of capacity completed by your treating doctor to say you are able to return to your full duties. If you are unable to provide this certificate I will need to be informed and we will need to meet in the final week of term so we can discuss what needs to happen for forward planning. Unfortunately an update from you regarding your condition will not be sufficient. I understand that may be frustrating for you however the medical documentation ensures that the doctor is telling us he is satisfied you are healed and can return to work as per normal, or he is saying you have not healed adequately and we need to discuss the plan from there. I have a duty of care to employees and without informed medical advice I can't let you return to work; this would be in breach of our obligations as an employer, particularly given how long ago the incident took place, [2026] FWC 886 8 the amount of time you were unable to return to work and the fact that you are still requiring the use of a walking aid and require many adjustments. Secondly, in regard to the documentation received from your doctor, he states that your "physical condition is exacerbated by...repetitive use of stairs and ramps, and prolonged standing" and that you "need less time standing, walking". Given you have been provided with a lft (sic) key to avoid stair use, your scheduled classes, where possible, are in the same room/s and we have placed an additional staff member in so many of your classes, I am unsure as to how else we can provide you with "less time standing, walking" or have "less use of stairs and ramps". Your doctor recommends the following in regard to recommended reasonable adjustments: "adjust type of class so there is less need for walking or standing. Adjust schedule of classes to minimise walking distance between classes, less use of stairs and ramps". I think we have already made all of these adjustments where reasonable to do so, please advise if there are other adjustments you see as "reasonable". I am happy to consider additional adjustments provided they are reasonable and do not impact the learning for young people or the capacity for other staff to do their appropriate teaching. Please note that with the timetable changeover the Headstart coming shortly, the provision of an additional staff member in class is very unlikely to be able to be accommodated. In conclusion, please reply acknowledging the requirement I am making of a certificate of capacity completed by your treating medical doctor prior to your return to work. I am also happy to consider additional requests for "reasonable adjustments"20 (Emphasis added) [43] Ms Chea took long service leave for Term 1, 2025. [44] On 12 March 2025, Ms Chea sent Ms Buick a medical certificate dated 6 March 2025. The medical certificate stated:21 “Miss Chea’s knees have improved with the relative rest during her long service leave. She is experiencing less pain.” [45] On 2 April 2025, Ms Buick sent an email reminding Ms Chea that she required a certificate of capacity from her doctor, including capacity to return to work and any required modifications. The email included the same report as previously sent to Dr Tang and stated:22 “This will need to indicate your capacity to return to work and what, if any, modifications need to be made. If there are required modifications, I will also require a diagnosis of the medical condition you are experiencing.” [46] On 4 April 2025, Ms Chea sent Ms Buick a completed report from Dr Tang. While the report stated Ms Chea was improving, Dr Tang confirmed Ms Chea was not in a position to return to full duties and continued to require adjustments to types of class and locations of class to reduce standing time, as well as reduced use of stairs, ramps and walking distance.23 [2026] FWC 886 9 [47] On 7 April 2025, Ms Buick sent Ms Chea an email directing her to attend an independent medical examination (IME).24 The email states: “Given the fact that you sustained your injury in April of 2024, you have had significant absence since your injury, that your doctor is unable to provide you with a certificate of capacity stating you are able to return to full duties, and that you are still requiring substantive adjustments that inhibit you from being able to undertake the inherent requirements of your role, I have attached a letter directing you to attend an independent medical examination.” [48] The IME was scheduled for 23 April 2025 at a provider called ‘mlcoa’. Ms Buick also provided Ms Chea with a medical consent form to sign. [49] On 9 April 2025, Ms Chea sent Ms Buick an email requesting to take unpaid leave for the rest of 2025. [50] On 10 April 2025, Ms Buick rejected the leave application and sent Ms Chea an email reconfirming her direction to attend the IME. In the email Ms Buick states that following receipt of the IME, “we will be in a much more informed position as to what the prognosis is for your recovery, and when we would be able to anticipate your capacity to return to the inherent demands of your role.”25 [51] Ms Buick stated that Ms Chea could access personal leave/unpaid leave while they awaited the IME report. [52] On 11 April 2025, Ms Chea emailed Ms Buick, stating she intended to make a formal complaint, and that she would not sign to approve an IME.26 [53] On 11 April 2025, Ms Buick emailed Ms Chea stating:27 “Please note that as your employer the College is entitled to direct you to attend an independent medical examination and any such direction is a lawful and reasonable direction. Failure to comply may be misconduct and may lead to disciplinary action, including termination of your employment.” (Emphasis added) [54] On 14 April 2025, Ms Chea lodged a complaint with KEM.28 The complaint encompasses a range of concerns Ms Chea had regarding her treatment by College since her injury in May 2024. Ms Chea also raises concerns with the direction to attend an IME by which she says she felt “blindsided”. Ms Chea raises negative reviews she has seen about the IME provided on the internet. She also asks for her request to be on unpaid leave for the remainder of 2025 to be reconsidered. [55] Following the complaint Ms Buick cancelled the IME on 23 April 2025.29 [56] Ms Chea remained on paid leave awaiting the outcome of the complaint.30 [2026] FWC 886 10 [57] On 28 April 2025, Ms Chea submitted a WorkCover claim. [58] On 29 April 2025 Mr Houlahan, Executive Officer, of KEM, sent Ms Chea his report into her complaint.31 The report addressed a number of issues including finding that Ms Chea had not been reimbursed by the College an amount of $24.00 for medication. Importantly, in relation to the IME the report stated: “Employers are entitled to issue reasonable directives to employees. If employees refuse to follow reasonable directives from their employer, it may be grounds for termination of employment. It was reasonable that Ms Buick clearly informed Ms Chea she was required to attend the appointment and of the potential consequences for refusing to attend. Now 11 months after the fall, it is reasonable for the school to seek objective medical advice about whether Ms Chea’s knees prevent her from resuming normal duties.” (Emphasis added) [59] The report also held that mlcoa was a suitable provider noting it had been independently assessed as being compliant with the international standard for Quality Management Systems, and that it was also the provider used by the MACS. [60] Finally, the report concluded the College may proceed with arranging an independent medical examination. [61] On 29 April 2025, Ms Buick sent an email to Ms Chea requiring her to attend an IME on 6 May 2025.32 The email states that whilst they are awaiting the IME report, Ms Chea can choose whether to return to work and be allocated covers, or go on leave without pay. The email also confirms that Ms Chea’s WorkCover form has been received, and that a College officer will be in contact regarding some missing details. [62] On 1 May 2025, Ms Chea sent Ms Buick and Mr Houlahan an email stating she was escalating the complaint.33 [63] On 2 May 2025, Ms Buick sent an email to Ms Chea stating: “The escalation of your complaint, and the submission of your Work Cover Claim, do not preclude you from being required to follow any directions I make as your employer.” [64] Ms Buick’s emailed notes that Ms Chea has failed to return the signed consent form for the IME by midday 2 May 2025, and extended the time for Ms Chea to submit the consent form to 8.00am on 5 May 2025. [65] Later the same day Ms Buick sent a further email to Ms Chea which states: [2026] FWC 886 11 “Further to my earlier email Judy, I wish to remind you that non- attendance at the IME scheduled to take place at mlcoa on Tuesday 6 May, 2025, (as per my email to you on 29 April, 2025) may be misconduct due to your failure to comply with a reasonable and lawful direction and may result in disciplinary action.”34 (Emphasis added) [66] On 4 May 2025, Ms Chea escalated her complaint to Ms Margaret Blythman, the Chair of KEM. Ms Chea sent an email to Ms Buick stating that until her complaint was resolved she would not be consenting to the IME. [67] On 5 May 2025, Ms Margaret Blythman, the Chair of KEM, dismissed Ms Chea’s complaint confirming that the initial complaint had been handled appropriately by Mr Houlahan’s report.35 [68] At 8.47am on 5 May 2025, Ms Buick sent Ms Chea a further email confirming that Ms Chea must attend the IME, and refusal to do so may result in disciplinary action. In the email Ms Buick provided Ms Chea with another extension to submit consent to the IME by midday.36 [69] After receiving Ms Buick’s email, on the morning of 5 May 2025, Ms Chea contacted WorkSafe Advisory line and spoke to a staff member. The staff member informed Ms Chea that under Workers Compensation legislation there is only a requirement to attend IME appointments arranged by the insurance agency.37 [70] At 11.59am on 5 May 2025, Ms Chea sent an email to Ms Buick stating, “I have been advised that I have the right to not attend your chosen Independent Medical Examination.”38 [71] Ms Chea further tried to escalate her complaint to MACS, but ultimately MACS told her the matter was KEM’s responsibility. [72] On 9 May 2025 Ms Buick sent Ms Chea a show cause letter and required Ms Chea to attend a show cause meeting. The letter states the College has “serious concerns in relation to your repeated failure to comply with reasonable and lawful directions” and later states “Your failure to attend either of the appointment[s] indicates that you do not intend to comply with this lawful and reasonable direction”.39 [73] On 15 May 2025, Ms Chea attended the show cause meeting with her father as her support person. Ms Buick and Mr Houlahan attended on behalf of the Respondent. Mr Houlahan ‘chaired’ the meeting, and the meeting went for 1.5 – 2 hours.40 The parties are in dispute regarding whether Ms Chea was given a proper opportunity to respond. I discuss this further below at [132-139]. [74] On 19 May 2025 Ms Chea attended a WorkCover IME. [75] On 21 May 2025 Ms Chea received a termination letter from Ms Buick. The grounds for termination are: “… your failure to comply with lawful and reasonable directions, specifically: [2026] FWC 886 12 - A direction to attend an independent medical examination (IME) scheduled for 23 April 2025 - A direction to attend an IME scheduled for 6 May 2025.” [76] In the letter Ms Buick states that she considers Ms Chea’s actions “serious misconduct”, and this opinion is supported by Mr Houlahan and Ms Blythman. The letter informs Ms Chea that she will be terminated effective immediately and will be paid out four weeks in lieu of notice. [77] At the hearing Ms Chea confirmed that she continued to suffer from her injury and at the date of the hearing was not in a position to return to normal duties. Was the dismissal harsh, unjust or unreasonable? [78] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [79] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.41 I set out my consideration of each below. 1. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? [2026] FWC 886 13 [80] The majority of oral and written submissions in this matter went to the consideration of whether there was a valid reason for dismissal. 1.1 Reason for Dismissal [81] The reason given by the College for Ms Chea’s dismissal in the termination letter is “… your failure to comply with lawful and reasonable directions, specifically: - A direction to attend an independent medical examination (IME) scheduled for 23 April 2025 - A direction to attend an IME scheduled for 6 May 2025.” [82] Ms Chea submits the reason for dismissal is unclear, because she argues that there is competing evidence regarding whether she was terminated for one or two refusals to attend an IME. She further argues that it is unfair to include the direction to attend the April 2025 IME because Ms Buick ultimately cancelled the IME: “The employer unreasonably claimed that my non-attendance at the 23 April 2025 IME was a failure to comply with a lawful and reasonable direction in my termination letter …when the decision not to proceed with the IME was made by the employer themselves”42 [83] I do not accept Ms Chea’s argument that the reason for dismissal is unclear. The termination letter as stated above clearly refers to Ms Chea’s failure to follow directions to attend the April 2025 IME and the May 2025 IME. Nor do I accept Ms Chea’s argument that Ms Buick’s cancellation of the April IME means Ms Chea did not refuse to go to the IME. It is clear on the evidence that the primary reason the April IME did not go ahead was because Ms Chea refused to go. The fact that Ms Buick cancelled the IME after Ms Chea refused to go, does not somehow change the nature of Ms Chea’s refusal. [84] Noting this, I accept that if the College had terminated Ms Chea after this first refusal, it is unlikely that this alone would constitute a valid reason for dismissal, particularly as the College was awaiting the outcome of the complaint rather than insisting Ms Chea attend an IME. [85] I find the College’s reason for dismissal is based on Ms Chea’s refusal to attend the April 2025 IME, and then again refusing to attend the May 2025 IME. I will now consider whether this was a valid reason for dismissal. [86] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”43 and should not be “capricious, fanciful, spiteful or prejudiced.”44 [87] In circumstances where an employer contends there is a valid reason for the dismissal related to the Applicant failing to abide by a lawful and reasonable direction, it is necessary to consider: • Whether the direction was lawful and reasonable, and [2026] FWC 886 14 • Whether the Applicant’s conduct in failing to abide by the direction gave rise to a valid reason for the dismissal of the Applicant. [88] I now turn to consider both of these matters. 1.2 Was the College’s direction to attend an IME lawful and reasonable? [89] Generally speaking, an instruction by an employer to attend an IME in circumstances where an employee has a long-term injury which is impacting their ability to perform normal duties and it is unclear if and when they will be able to return to normal duties, will be a lawful and reasonable direction. [90] Ms Chea has raised a number of arguments as to why the instruction of the College should not be considered reasonable in the particular circumstances, which I now turn to consider. i. Previous unreasonable and discriminatory behaviour [91] Ms Chea argues that the instruction to attend an IME was not reasonable because it was an extension of the previous unreasonable and discriminatory behaviour towards her since her injury. Ms Chea has raised a multitude of alleged unreasonable behaviours, including the College’s initial response to Ms Chea’s injury and the issuing of the ‘Clause 13 letter’. However, Ms Chea’s main argument is that the College refused to make reasonable adjustments to accommodate her disability. In this regard Ms Chea argues: • The College unreasonably refused to offer Ms Chea a classroom on the ground floor where students could come to her. Instead, the College unreasonably allocated her a classroom on the first floor and required her to walk to replacement classes. The allocated room was not suitable because it was on the first floor, it was some distance from the staff room which isolated Ms Chea, and walking to the bathroom on inclined pathways exacerbated her injury. • The College made unreasonable requests for her to reduce her hours or take on an additional science class. • The College unreasonably refused to allocate administrative duties or allow Ms Chea to work from home. • The College unreasonably failed to support Ms Chea by providing science technicians or additional teachers to supervise classes. • The College unreasonably refused Ms Chea’s application to take unpaid leave for the remainder of 2025. Consideration [92] It may be that some of the College’s initial processes in dealing with Ms Chea’s injury were not ideal. For example, in my view, Ms Chea should have been supported to see her own treating practitioner immediately after the injury, rather than taken to the College’s preferred clinic. The College should also have promptly reimbursed the $24.00 Ms Chea was owed, rather than the reimbursement taking months to resolve. It may also be that the College needs to review its WorkCover processes/communication so that employees do not feel reluctant to submit a [2026] FWC 886 15 WorkCover claim in. However, ultimately, I do not think the College’s initial treatment of Ms Chea was unlawful or unreasonable. [93] After her return to work, the College responded to Ms Chea’s concerns and took a number of steps to adjust her work arrangements to accommodate her injury. In addition to providing Ms Chea with a key to the lift, the main adjustments were summarised in an email dated 29 July 2024 from Ms Jamieson to Ms Chea and included: • Removing Year 12 Mathematical Methods class; • Relocating Year 7, 8 and 9 mathematics classes to the same room (DO06) starting from August; • Relocating any Year 7 and 8 science classes that occur in a normal classroom to Room DO06; • For science experiments in a laboratory, a lab technician would be allocated to the class to assist with supervision so Ms Chea could stay seated at the front of class; and • Ms Chea would continue to be excused from yard duties. [94] It’s clear that Ms Chea felt that the College should have relocated all her classes to a ground floor classroom. Ms Chea submitted that this was reasonable because there were some underused classrooms on the ground floor, specifically rooms OB01, OB02, OB03 and OB04. Ms Chea argued these rooms were not in use, or alternatively the activities that took place in these rooms could be reallocated to another area in the school. Ms Chea provided an email from the College stating that OB01 is to be used as the Family Learning Centre and OB03 is be developed as the Heritage Room, “to be used for meetings, with displays showing the history of the school.”45 [95] At the hearing Ms Buick gave witness evidence that in addition to the two ground floor rooms being used as a Family Learning Centre and Heritage Room, the ground floor rooms were used for a range of other important functions that were not broadly publicised, relating directly to student support and welfare. Ms Buick gave evidence that the ground floor rooms were important because they allowed students attending particular support groups to move in and out of the spaces without being seen by other students. In addition, the ground floor rooms allowed visitors such as the police to attend the school without having to walk through the school. I accept Ms Buick’s evidence regarding the important use of the ground floor rooms and why the school wished to reserve the rooms for that purpose. Having found this, I do not find the College’s refusal to provide Ms Chea a ground floor room unreasonable. [96] Ms Chea felt it was unreasonable for the College not to be proactively providing a lab technician for Ms Chea’s science experiments. Ms Chea also believed the College should not have proposed she reduce her hours and should have allowed her to take an administrative role or work from home. [97] Part of the difficultly with this particular case is that Ms Chea did not wish to make a WorkCover claim. The result of this is that the College could not claim insurance to cover additional costs relating to Ms Chea performing light duties - for example the most obvious solution would have been for Ms Chea to reduce her workload to part-time hours so she could rest. If Ms Chea had submitted an accepted WorkCover claim, WorkCover insurance would [2026] FWC 886 16 have covered her additional hours so Ms Chea’s income would not reduce (at least for a period of time). [98] I do not accept Ms Chea’s argument that the College acted unreasonably by failing to accommodate her requests. On the evidence before me, the College made numerous ‘reasonable’ adjustments to try to accommodate Ms Chea continuing to work full-time. Unfortunately, on the evidence before me, it appears that Ms Chea’s injury meant she was unable to perform important parts of her previous role without substantial adjustments from the College, such as changing her role or having an additional teacher or science technician in each class to assist with supervision. [99] Finally, Ms Chea argues the College unreasonably refused her request to take unpaid leave for the remainder of 2025. Taking unpaid leave for an extended period is not an entitlement. Ms Chea was asking the College to hold her position open, and as a result, it can be assumed, the College would have to organise another teacher to cover Ms Chea’s usual workload. Given this, rather than approve the unpaid leave, Ms Buick quite reasonably sought further medical advice before committing to the next steps. [100] For completeness I note I do not find the issuing of the Clause 13 Letter unreasonable. The letter raised valid concerns that the College wished to discuss with Ms Chea. [101] Given my findings above, I am not of the view that the College’s past conduct towards Ms Chea was unreasonable and consequently do not accept the argument that the College’s past conduct made the IME request unlawful or unreasonable. ii. The College already had adequate medical evidence from Ms Chea’s treating doctor/ the IME provider had negative reviews. [102] Ms Chea argues that the IME request was unreasonable because the College already had adequate information from Ms Chea’s treating doctor, and they should have requested more information from her doctor before requiring an IME. Here Ms Chea also raises that she believes Ms Buick was intentionally misrepresenting required medical documents by asking Ms Chea to provide a certificate of capacity and then sending a request for a report that was not a certificate of capacity. In addition, Ms Chea argues that the IME provider had negative reviews on the internet, so it was unreasonable to require Ms Chea to attend this provider. [103] I understand Ms Chea’s argument that it was unclear what type of report the College was seeking from her treating GP. While the College specifically requested a certificate of capacity, they then provided Dr Tang with a report to fill in that was not a formal certificate of capacity. However, ultimately this argument misses the fundamental point. The College directed Ms Chea to attend an IME, not because her GP had provided medical information in a report instead of a certificate of capacity, but because the medical information from Ms Chea’s doctor confirmed that she was still unable to perform the inherent requirements of the role. Given the prolonged impact of Ms Chea’s injury the College was entitled to seek further medical information and a second opinion through an IME. [104] I accept Ms Chea was not happy with the choice of IME provider based on Google reviews, however, I also accept the College’s submission that whilst Google reviews reflect [2026] FWC 886 17 individual opinions of some customers, there is no evidence that the IME provider does not meet professional standards. Had the provider given a report that conflicted with the medical evidence of Ms Chea’s treating doctor, I am of the view that, at that stage, it would have been reasonable for Ms Chea to seek a further IME by an agreed provider. [105] I do not accept the argument that previous medical evidence from Dr Tang, or Ms Chea’s concerns with the IME provider, negates the reasonableness of the College’s direction to attend an IME. iii. Ms Chea had lodged a WorkCover Claim [106] Ms Chea argues, in effect, as she lodged a WorkCover Claim on 28 April 2025, the WorkCover process should have taken over from the College inquiring into Ms Chea’s medical condition. In this regard, Ms Chea gives evidence that she had been informed by WorkSafe that she did not have to attend an employer organized IME. Ms Chea also attended a WorkCover IME on 19 May 2025 illustrating she was not opposed to attending an IME. Ms Chea also argues that the real reason for her termination was to avoid WorkCover obligations. [107] The College argues that Ms Chea’s WorkCover claim did not negate the College’s right to direct Ms Chea to attend an IME. [108] I agree with the College’s submissions that Ms Chea’s WorkCover claim did not render the College’s direction to attend an IME unreasonable. [109] It is not unusual, in some circumstances, for both an employer and a WorkCover insurance company to seek separate IMEs. This is because the IMEs are for different purposes, although there is likely to be considerable overlap. In this particular instance, the College initially sought an IME prior to Ms Chea making a WorkCover claim. The College was seeking an IME to understand Ms Chea’s injury, whether Ms Chea could perform the inherent requirements of her job, and whether there were any reasonable adjustments the College could make to have Ms Chea return to work safely, regardless of whether her WorkCover claim was accepted or not. In comparison, a WorkCover IME would provide the insurance company with information to determine whether Ms Chea’s injury was work related and therefore whether workers’ compensation was payable, as well as medical information regarding Ms Chea’s current capacity. [110] In the current circumstance I am of the view it was reasonable for the College to seek an IME despite the WorkCover process. [111] Finally, I do not accept Ms Chea’s argument that the college dismissed Ms Chea to avoid WorkCover obligations. It appears to me that the College would have liked Ms Chea to submit a WorkCover claim earlier than she did. On 29 July 2024 Ms Jamieson and Ms Cannon confirmed with Ms Chea they could not pay for her medical treatment unless she submitted a WorkCover claim. Ms Buick gives evidence that she encouraged Ms Chea to make a WorkCover claim.46 In an email from Ms Buick to Ms Chea dated 28 August 2024, Ms Buick notes that a worker who is injured at work would normally be on WorkCover and states: [2026] FWC 886 18 “Should you wish to reconsider placing a WorkCover claim, I will ask Trish to send you through the paperwork (I believe she has already emailed you regarding this but I am happy to ask her to do so again). … You referenced that you thought it was best for the school that you not put in a WorkCover claim; this is most assuredly not the case and we would never seek to influence staff regarding whether or not they should lodge a WorkCover claim.”47 [112] On 29 April 2025 Ms Buick emailed Ms Chea confirming the College had received the WorkCover form and that the WorkCover officer would be in contact regarding some missing details. I do not accept Ms Chea’s argument that the College delayed putting in her claim. Her claim was submitted within the allowed timeframe. [113] Accordingly, I do not accept Ms Chea’s argument that the WorkCover process made the IME direction unreasonable. I discuss Ms Chea reliance on the WorkSafe advise to refuse to attend an IME below at [119-124]. iv. Ms Buick had already determined Ms Chea could not perform the inherent requirements of the role. [114] Ms Chea argues that the request to attend an IME was unreasonable because Ms Buick had already determined that Ms Chea could not perform the inherent requirements of the role, and therefore her termination was predetermined. In this regard Ms Chea refers to Ms Buick’s witness statement at [28] where Ms Buick states that Ms Chea “… was unable to undertake the inherent requirements of her role”.48 Ms Chea’s argument appears to be that because Ms Buick had already reached this position, there was no need for the IME, and Ms Chea’s termination was predetermined. [115] I do not accept this argument. Ms Chea’s treating doctor had already confirmed Ms Chea could “not fully” perform her normal duties.49 It is also clear on Ms Chea’s own evidence that she was unable to perform normal duties. Accordingly, Ms Buick’s opinion that Ms Chea could not perform the inherent requirements of her role is not surprising. However, Ms Buick still required an IME because she was seeking information about when Ms Chea could return to her normal duties, and/or what were reasonable adjustments. [116] For the reasons given in [89 – 115] above, I find that the College’s instruction for Ms Chea to attend an IME was a lawful and reasonable request from an employer seeking more medical information. In this case, the instruction appears particularly reasonable because: • Ms Chea continued to be unable to return to her normal duties despite it being almost a year since her injury, and despite taking all of Term 1 2025 off to rest; • Ms Chea had raised numerous concerns that performing the available modified duties were exacerbating her injuries; and • It was unclear if, and when, Ms Chea would be able to perform normal duties. [117] I now turn to consider whether Ms Chea’s refusal to attend the IMEs was a valid reason for termination. 1.3. Was The Applicant’s Refusal to Attend the IME a Valid Reason for Termination. [2026] FWC 886 19 [118] I turn now to whether Ms Chea’s refusal to attend the IMEs provided a valid reason for her dismissal. In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.50 i. WorkSafe Advice [119] Ms Chea argues that her refusal to attend the May 2025 IME should not constitute a valid reason for termination because she had lodged a WorkCover claim and was relying on advice from WorkSafe. In this regard, Ms Chea gives evidence that on the morning of 5 May 2025, she spoke to a staff member at the WorkSafe Advisory Service, who told her she did not have to attend the employer organised IME. Ms Chea later emailed the WorkSafe Advisory Service and asked them to confirm the advice they had given her. An email from the WorkSafe Advisory Service dated 20 May 2025 to Ms Chea states: “I can confirm that on Monday 5th May 2025 we spoke regarding your requirements to attend an Independent Medical Examination (IME) arranged by your employer and advised that under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), there is only a requirement to attend IME appointments arranged by the insurance agency. Our legislation does not take employer IME reports into consideration for the decision of liability on a claim as your agent will use their own IME report for those decisions.”51 [120] The College argues that Ms Chea’s WorkCover claim did not preclude her from following the lawful and reasonable direction by the College to attend an IME. The College provided evidence of correspondence to Ms Chea that specifically alerted Ms Chea to the College’s position. For example, an email from Ms Buick to Ms Chea on 2 May 2025 states: “The escalation of your complaint, and the submission of your Work Cover Claim, do not preclude you from being required to follow any directions I make as your employer.” Consideration [121] As discussed above at [106-113], the WorkCover process does not preclude the College from making a lawful and reasonable direction to attend an IME. [122] The advice from WorkSafe to Ms Chea does not contradict this position. The advice in the email dated 20 May 2025 provides that for the purposes of WorkCover, there is only a requirement to attend an IME organised by the insurance agency. The advice says nothing about whether an employer may instruct an employee to attend an IME for other purposes. [123] It may be that Ms Chea misunderstood the advice from the WorkSafe Advisory and believed they were saying she was not required to attend any employer IME. However, in my view, it is likely that Ms Chea heard what she wanted to hear because she did not want to attend the IME. In this regard, I note Ms Chea consistently refused to attend an IME organised by the [2026] FWC 886 20 College from 11 April 2025. The WorkSafe advice was only received a few hours before the final deadline to consent to an IME on 5 May 2025. The College had put Ms Chea on notice that it considered the IME direction a reasonable and lawful direction and that Ms Chea’s WorkCover claim did not preclude Ms Chea having to attend the IME. If the WorkSafe Advisory Service appeared to give advice which conflicted with the College, Ms Chea should have sought further clarity at the time. [124] I do not find that that the WorkCover advice makes Ms Chea’s refusal reasonable. ii. No refusal to attend [125] Ms Chea appears to submit that she did not refuse to attend an IME. I do not accept Ms Chea’s submission in this regard. It is quite clear on the evidence that she refused to attend both IMEs arranged by her employer. The fact that she was prepared to attend an IME arranged by WorkCover is beside the point. [126] I find that Ms Chea’s refusal to attend the IME, in the particular circumstances of this case, established a valid reason for termination. In coming to this finding, I particularly note: • Since at least 28 August 2024, the College has repeatedly indicated to Ms Chea that it required further information regarding her injury. For example: o Ms Buick’s email dated 28 August 2024. o Ms Buick’s email dated 6 September 2024. o The Clause 13 letter dated 14 October 2024. o The meeting on 18 October 2024. o Ms Buick’s email dated 23 October 2024. o Ms Buick’s email dated 11 November 2024. o Ms Buick’s email dated 2 April 2025. o Ms Buick’s email dated 7 April 2025. o Ms Buick’s email dated 10 April 2025. • It should have been reasonably apparent to Ms Chea that this was a reasonable and lawful request, noting the length of time Ms Chea had been injured and the fact she was now seeking her position be held open for a significant period of time. • Ms Chea had been put on notice that the College was of the view that its direction to attend an IME was a lawful and reasonable request and that failure to do so may lead to disciplinary action, including termination. Of particular note, after Ms Chea’s first refusal to attend the IME on 23 April 2025, Mr Houlahan’s report into Ms Chea’s complaint stated: o “Employers are entitled to issue reasonable directives to employees. If employees refuse to follow reasonable directives from their employer, it may be grounds for termination of employment. It was reasonable that Ms Buick clearly informed Ms Chea she was required to attend the appointment and of the potential consequences for refusing to attend.” [2026] FWC 886 21 (Emphasis added) [127] In conclusion, I find that the directions to attend an IME both on 23 April and 6 May 2025 were reasonable directions. I find Ms Chea’s refusal to attend both the IMEs provided a valid reason for termination. 2. Was the Applicant notified of the valid reason? [128] For the purposes of s.387(b) of the Act, notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,52 and in explicit, plain and clear terms.53 [129] The show cause letter sent to Ms Chea on 9 May 2025 states the College has “serious concerns in relation to your repeated failure to comply with reasonable and lawful directions” and later states “Your failure to attend either of the appointment[s] indicates that you do not intend to comply with this lawful and reasonable direction”.54 [130] Ms Chea argues she was not properly notified of the valid reason because it was unclear whether she was responding to a claim that she failed to comply with two directions to attend an IME, or only one (noting that Ms Buick cancelled the first IME). I have considered this matter already above at [83]. [131] I am satisfied that Ms Chea was notified of the valid reason, ie. she had not complied with lawful and reasonable directions to attend the April 2025 IME and the May 2025 IME. 3. Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [132] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.55 [133] Ms Chea argues she was not given a proper opportunity to respond because the College had pre-determined their decision to terminate her and Mr Houlahan conducted the meeting in an interrogative manner, trying to get Ms Chea to admit she was wrong. [134] Mr Houlahan gives evidence that the meeting went for approximately 1.5 hours and Ms Chea spoke for almost the entire time.56 [135] Ms Buick gives evidence that the show cause meeting went for nearly 2 hours.57 [136] The termination letter dated 21 May 2025 states that in the meeting on 15 May 2025 Ms Chea provided:58 “Various explanations for your failure to comply with both directions, as follows: [2026] FWC 886 22 - The directions were not reasonable, on the basis that you had already provided sufficient medical information, that your treatment prior to the directions being issued had been unreasonable, and that by submitting a work cover claim the College had no right to direct you to attend an IME; - You had not actually refused to attend an IME; - That I had determined to terminate your employment whether you attend the IMEs or not” [137] I find that the show cause meeting went for 1.5 – 2 hours, and during that time Ms Chea had the opportunity to raise a range of responses to the allegation that she had not complied with reasonable directions to attend the April and May 2025 IMEs, as summarised in the termination letter. Ultimately, the College did not accept Ms Chea’s responses and subsequently decided to terminate her employment. [138] Nor is there any compelling evidence before me to suggest Ms Chea’s dismissal was predetermined. [139] Accordingly, I am satisfied that Ms Chea had a reasonable opportunity to respond to the reason for her dismissal. 4. Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [140] It is uncontested that Ms Chea’s father attended as a support person. 5. Was the Applicant warned about unsatisfactory performance before the dismissal? [141] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. 6. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? 7. To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [142] I will deal with these two considerations together. The Employer had 173 employees at the time of Ms Chea’s dismissal, and access to representation by Catholic Employment Relations. Given the size and resources of KEM, neither of these considerations are relevant. 8. Any other relevant matters [143] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [2026] FWC 886 23 [144] Ms Chea raised a significant number of other matters she claimed were relevant including alleged breaches of other provisions in the FW Act and other legislation. Ms Chea also argued that the termination was harsh because the consequences for the termination were severe and disproportionate. In this regard Ms Chea claimed financial hardship; the termination added complexity to her WorkCover claim and delayed payment for a number of months; and that being terminated for “serious misconduct” has impacted her ability to find future work and potentially impacted her Victorian Institute of Teaching registration process. [145] I have taken into account Ms Chea’s submissions. [146] As will become clear below, while I have considerable sympathy for Ms Chea, ultimately these considerations have not displaced my view that the College was entitled to terminate Ms Chea for failure to follow a lawful and reasonable direction. [147] However, to the extent that the termination was for serious misconduct, I am of the view that this was harsh. It is not particularly clear that the College terminated Ms Chea for serious misconduct. In the termination letter, the reason given for dismissal is failure to comply with a lawful and reasonable direction to attend IMEs. While failing to comply with a lawful and reasonable direction certainly can be serious misconduct, this is not always the case. Later in the termination letter Ms Buick states she is of the view that Ms Chea’s actions are serious misconduct, and that this opinion is supported by Mr Houlahan and Ms Blytham. However, the College then goes on to confirm that in addition to unpaid leave entitlements, Ms Chea will receive four weeks’ notice in lieu. Generally, when an employee is terminated for serious misconduct, no notice or payment in lieu is provided. [148] In my view, while Ms Chea’s refusal to attend the IMEs as directed was grounds for termination, it was not serious misconduct. Ms Chea, who was suffering from a long-term injury and, no doubt, the emotional impacts of not being able to return to a job she loved, may have been misguided and unreasonably defiant in her refusal to attend an IME. But, given she was on unpaid leave and her conduct did not place her own or any other employees’ safety at risk, it is hard to see her conduct falling into the category of serious misconduct. [149] Despite my finding that it was harsh for her termination to be described as serious misconduct, as will become clear below, this is a nugatory point, as there is no identifiable economic loss and therefore no available remedy. Conclusion - was the dismissal harsh, unjust or unreasonable? [150] Ms Chea is clearly a hardworking and talented teacher. Ms Chea has provided the Commission with evidence of numerous student messages to herself, and I have no reason to doubt that many students have really valued Ms Chea as a teacher. [151] Ms Chea has gone through a very difficult couple of years. She fell on the stairs at work, and ongoing issues with her knee have made her usual teaching duties extremely difficult. I sympathise with Ms Chea. Ms Chea had a job she loved and was good at. Ms Chea feels that she was injured at work through no fault of her own, and has struggled ever since. [2026] FWC 886 24 [152] However, after considering all the submissions and evidence before me and the matters in section 387 of the Act, I have come to the conclusion that the College was entitled to dismiss Ms Chea. As discussed above I have found that the College’s direction to attend IMEs in the context of Ms Chea’s long term injury, was a lawful and reasonable direction, and Ms Chea’s refusal to attend the IMEs amounts to a valid reason for termination. I have also found that the termination was procedurally fair including finding that Ms Chea was appropriately notified of the reason for termination and was given an opportunity to respond. [153] As noted above to the extent that the termination was on the basis of serious misconduct, I find this harsh. [154] However, ultimately this does not provide any remedy for Ms Chea. Reinstatement is not appropriate – as stated above, the College was entitled to terminate Ms Chea for unreasonably refusing to follow directions and I am of the view that the working relationship between Ms Chea and the College had become untenable. Here I note that Ms Chea not only refused to follow the directions of Ms Buick, but also the position of other senior staff of KEM, such as Mr Houlahan.59 [155] Nor is there any apparent compensation. I have considered the matters in section 392 of the Act. My finding that the College was entitled to dismiss Ms Chea, but not for serious misconduct, means that the College should have provided Ms Chea with notice (or payment in lieu). Had Ms Chea remained engaged during her notice period, she would have been on unpaid leave (or alternatively in receipt of WorkCover payments). In any event, despite raising serious misconduct, the College did provide Ms Chea with 4 weeks’ payment in lieu of notice. Accordingly, to the extent that Ms Chea was dismissed for serious misconduct, I do not find that Ms Chea suffered any economic loss and therefore is not entitled to any compensation. [156] I find that: 1. The College had a valid reason to dismiss Ms Chea, and met procedural fairness requirements in relation to the dismissal; 2. To the extent that the dismissal was for serious misconduct, I find this harsh. In my view Ms Chea’s conduct was not serious misconduct; and 3. Reinstatement is not appropriate, and given there is no economic loss, there is no remedy ordered. COMMISSIONER Appearances: J Chea the Applicant [2026] FWC 886 25 M Dunne for the Respondent Hearing details: 2025 November 13 Melbourne Printed by authority of the Commonwealth Government Printer <PR797735> 1 DHB 504 Ms Buick Statement at 5.1; DHB 100 and 158 emails from Ms Buick to Ms Chea dated 12 June 2024 and 28 August 2024. 2 DHB 100 JC 10 Email Buick to Chea. 3 DHB 101 Email from Chea to Buick. 4 DHB 105 JC 12. 5 DHB 136 Email from Chea to Jamieson. 6 DHB 138. 7 DHB 62 Chea Statement at 64. 8 DHB 141 Email from Jamieson to Chea. 9 DHB 155 Email from Buick to Chea dated 28 August 2024. 10 DHB 186 Doctor’s certificate 31 August 2024. 11 DHB 187 Email Buick to Chea 6 September 2024. 12 DHB 68 Chea Statement at [109]. 13 DHB 220 Email from Buick to Chea dated 13 October 2024. 14 DHB 225-227. 15 DHB 248 Letter Buick to Dr Chi Lye Tang. 16 DBH 251 Medical Report dated 6 November 2024. 17 DHB 252. 18 DHB 506 Ms Buick Statement [23]-[26]. 19 DHB 70-71 Chea Statement at [137]. 20 DHB 270. 21 DHB 278 Medical Certificate dated 6 March 2025. 22 DHB 276 Email from Buick to Chea dated 2 April 2025. 23 DHB 281 Medical Report dated 2 April 2025. 24 DHB 284 Email from Buick to Chea dated 7 April 2025. 25 DHB 294 Email Buick to Chea dated 10 April 2025. 26 DHB 295 Email Chea to Buick dated 11 April 2025. 27 DHB 296 Email Buick to Chea dated 11 April 2025. 28 DHB 309 Chea’s Complaint to KEM dated 14 April 2025. 29 DHB 507 Buick Statement at [33]. 30 DHB 74 at Chea’s Statement at [161]. 31 DHB 327 Complaint Investigation. 32 DHB 334 Email Buick to Chea. [2026] FWC 886 26 33 DHB 335 Email Chea to Buick and Houlahan dated 1 May 2025. 34 DHB 341 Email Buick to Chea dated 2 May 2025. 35 DHB 75 Chea at [174]. 36 DHB 349. 37 DHB 352 Email from WorkSafe to Ms Chea. 38 DHB 350 Email from Chea to Buick. 39 DHB 366 Show cause letter dated 9 May 2025. 40 DHB 508 Buick Statement at [44], and DHB 512 Houlahan Statement at [35]. 41 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 42 Chea Closing Submissions at [2]. 43 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 44 Ibid. 45 DHB 153 Email regarding OB01 and OB03 dated 26 August 2024. 46 DHB 505 Buick Statement at [18]. 47 DHB 155 Email from Buick to Chea dated 28 August 2024. 48 DHB 506 Buick Statement at [28]. 49 DHB 281 Dr Tang’s Medical Report dated 2 April 2025. 50 Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499. 51 DHB 352 Email from WorkSafe Advisory to Chea dated 20 May 2025. 52 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [151]. 53 Previsic v Australian Quarantine Inspection Services Q3730 (AIRC, Holmes C, 6 October 1998). 54 DHB 366 Show Cause letter dated 9 May 2025. 55 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. 56 DHB 512 at [35]. 57 DHB 508 Buick Statement at [44]. 58 DHB 379. 59 In Mr Houlahan’s report of 29 April 2024 he states that the College was entitled to proceed with an IME.