| [2015] FWC 1080 [Note: An appeal pursuant to s.604 (C2015/500 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 24 April 2015 [[2015] FWCFB 2586] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dennis Sipple
v
Coal & Allied Mining Services Pty Limited trading as Mount Thorley Warkworth Operations
(U2014/256)
COMMISSIONER STANTON |
NEWCASTLE, 18 FEBRUARY 2015 |
Termination of employment - injured worker - exacerbation of personal injury - capacity to perform the inherent requirements of the position - valid reason for termination - dismissal not harsh, unreasonable or unjust - applicant afforded a “fair go all round” - application dismissed.
[1] This matter concerns an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Dennis Sipple (the applicant) seeking reinstatement following his dismissal by the respondent, Coal and Allied Mining Services Pty Ltd trading as Mount Thorley Warkworth Operations on 23 January 2014 due to his inability to perform the inherent requirements of his position as a Pit Services Operator with the respondent at its Mount Thorley Warkworth mine.
[2] The Pit Services Operator classification is multi-skilled and was introduced in 2010. Aside from the mandatory core skill of haul truck driving, the classification requires operators to perform a range of duties on equipment that they are certified to operate. That equipment includes the operation of 11 dozers, eight graders, two front-end loaders, two scrapers, three excavators and two service carts used to refuel, grease and oil, plant and equipment.
[3] The applicant commenced his employment with the respondent as on Operator in June 1985. At the time of his dismissal, he was 57 years of age.
[4] At the hearing of the matter Mr K Endacott from the Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District (the Union) appeared for the applicant. Mr A Dearden, lawyer, appeared for the respondent by permission.
[5] It was the applicant’s evidence that when he was dismissed on 23 June 2014, the reason given was that he was no longer able to perform the inherent requirements of his position as a multi-skilled worker. However, the applicant contended that at the time of his dismissal, he was fit to undertake the role of Service Cart Operator, a job he had performed for almost 10 years. He further contended that his duties with the respondent had almost exclusively involved service cart operations, with only short periods of up to an hour being spent from time to time on alternative pit equipment. The applicant stated he had operated a service cart since 2003 on the recommendation of the respondent’s doctor, Dr Maurice Harden and the then mine manager, Mr Keith Harley, following surgery related to appendicitis and subsequent complications which arose from that surgery. 1
[6] The applicant stated that in early 2012 his superintendent, Ms Vanessa Tough, took offence at the manner in which he operated the service cart and shortly thereafter, Ms Tough informed him that he was to drive graders. The applicant informed Ms Tough that he would have difficulty driving a grader on a full time basis. He commenced driving the grader as directed but due to his medical difficulties, he would drive the grader one hour on and one hour off. He later informed Ms Tough that the work was causing him difficulty. By that stage, the applicant had also raised his concerns with the Open Cut Examiner (OCE), Mr Steven McBride.
[7] According to the applicant, Ms Tough’s response was that “she would fix it up for me.” The next day, the OCE informed the applicant that he had spoken with Ms Tough who told him to tell the applicant that he would remain on the grader and tell him, “to do what you are fucking told.” 2
[8] On 9 April 2012, the applicant left work and attended Singleton Hospital as a result of acute pain. Ms Tough visited him in hospital but later refused to accept a hospital medical certificate on the grounds that it was not from his normal treating doctor. The applicant’s doctor, Dr John Garkut subsequently provided a medical certificate on 11 April 2012 which stated:
Mr Dennis Sipple is fit for his normal work duties. In 2002, after on appendix rupture, he developed a painful neuralgia of both thighs. As a result he is unable to sit in one position for any extended period of time. He is able to operate the service truck without any problems as he has regular movement of his legs, and he can relieve other machines for short periods of time.
[9] On 13 April 2012, a Return to Work (RTW) Plan (RTW1) was prepared for the applicant. 3 RTW1 commenced on 13 April 2012 and stated the applicant was able to undertake suitable duties restricted to service cart operation and hot-seating other plant machinery for short periods. RTW1 identified the applicant:
[10] As part of RTW2 dated 23 April 2012, Ms Tough proposed the applicant should commence training on haul trucks. Training commenced on 24 April 2012 with a 5 minute break per hour due to the risk of reoccurring leg pain. Later in the day, the applicant spoke to Ms Tough about the leg pain he was experiencing. However, no alternative work was provided. Training continued on 28 April 2012 and during the course of that shift, the OCE allocated grading work to him as he was experiencing severe leg pain whilst operating the haul truck. 4
[11] Training continued on 29 April 2012. However, the applicant incurred further severe leg pains. The OCE referred him to the First Aid Room and he was later taken home.
[12] The applicant claimed that the haul truck training was inconsistent with his RTW plan and in his view, he should have been operating the service cart. Subsequently, an Incident Report concerning the applicant’s leg pains caused while driving the haul truck under training was filed. 5
[13] On 30 April 2012, the applicant’s treating doctor, Dr Garkut, provided him with a medical certificate which stated in part:
He is fit to return to his usual work of service cart operation, and relief for short periods on other machinery from 30.4.12.
[14] On 1 May 2012, the applicant received a telephone call from the respondent’s Health and Injury Management Specialist, Ms Christine Richardson, who advised him that Ms Tough had instructed her to inform him not to come to work on 2 and 3 May 2012. Ms Tough later contacted him to establish whether he was capable of performing normal duties. The applicant informed Ms Tough that he had a medical certificate that allowed him to operate the service cart and provide short-term machine relief. Ms Tough subsequently stated she would probably return him to the haul truck on an hour on, hour off basis.
[15] Following his return to work, the applicant’s haul truck supervisor informed him that he could not accommodate his hour on, hour off restriction. Shortly thereafter, the OCE asked him to drive a grader with a break every hour. The OCE also informed the applicant that service cart work was not being offered to him. Haul truck training continued on 3 and 7 May 2012. During that time, the Mine Manager, Mr Morgan Costello asked the applicant “how he was going,” the applicant replied, “Not well” and a discussion ensued concerning his injury. It was the applicant’s evidence that in the course of a conversation, Mr Costello denied the mine was “trying to get rid of me.” 6
[16] On 11 May 2012, the applicant met with Dr Harden and a revised RTW plan was drafted. He also advised Dr Harden that he was using pain relief medication. Ms Tough and the OCE were also in attendance. Ms Tough subsequently sought advice concerning the revised RTW from her supervisor. Ms Tough instructed the applicant to go home and return to work for a meeting on 16 May 2012. At that meeting, Ms Tough informed the applicant that there was no work for him and he could either take time off without pay or take annual leave. Service cart work was not available.
[17] It was the applicant’s evidence that the respondent deliberately placed him in roles that he was incapable of undertaking due to his medical restrictions. In or around that time, the applicant contended Dr Harden considered the respondent should have allowed him to operate the service cart. On 15 May 2012, Dr Garkut issued a WorkCover medical certificate stating that the applicant was fit for suitable duties from 15 May to 15 June 2012 operating the service truck or “other jobs with frequent movement and position change.” 7 A further WorkCover medical certificate issued for the period 24 May to 7 June, 7 June to 17 June, 17 June to 6 July 2012 identified similar restricted duties.
[18] On or about 22 June 2012, RTW3 was finalised. RTW3 identified the applicant’s duties were restricted to the service cart or other jobs with frequent movement and position changes. The RTW3 identified unlimited service cart work and a two-stage proposal where the applicant could work on haul trucks and auxiliary equipment for up to one hour between 6 July and 24 July 2012 and, up to two hours from 25 July to 21 August 2012. 8
[19] RTW4 operated from 25 July 2012 and was revised on 17 August 2012. RTW4 identified the applicant’s work was restricted to the operation of the service cart and machinery relief for short periods of time. The suitable duties set out in RTW3 were rolled over to 18 September 2012, with the exception of driving haul trucks for the period of 20 July to 26 August 2012.
[20] WorkCover medical certificates issued on 13, 23 and 30 August, 7 and 18 September 2012 enabled the applicant to operate the service cart without restriction or, provide machinery/haul truck relief for periods of up to an hour. With respect to haul truck driving, the applicant must “be able to stop and walk around when needed....” 9
[21] RTW5 operated from 20 September 2012. RTW5 restricted the applicant to service cart work and short term auxiliary machinery relief for up to an hour on the proviso that he was able to stop and walk around when required within that time limit. Similarly, he was able to provide haul truck relief with the provision that he could stop and walk around if required. RTW5 replicated the suitable duties identified in RTW3 and applied those duties for the period 17 August to 13 November 2012.
[22] RTW6 applied from 26 October 2012. RTW6 was similar to RTW5. In or about that time, the applicant was afforded service cart work up until 6 December 2012 when Ms Tough decided he was to undertake grader driving on an hour on, hour off basis. The OCE subsequently decided not to place the applicant on grader work and in lieu thereof, assigned him to cleaning and refuelling duties.
[23] The applicant continued to provide WorkCover medical certificates. A medical certificate issued on 10 December 2012 stated:
...suitable for operating service cart for the majority of shift and can relieve ancillary machinery for up to one hour per shift, but must be able to stop and walk around when needed within the hour, cannot do more than an hour as this will aggravate his condition. 10
[24] On or about 11 December 2012, the applicant met with Ms Tough, Ms Richardson and Mr Mick Robinson, site delegate for the Union where Ms Tough informed him that his treating doctor had varied his restrictions and as a result, there was no work available to him. The applicant contended Ms Tough informed him the service cart work was no longer available to him. The applicant continued to provide the respondent with WorkCover medical certificates.
[25] Coal Mines Insurance (CMI) wrote to the applicant on 15 August 2013 to advise that it proposed to cease liability for his injury from 29 August 2013.
[26] The applicant’s treating doctor subsequently certified him fit for normal duties on 27 August 2013 - those normal duties being the operation of the service cart for the majority of the shift and relieving ancillary equipment. The applicant considered the service cart work was part of his normal duties on the grounds that he had been undertaking that type of work since 2003. Shortly thereafter the applicant met with the respondent where Mr Costello advised him that “we have put someone else in your job. That is not your job now. You have to drive everything.” 11 The applicant was advised to apply for sick leave which was later disputed by the Union on the grounds that he was fit for “normal” duties. The matter was referred to the Commission as a dispute pursuant to s.526 of the Act.
[27] The respondent wrote to the applicant on 6 September 2013 requesting him to attend an occupational physician, Dr David Croker:
The Company has made this request due to the fact that you currently have a non-work related injury which has been aggravated during prior attempts to upgrade your duties from your restrictions through our Return to Work program. Out of duty of care to you, it is important that this Return to Work program is reviewed before you recommence work following the recent aggravation of your injury. 12
[28] The Union subsequently wrote to the respondent on 13 September 2013 and disputed the respondent’s request that the applicant be assessed by Dr Croker, 13 principally on the grounds the request was inconsistent with the relevant WorkCover Guidelines.
[29] The applicant was subsequently assessed by Dr Croker on 14 October 2013. The assessment report stated the following:
Mr Sipple’s clinical presentation has now largely settled.
He has been absent from work for an extended period.
I note that the treating doctor is advising that he primarily utilise the Service Cart for the majority of the shift combined with a shorter period of time whereby he undertakes relief axillary [sic] equipment operation.
With respect to diagnosis, I agree with details outlined earlier in the report in this regard.
Concerning fitness for work, I note that you have requested that I respond in the following terms - whether Mr Sipple is fit for: “Pre-injury duties i.e. returning to work in the role of a multi-skilled operator, operating any machinery on which he is trained for any assigned duration or permanently modified duties i.e. returning to work with permanent restriction ‘operating Service Cart for majority of shift, and relieving axillary [sic] equipment’”.
To facilitate this process, I have had discussions with Dr Garkut and Dr Harden. In this regard, I have indicated that written and verbal consent had been obtained from Mr Sipple such that multiple liaison could take place.
Aspects relating to Mr Sipple’s medical condition and work duties were discussed.
Taking into account the views of these doctors, the information contained in the referral material inclusive of the detailed Role Profile Report, it is my view that the second of these two options is appropriate i.e. that Mr Sipple is fit for permanent modified duties such that he operate the Service Cart for the majority of the shift and undertake relief axillary [sic] equipment operation for a small component of the shift. (emphasis added)
[30] The applicant met with the respondent on 18 December 2013 and was given a show cause letter 14 stating the respondent was proposing to terminate his employment on the grounds that it had concerns regarding his ability to perform the inherent requirements of his role as Mining Operator, which following a restructure in 2010, required operators to be multi-skilled to operate a broad range of machinery.
[31] The show cause letter also stated that as a result of the applicant’s non-work related injury which was aggravated during the respondent’s attempts to upgrade his duties through the various RTW plans, he had been independently medically assessed by Dr Croker as being fit for permanent modified duties - operation of the service cart for the majority of shift plus relief on ancillary equipment for short periods. As the respondent required all Mining Operators to be able to perform the inherent requirements of their position, no position existed whereby the applicant could undertake modified duties only. 15
[32] The respondent convened a show cause meeting with the applicant and his Union representative on 30 December 2013. The applicant was subsequently terminated during a further meeting with the respondent on 23 January 2014. No alternative roles suitable to the applicant’s circumstances were available.
[33] The applicant claims his termination has caused him and his family significant financial strain and given his age and skills, it was unlikely he would be able to secure alternative work.
[34] The applicant was subject to cross-examination on 28 May and 2 July 2014. The applicant confirmed his most recent position with the respondent was as an operator within the Pit Services Team. 16 He also agreed that officers of the respondent, including Mr Costello, Ms Tough and Ms Clive had individual obligations with respect to occupational health and safety.17 The applicant agreed that the respondent required a flexible workforce and in that regard, it may direct employees to carry out any work that is within their skills, training, experience and knowledge subject to safety and statutory requirements.18
[35] The applicant recalled that in 2010, the respondent formed the Pit Services Team. He acknowledged that by 30 September 2010, his pay dockets had been amended to state his position with the respondent had changed from “C and P crew C” to “Pit Services C Crew.” 19
[36] The applicant agreed that an objective of the various RTW plans was that he returned to pre-injury duties as an operator at the respondent’s Mount Thorley Warkworth mine. 20 The applicant stated that whilst he considered he was able to operate the service cart without incurring excessive pain, Dr Harden’s view at all times was that he was “unable to sustain a role as an operator maintaining a job with regular static sitting despite prolonged breaks.”21 He further agreed that the position of the respondent and Dr Harden was that at any time when driving haul trucks, “you could pull over, get out, move around, walk around if there was any discomfort whatsoever.”22
[37] The applicant agreed that the medical certificate provided by Dr Garkut on 27 August 2013 which stated he was fit for pre-injury duties, “operating a service cart for majority of the shift and relieving auxiliary equipment”, followed a discussion he had with Dr Garkut. He agreed that he “wanted it to be clear” that his pre-injury duties were associated with the service cart despite the restructure which lead to the creation of the Pit Services Team in 2010. 23 The applicant further agreed that Dr Croker, who performed the independent medical assessment, assessed him to be fit only for permanently modified duties restricted largely to service cart work, rather than the scope of the Pit Services Operator position which he had occupied since 2010.24
[38] The applicant agreed that when he met with the respondent on 18 December 2013, he was told that the respondent was considering the termination of his employment on the grounds that no alternative roles were available and he was unable to fulfil the inherent requirements of the Pit Services Operator classification. 25
[39] Ms Tough was appointed the respondent’s Pit Services Superintendent in May 2010 following a restructure of the mining team which saw the introduction of a specialist Pit Services Team comprising approximately 100 operators. Each operator was required to become multi-skilled so as to enable them to operate all types of equipment used in the production of coal. The review had identified inefficiency and underutilisation of machinery assets.
[40] Ms Tough wrote to employees on 17 September 2010 explaining the new method of work and she also confirmed the respondent’s expectation that operators would require more than one pit services skill competency. She further advised that haul truck driving skills were mandatory.26 Shift briefings to explain how the new service team would operate were conducted on 20 September 2010. The applicant attended the C Shift briefing.
[41] On or about 10 October 2010, the applicant approached Ms Tough and informed her that due to a previous injury, he was only able to work the service cart as he was unable to sit down for long periods of time. 27
[42] Following the restructure, the first priority was to train operators on pit skills, with emphasis on those employees who only had haul truck skills. At the time, the applicant was competent to operate a range of machinery including the service cart, dozers, graders, the water cart and shovel. In that regard, Ms Tough stated the applicant had worked on an excavator and grader as well as the service cart during 2011.
[43] Between January and April 2012, the applicant worked on both the grader and service cart without any restrictions. On 9 April 2012, the applicant was allocated grader work. Within a few hours, he informed his supervisor that he was suffering pain and proceeded to attend Singleton Hospital. Ms Tough stated the vehicle log showed the applicant had only operated the grader for 14 minutes.
[44] Ms Tough’s evidence dealt with the various RTW plans implemented in an attempt to provide the applicant with work within his restrictions. The applicant was offered the assistance of a dietician and access to a gymnasium to improve his general level of fitness.
[45] On 7 December 2012, the applicant was engaged on night shift. He was allocated rotating tasks with the grader so as to ensure he spent no more than one hour at a time on the grader. During the shift on 8 December 2012, the applicant complained to his supervisor that he was suffering pain in his legs. Accordingly, he was afforded alternative duties for the balance of that shift. On 9 December 2012, the applicant advised his supervisor that he would not be attending work and proposed to consult his treating doctor.
[46] Ms Tough subsequently provided a note concerning the applicant’s medical problems for Ms Richardson, his supervisor, Mr Justin Garrett and Mr Costello. 28 On 10 December 2012, the respondent received a WorkCover medical certificate, referred to in paragraph [23] above, from Dr Garkut which confirmed the applicant’s medical restrictions had deteriorated.
[47] A meeting with the applicant, his Union representative, Ms Richardson and herself was convened on 12 December 2012. During the course of that meeting, Ms Tough informed the applicant that the respondent was unable to accommodate his downgraded restrictions. The applicant was also advised that nine months had passed “without any upgrade.” 29 The applicant was also informed that he was to continue providing WorkCover medical certificates. The applicant subsequently remained off work on workers compensation from 12 December 2012 to 29 August 2013.
[48] Ms Tough stated the applicant had initially refused to attend the medical assessment to be performed by Dr Croker in October 2013.
[49] Ms Tough was subject to cross-examination on 2 July 2014.
[50] Ms Tough stated that within the Pit Services Team there was not a specific role of Service Cart Operator as contended by the Union. 30 She disagreed with the proposition that the 2010 restructure did not affect the role of Service Cart Operator.31 Ms Tough stated the objective of the 2010 restructure was to improve efficiency and ensure “that operators were multi-skilled... so if the machine breaks down or gets delayed from weather... they could be functionally employed....”32
[51] Ms Tough did not take issue with the fact that the applicant had been deemed fit to perform permanently modified duties involving the operation of the service cart and ancillary equipment relief. However, it was her evidence that the 2010 restructure abandoned the notion that one person could be allocated to principally operate the service cart. The applicant was an operator and he was unable to fulfil that role. Ms Tough stated the applicant’s prognosis was that there was a risk of re-aggravation of his personal injury. In that regard, she observed that the applicant commenced nine shifts on the service cart from 9 April 2012 and after spending less than two hours on the grader, he had aggravated his injury. 33
[52] Ms Tough explained that the applicant was required to up-skill to meet the skill requirements associated with the classification, Pit Services Operator. However, the re-aggravation of his personal injury associated with nerve damage following a surgical procedure more than ten years ago meant he could no longer fulfil the inherent requirements of his position as Pit Services Operator. He was only fit for permanently modified duties 34 and unsuitable to operate haul trucks and other ancillary equipment without restriction as required by the Pit Services Operator classification. Ms Tough also stated her role was to ensure that all plant and equipment operated efficiently 24 hours per day.35
[53] Ms Richardson is the respondent’s Health and Injury Management Specialist, a position she has held since December 2012. She has undertaken WorkCover approved training as a Return to Work Co-ordinator and an Advance Return to Work Co-ordinator.
[54] Ms Richardson is responsible for the preparation of RTW plans for injured employees. In preparing an RTW plan, Ms Richardson is required to be familiar with the role and duty of the relevant employee. In the applicant’s case, she was familiar with the requirements of the Pit Services Team and the equipment that an operator may be required to operate during his or her shift. Shortly stated, the RTW plan is prepared following discussion between the injured employee, the relevant manager or supervisor concerning the potential duties available consistent with the prevailing medical restrictions. The RTW plan is usually signed off by Ms Richardson, the injured employee, the supervisor and treating doctor. It was Ms Richardson’s experience that the treating doctor does not always sign the RTW plan. However, the validity of the proposed RTW plan was not affected.
[55] Ms Richardson’s dealings with the applicant commenced in April 2012. At that time, his personal injury had caused him to become unfit to perform his full pre-injury duties for a number of years.
[56] At the outset, Ms Richardson contended the applicant had filed an incorrect copy of RTW1 attached to his statement. Ms Richardson stated that in preparing an RTW plan, the respondent consulted with Dr Harden, an Occupational Physician. On 12 April 2012, Dr Harden sent Ms Richardson an email stating the applicant was “...unfit for any role requiring sustained sitting without significant periods involving active stretching breaks” and he was also “...not fit to work in an unrestricted role as an operator.” Shortly thereafter, Ms Richardson sent Dr Harden’s email to Ms Tough. Ms Richardson subsequently met with Ms Tough concerning Dr Harden’s prognosis.
[57] RTW2 was provided to the applicant on 23 April 2012. The applicant met with Dr Harden on 11 May 2012. Dr Harden subsequently told Ms Richardson that while the applicant’s symptoms may settle, this would not occur without the applicant addressing significant “life style changes” related to diet, exercise and weight control. 36
[58] On 11 May 2012, 37 Dr Harden wrote to Ms Richardson by email to advise that the applicant had been driving trucks on an hour on, hour off basis which had exacerbated his left thigh pain and required regular analgesia medication. Against that backdrop concerning his deteriorating condition, Dr Harden stated the applicant thought he could operate the service cart or perform roles with the Dragline support and Pump crews.
[59] On 16 May 2012, the applicant telephoned Ms Richardson to advise his personal injury had re-aggravated and he proposed to lodge a worker’s compensation claim. The following day, the applicant’s suitable duties were withdrawn on the grounds that his personal injury had been re-aggravated. On 21 May 2012, CMI sought details concerning the applicant’s non-work related medical certificates as it was disputing liability. CMI proposed to refer the applicant for an independent medical examination. Later that day, Ms Richardson met with Ms Tough to discuss the matter. Ms Tough informed Ms Richardson that she wanted to support the applicant and in that regard, she proposed the respondent would pay for him to engage a personal trainer and a dietician. The applicant subsequently utilised the offer of a personal trainer but not the dietician.
[60] The applicant provided WorkCover medical certificates dated 24 May, 7 and 18 June 2012 which certified him fit for suitable duties involving “service truck OK or other jobs with frequent movement & position changes.” 38 A management meeting was convened on 21 June 2012 involving Ms Tough, Mr Morgan and Ms Richardson amongst others to discuss suitable duties for the applicant.
[61] RTW3 was prepared and given to the applicant on 27 June 2012. Ms Richardson explained RTW3 to the applicant who was also asked to discuss the matter with his treating doctor. However, prior to RTW3’s commencement date, the applicant provided Ms Richardson with a further WorkCover medical certificate restricting him to, “...office duties - not (fit for) for driving heavy vehicles until reviewed by pain specialist as analgesic requirements have increased.” 39 Accordingly, RTW3 was not implemented.
[62] Further WorkCover medical certificates provided by the applicant on 20 and 25 July 2012 stated he was “suitable for operating service cart and can relieve auxiliary machines for short periods of time up to one hour.” 40 On or about 25 July 2012, RTW4 was provided to Dr Garkut. However, Dr Garkut crossed out the words “operating haul trucks”. Accordingly, RTW4 did not proceed on the grounds that further medical opinion was required following Dr Garkut’s concerns with the applicant undertaking haul truck work. The applicant was also scheduled to commence annual leave from 29 July 2012.
[63] Ms Richardson met with Ms Tough on 26 July 2012 to discuss Dr Garkut’s concerns regarding RTW4. It was agreed that Ms Richardson and the applicant should attend a medical case conference with Dr Garkut on 13 August 2012 for the purpose of the respondent obtaining an understanding of the applicant’s condition. As a result of the case conference, Dr Garkut agreed that as part of RTW4, the applicant could operate haul trucks for up to one hour and then have a break. Dr Garkut also advised Ms Richardson that he considered it unlikely that the applicant’s restrictions would be upgraded. Following the case conference, Dr Garkut issued a revised WorkCover medical certificate certifying that the applicant’s fitness was “suitable for operating service cart and can relieve auxiliary machinery for short periods of up to an hour” and, “can relieve haul trucks for up to an hour, but must be able to stop and walk around when needed during that hour.”
[64] During the applicant’s shift on 24 August 2012, he approached Ms Richardson concerning pain symptoms and was subsequently advised to see his treating doctor which he agreed to do. The following day, the applicant contacted Ms Richardson to advise Dr Garkut had confirmed his restrictions remained unaltered. Dr Garkut also advised the applicant to take his medication as prescribed.
[65] Ms Richardson met with the applicant on 19 September 2012 to review RTW5 which provided him with suitable duties regarding operating the service cart, auxiliary machinery hot-seating for up to an hour and also to operate haul trucks for up to an hour. During the course of that meeting, the applicant advised he was reluctant to accept a recommendation of his pain specialist, Dr Russo, that he undergo a series of injections as such medication had failed to assist him some ten years ago when he first encountered his personal injury.
[66] Ms Richardson received a further WorkCover medical certificate on 12 November 2012 which did not alter the applicant’s restrictions. A WorkCover medical certificate 41 issued on 12 December 2012 downgraded the applicant’s restrictions to “relieving auxiliary machinery for up to one hour per shift.”42 Ms Richardson also conferred with Ms Tough, Mr Costello, Mr Robbins, CFMEU delegate and the applicant on 12 December 2012 to advise that suitable duties were being withdrawn given his lack of progress in returning to unrestricted duties.
[67] In response to a request from the applicant, Ms Richardson met with Mr Costello, Ms Tough and Ms Clive on 15 January 2013 where it was agreed the applicant’s duties would remain withdrawn until the aggravation of his personal injury had ceased. The applicant subsequently remained off work. On 16 August 2013, CMI advised the applicant that worker compensation benefits would cease on 29 August 2013. During the course of a meeting convened on 26 August 2013, Mr Costello advised the applicant and Mr Robbins that given CMI had finalised his claim, the respondent required him to undertake an independent medical assessment to determine “his ability to return to his duties as an operator in Pit Services.” 43
[68] Dr Garkut provided Ms Richardson with a further WorkCover medical certificate on 27 August 2014 stating the applicant was fit for pre-injury duties, those duties being the operation of the service cart for the majority of the shift and relieving auxiliary machinery. Ms Richardson stated the duties identified by Dr Garkut were not the applicant’s pre-injury duties as a Pit Services Operator. 44 In the interim, Mr Clive proceeded to arrange an independent medical assessment with Dr Croker on 14 October 2013. However, the applicant contacted Ms Tough on 12 September 2013 and stated the Union had advised him not to attend the appointment scheduled with Dr Croker.
[69] During a meeting with Mr Costello, Mr Williams and the applicant that she convened on 24 September 2013, Ms Richardson stated the applicant was informed the medical assessment was not negotiable. The applicant later agreed to comply with the respondent’s request to see Dr Croker.
[70] In a report received on 25 October 2013, Dr Croker determined the applicant was not fit for an unrestricted multi-skilled operator role and was fit for permanently modified duties. 45 The applicant, together with an official for the CFMEU, Mr Endacott, met with Mr Costello and a human resources representative, Ms Phoebe Burgess on 8 November 2013 to discuss Dr Croker’s diagnosis. The applicant was informed a Pit Services Operator was required to perform a range of duties. For his part, the applicant considered he was fit to work in the Dragline and Pump crews or Shovel Operations. In response, Mr Costello informed the applicant that those duties would be assessed to establish whether they were consistent within his current restrictions. It was subsequently determined that the applicant’s restrictions, compounded by his literacy skills, meant that there were no suitable alternative roles available to him.
[71] In relation to the applicant’s statement filed in these proceedings, Ms Richardson took issue with a number of statements made therein, including the applicant’s contention that the work assigned to him was inconsistent with his RTW plans, the contention that Dr Harden considered the best role for the applicant was that of “service cart operator and only service cart operator”, 46 and the work given to the applicant was inconsistent with the type of work nominated by Dr Garkut in his various discussions with her.
[72] In the event the Commission ordered the applicant’s reinstatement, it was Ms Richardson’s evidence that he could re-injure himself at work and given his circumstances, there was a risk his personal injury could be re-aggravated at any time. 47 The applicant had been assessed as being fit for permanently modified duties which in effect means he cannot perform the full range of duties required within the role of a Pit Services Operator.
[73] Ms Richardson was subject to cross-examination on 28 May and 4 June 2014. Ms Richardson was cross-examined on elements of the respondent’s Injury Management and Return to Work Procedure Policy (the Policy). In that regard, she confirmed the Policy applied to both work related and non-work related injuries. 48 In preparing a RTW plan for the applicant, Ms Richardson confirmed she had communicated with both the applicant and his treating doctor, Dr Garkut.49
[74] It was Ms Richardson’s evidence that the RTW plan took account of the restrictions applied by an employee’s treating doctor and any suitable duties identified. 50 The plan also involved input from supervisors.
[75] With regard to RTW3, which included a new return to work goal being the operation of haul trucks, Ms Richardson stated this task was included on the advice of Mr Costello or Ms Tough on the grounds that haul truck operation was part of the applicant’s pre-injury role of Pit Services Operator. 51 She further confirmed that her role was to develop an RTW plan to assist an employee to return to pre-injury duties.52 Ms Richardson agreed the applicant’s treating doctor had not suggested that he operate haul trucks.53 The respondent decided to withdraw suitable duties in December 2012 following consideration of the applicant’s progress to date and a determination that no progress had been made since the commencement of the first RTW plan in April 2012.
[76] Mr Costello is the Mine Manager and commenced employment with the respondent in March 2010.
[77] Mr Costello described the applicant as “an injured worker, unfit to perform his pre-injury duties for a number of years.” 54 He confirmed the 2010 restructure triggered the establishment of the Pit Services Team of multi-skilled operators.
[78] Mr Costello’s evidence described the various dealings he had with the applicant following his lodgement of a workers compensation claim in May 2012 through to his dismissal in January 2014. Mr Costello also described his involvement in the various meetings convened within the management team and the applicant and his Union representatives concerning his inability to perform the role of Pit Services Operator as a result of a pre-existing injury and the risk of re-aggravation. 55
[79] It was Mr Costello’s evidence that the decision to dismiss the applicant was not made lightly and was taken against the backdrop of an independent medical assessment concerning his fitness to perform the role of Pit Services Operator.
[80] As an alternative to his dismissal, the respondent had considered other roles for the applicant. However, a stores position was considered inappropriate by both the applicant and the respondent on the grounds of his literacy skills. A position with the pump crew was also deemed unsuitable as the role required a lot of lifting and dogman work and required a reasonable level of literacy and numeracy skills.
[81] Insofar as reinstatement was concerned, Mr Costello contended the applicant would be at risk as he had only been certified for permanently modified duties. He conceded the applicant could have done more to assist his own circumstances in terms of diet and weight control. 56
[82] In cross-examination, Mr Costello acknowledged that the respondent was obliged to provide suitable duties to injured employees where available. 57 Mr Costello stated the various RTW plans and the prevailing medical opinion at the time showed the applicant’s medical restrictions were actually increasing, which made it difficult for the applicant to perform work on site.58
[83] Mr Costello understood the relevant medical advice was that the applicant could operate a service cart with some restrictions including the need to relieve on other equipment for short periods of time. 59 However, there was no separate role of service cart operator. Rather, it was a function within the multi-skilled pit services team.60
[84] Mr Costello stated he was concerned that the applicant could aggravate his personal illness, “I didn’t want to see him experience that and it’s a liability for the business.” 61
[85] On the applicant’s behalf, the Union submitted the Commission should find the dismissal was harsh, unjust and unreasonable. The applicant should be reinstated without loss of pay principally on the grounds that he was fit to perform the role of service cart operator, a position that he had performed since at least 2003.
[86] The service cart is required to operate 24 hours per day and given that the applicant is fit to perform that work, there was no valid reason to terminate his employment.
[87] The applicant is 57 years of age and has been employed by the respondent for 27 years. The respondent was, in part, responsible for the exacerbation of the applicant’s personal injury. Given his age, level of literacy and family commitments, dismissal is harsh, unjust and unreasonable. The applicant’s physical injuries are such that he will find it very difficult, perhaps impossible, to find equivalent remuneration either within or outside of the coal industry.
[88] The respondent submitted the applicant was part of the Pit Service Team which was established following a restructure in 2010 to improve operational efficiency. In cross-examination, the applicant had agreed with the proposition that “...an operator has multiple duties that they can be directed to perform and one of those duties is the operation of the service cart.” 62
[89] Moreover, Clause 10 of the Mount Thorley Warkworth Enterprise Agreement states, “The Company may direct employees to carry out any work that is within their skills, training, experience and knowledge subject to safety and statutory requirements.”
[90] Haul truck operation was a mandatory skill component of the Pit Services Operator classification. The operation of the service cart was just one of the many different duties the applicant could be called upon to perform.
[91] An independent medical assessment had determined the applicant was unable to perform the role of a multi-skilled operator with the Pit Services Team. Prior to terminating the applicant, the respondent had considered alternative positions. However, he was considered unsuitable for various reasons.
[92] The applicant’s termination was based on the fact that he could not perform the inherent requirements of his substantive position of Pit Services Operator. Accordingly, there was a valid reason for the applicant’s dismissal. Procedural fairness was applied.
[93] Section 385 of the Act provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
[95] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 63 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,64 and the validity is judged by reference to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has done.65
[96] The respondent’s position was that it had a valid reason for the applicant’s dismissal based on the grounds that he was unfit to perform his pre-injury role of Pit Services Operator and other alternative positions identified as potentially suitable within the pump crew and stores area.
[97] I have considered the various positions the applicant has undertaken with the respondent both before and after the work related exacerbation of his personal injury. In that regard, I find that the substantive position of the applicant at the time of his dismissal was that of Pit Services Operator, a position he himself acknowledged that he had occupied since 2010.
[98] The decision of the Full Bench in Boag and Son Brewing Pty Ltd v Allan John Button 66 (Boag) is authority for the proposition that when an employer is assessing whether a particular injured worker can perform the inherent requirements of the job, the employer is not required to create a position that an injured employee is capable of performing. Boag concerned an employee who was unable to lift any weight over 5kg as a result of a personal health issue. Shortly after initial medical advice, the employee’s surgeon determined the lifting restriction would be indefinite. The Full Bench stated:
“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
...
[30] In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.”
[99] The decision in Boag requires the Commission to give consideration to the following matters:
[100] On the evidence before the Commission, the applicant’s substantive position at the time of his dismissal was that of Pit Services Operator, a multi-skilled classification introduced in 2010.
[101] The position of Pit Services Operator was a multi-skilled classification where, in addition to the mandatory core skill of haul truck driving, employees were required to be competent to operate a range of principally heavy equipment required to produce coal.
[102] The rehabilitation envisaged by the RTW plans implemented to support the applicant was not realised. An independent medical assessment undertaken shortly before the applicant’s dismissal determined he was unable to perform the inherent requirements of the position classification, Pit Services Operator.
[103] At the time of his dismissal, the applicant did not have the capacity to perform the duties he was employed to undertake as Pit Services Operator and on the prevailing independent medical evidence, there was no prospect of him being able to perform those duties at all.
[104] I find there was a valid reason for the applicant’s dismissal.
[105] I find that the applicant was notified of the reason for his dismissal.
[106] On the material before the Commission, I am satisfied the respondent afforded the applicant an opportunity to respond to the reasons for his termination.
[107] The evidence before the Commission was that the applicant was afforded an opportunity to have a Union support person present at all meetings conducted by the respondent concerning his dismissal and there is no evidence that during the course of those meetings, he was prevented from accessing their advice and assistance.
[108] This matter was not related to an allegation concerning the applicant’s unsatisfactory performance.
[109] The respondent is a large employer and the evidence before the Commission was that it engaged dedicated human resource management specialists in effecting the dismissal.
[110] I do not consider that there are any other relevant matters to be taken into account. In accordance with s.381 (2) of the Act, I am further satisfied that each party has been accorded a “fair go all round”.
[111] In all of the circumstances I find that the termination of the applicant’s employment was not harsh, unjust or unreasonable within the meaning of s.387 of the Act. The application is dismissed. An order to this effect will be issued concurrently with this decision.
COMMISSIONER
Appearances:
For the applicant, Mr K Endacott, Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District.
For the respondent, Mr A Dearden, Lawyer, Hall & Wilcox.
1 Applicant’s Witness Statement at para 14
2 Ibid at para 20
3 Ibid at para 23
4 Ibid at para 29
5 Ibid at para 31
6 Ibid at para 38
7 Ibid at para 44
8 Ibid at para 48
9 Ibid at para 57
10 Ibid at para 65
11 Ibid at para 69
12 Applicant’s Witness Statement at para 33
13 Ibid at para 34
14 Ibid at para 43
15 Ibid at para 43
16 Transcript at PN376
17 Ibid at PN390
18 Ibid at PN402-408
19 Ibid at PN418-420
20 Ibid at PN455
21 Ibid at PN519-520
22 Ibid at PN1683
23 Ibid at PN1711-1713
24 Ibid at PN1734-1736
25 Ibid at PN1807
26 Ms Vanessa Tough’s Witness Statement at para 14 - attachment VMT2
27 Ibid at para 18
28 Ibid - attachment VMT-21
29 Ibid at para 54
30 Transcript at PN1940
31 Ibid at PN2006
32 Ibid at PN2009
33 Ibid at PN2046
34 Ibid at PN2060-2065
35 Ibid at PN2462
36 Ms Richardson’s Witness Statement at para 17
37 Ibid - attachment CLR-4
38 Ibid at para 24
39 Ibid at para 27
40 Ibid at para 29
41 Ibid - attachment CLR-12
42 Ibid - attachment CLR-13
43 Ibid at para 47
44 Ibid at para 48
45 Ibid - attachment CLR-17
46 Ibid at para 59
47 Ibid at para 69
48 Transcript at PN658
49 Ibid at PN709-712 and 746
50 Ibid at PN764-766
51 Ibid at PN1059-1063
52 Ibid at PN1086
53 Ibid at PN1107
54 Mr Costello’s Witness Statement at para 7
55 Ibid at paras 25-27
56 Ibid at para 45
57 Transcript at PN2565
58 Ibid at PN2568-2571
59 Ibid at PN2591
60 Ibid at PN2617
61 Ibid at PN2677
62 Ibid at PN478-479
63 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
64 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C
65 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J
Printed by authority of the Commonwealth Government Printer
<Price code C, PR561052>