Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 1080 and Order [PR561095] of Commissioner Stanton at Newcastle on 18 February 2015 in matter number U2014/256.

DECISION OF SENIOR DEPUTY PRESIDENT HAMBERGER AND DEPUTY PRESIDENT GOSTENCNIK

[1] Mr Dennis Sipple (the appellant) was dismissed from his employment with Coal & Allied Mining Services Pty Ltd trading as Mount Thorley Warkworth Operations (the respondent) on 23 January 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] On 18 February 2015, Commissioner Stanton issued a decision in relation to the appellant's application. 1 The Commissioner concluded that the appellant's dismissal was not harsh, unjust or unreasonable, and dismissed the application.

[3] On 24 April 2015 a Full Bench granted permission to appeal the Commissioner's decision. That appeal is the matter before us.

Background

[4] The Commissioner referred to the decision of the Full Bench in Boag 2 as 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 the injured employee is capable of performing. The Commissioner gave consideration to the following three matters: the applicant’s substantive position, the inherent requirements of the position and whether the applicant was able to perform the inherent requirements of the position. The Commissioner made the following findings:

● The applicant’s substantive position at the time of his dismissal was that of Pit Services Operator, a multi-skilled classification introduced in 2010.

● 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.

● 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. 3

[5] On the basis of these findings, the Commissioner concluded there was a valid reason for the appellant's dismissal. 4 The Commissioner then considered and made findings in relation to the matters in s.387 (b) to (g).5 As to s.387(h), the Commissioner did not consider that there were any other relevant matters to be taken into account.6 The Commissioner concluded that the termination of the applicant's employment was not harsh, unjust or unreasonable.7

[6] The Full Bench granted permission to appeal on the basis that the Commissioner had failed to properly consider a number of matters put forward by the appellant that were relevant to the consideration of whether his dismissal was harsh, unjust or unreasonable. 8

[7] These matters (the additional matters) were summarised by the Full Bench as follows:

● The appellant is 57 years of age;

● he had been employed by the respondent for 27 years;

● he was fit to drive a service cart;

● he had driven a service cart since 2003;

● a service cart is always in operation at the mine;

● the respondent was responsible for the exacerbation of his personal injury;

● his injury meant that he would find it difficult to find employment;

● he had a low level of literacy; and

● he had family commitments. 9

[8] The Full Bench was satisfied that the appellant had established an arguable case of error and considered that in circumstances where such an error had been found, it raised issues of importance and general application going to the proper approach to be taken in applying s.387 (h) of the Act. This was the basis on which the Full Bench was satisfied that it would be in the public interest to grant permission to appeal. 10

Consideration of the appeal

[9] Despite an invitation to the contrary by the respondent, we accept the Full Bench’s findings that the additional matters are relevant to the consideration of whether the appellant’s dismissal was harsh, unjust or unreasonable, and that the Commissioner’s failure to properly consider them constituted an arguable case of error.

[10] The appellant does not press the argument that the Commissioner was in error in finding that the respondent had a valid reason for the dismissal. He contends that the additional matters go to harshness and are relevant matters for consideration under s.387 (h). He also submits that they go to the unreasonableness of the dismissal because of the respondent’s refusal to continue to accommodate his injuries by returning to the practice of allocating him to the role of service cart operator.

[11] It is appropriate to review the evidence concerning the additional matters.

The appellant’s age and length of service

[12] It is not in contention that the appellant was 57 when he was dismissed, nor that he had completed 27 years of service.

The appellant’s fitness to drive a service cart

[13] The appellant was assessed by an occupational physician, Dr David Croker, at the request of the respondent on 14 October 2013. Dr Croker was asked whether the appellant was fit either for ‘pre-injury duties’ i.e. returning to work in the role of a multi-skilled operator operating any machinery on which he was trained for any assigned duration, or alternatively for ‘permanently modified duties’ i.e. returning to work with a permanent restriction operating the service cart for the majority of the shift and undertaking relief auxiliary equipment operation for a small component of the shift. Dr Croker concluded that Mr Sipple was fit for ‘permanently modified duties’.

Whether the appellant had driven a service cart since 2003

[14] The evidence discloses that the appellant had developed a painful neuralgia of the thighs following an appendix operation in 2002. This meant he was unable to sit in one position for any extended period of time. It is not in contention that at least until late 2010, the appellant’s work was largely restricted to operating the service cart (which allowed regular movement of his legs), with only short periods of up to one hour being spent from time to time on alternative pit equipment. This was originally as a result of a recommendation of the respondent’s doctor and the then mine manager.

[15] In late 2010 the respondent restructured the mining team and created the position of Pit Services Operator. All operators were required to become multi-skilled so as to enable each operator to operate all types of equipment used in the production of coal. The restructure was in response to a review conducted by the respondent that had identified inefficiency and underutilisation of machinery assets.

[16] There is some conflict between the evidence of the appellant and that of Ms Tough about the extent to which the appellant worked on equipment other than the service cart in the months following the restructure (though it does appear that he worked on the excavator and grader in 2011 in addition to the service cart 11). However it is clear that in April 2012 the appellant was directed by the respondent to work on a grader, and that this led to him suffering acute pain. A series of return to work plans followed, apparently designed to enable the appellant eventually to undertake the full range of duties of a Pit Services Operator. However the appellant continued to be subject to medical restrictions limiting his work primarily to that of operating the service cart.

Whether a service cart is always in operation at the mine

[17] There was some conflict in the evidence about whether a service cart work was always in operation at the mine. During his oral evidence, the appellant indicated that there were three service carts in operation in December 2012. 12 During her cross-examination, the respondent’s health and injury management specialist, Ms Christine Richardson, indicated that, to her knowledge service cart operations are undertaken every day of the week, and that at the time of the hearing two people would ‘potentially’ be operating service carts. She added however that this would depend on a range of factors, including availability of equipment, weather conditions, workloads and work requirements.13

[18] During her cross-examination the respondent’s Pit Services Superintendent, Ms Tough, indicated that there were two service carts which the respondent planned on operating 24 hours a day seven days a week. 14 She agreed that, given a four panel roster, eight employees would be needed to cover one week. The appellant’s representative put to her:

‘And if there's two you need eight employees to operate it? --- That's correct.

Therefore if there's two operating you'd need two people, each shift, to operate that piece of equipment? --- I understand what you're saying but practically that's not how we plan our team. But if you look at planning numbers we plan on two employees of the 28 are planned around the service cart.

Two employees of the 28 are planned? --- Of the crew.

Yes, and if Mr Sipple, if this commission ordered Mr Sipple to return to work and said that it was unfair to dismiss him because he can operate the service cart, he can operate the service as he had been doing for what he alleges for 10 years, then the service cart is there to be operated, isn't it? --- The service cart is there to be operated.

Yes, so there would be a job that he could perform, that of the service cart operator, isn't there? --- There is not a specific role in the pit services team of a service cart operator and I'm not aware of anyone in my team that operates just the service cart.

Thank you. That wasn't the question I asked…. The question I asked was there’d be a job there for him to perform, wouldn't there? Physically a job for him to perform, at a service cart, if he was reinstated? --- And I disagree with you. There is not a job in my team that is just the service cart.

Well, there would be the work of service cart there to be performed, wouldn't it? --- Commissioner, there is multiple reasons why we don't have just a service cart operator in our team. We have plant operators. And if I use an example, service cart can be stood down for numerous reasons during a shift. For example, wet weather, the service carts don't operate. During noise, the service carts don't operate and they occur regularly throughout the shifts. If I reflect on year to date it really is a large percentage. Another example is if the service cart breaks down. Another example is conflicting priorities. So as Mr Endacott has I guess stated, yes, we plan on two of our people being service cart operators within the team. That's for our planning numbers. However we don't have a specific - any person in our team that specifically just operates the service cart because it is impractical….

… If Mr Sipple was back at work now… and was ordered to return he could be allocated to that work, couldn't he? --- He could be allocated to a service cart until an issue occurs and then there would be a problem.’ 15

[19] Mr Costello, the respondent’s mine manager, gave the following evidence in relation to the operation of service carts at the mine:

‘There’s not necessarily a service cart the entire shift. In general service carts do run during the shift but there will be breaks perhaps in the shift where service cart might not be in operation or other things might occur at a service cart might not be required. I think there's numerous examples…. I mean a service cart might break down. That happens, very routine. And then instead of taking somebody else out of another piece of machinery and putting them into a different service cart, normally you just ask somebody to go, drive a different piece of equipment. You know we do training so quite often we'll have half the crew stay in while the training is happening and the other half will run the essential equipment. Quite often service carts are parked up for those types of things, relieving another piece of equipment for crib. So giving somebody a break. So whoever is driving a service cart can help out there. You know if it's raining quite often the service carts aren't in operation because of road conditions. So typically we ask operators to go and get on the road equipment, dozers, graders. So there's quite a few different reasons why we might not have somebody sitting on a service cart for the entire shift. They do other things as well.’ 16

Whether the respondent was responsible for exacerbating the appellant’s injury

[20] The respondent appears to have acknowledged, when it wrote to the appellant in September 2012 requesting him to participate in an assessment by Dr Croker, that his injury had been aggravated by the return to work plans. 17

Whether the appellant’s injury would mean it would be difficult for him to find employment

[21] The only evidence on this point appears to be that one reason why the respondent did not consider that the appellant could be redeployed to a position with the pump crew was that the role required a lot of lifting. Although it seems to us that it may be inferred from the occupational assessment undertaken by Dr Crocker, to which earlier reference is made, the restrictions on the appellant’s capacity to work mean that he would have fewer employment options than other people who are not so restricted but are otherwise of the same age and experience and possessed of the same skills as the appellant.

The appellant’s low level of literacy

[22] The appellant’s poor literacy was a reason given by the respondent as to why he could not be redeployed into a stores position or dogman work. 18

The appellant’s family commitments

[23] In relation to the appellant’s family commitments, the appellant gave evidence that he gave a considerable amount of money to his daughter to support her and her family. Because she suffers from inter-cranium hypertension her husband had had to take some time off work to take care of her. One of her children has severe autism and is in a wheelchair. The appellant said that his daughter and her husband had had financial difficulties and he had helped them out.

Discussion

[24] As the appellant submits, a finding that there is a valid reason for dismissal will not lead inexorably to a finding that the dismissal is not unfair. As the Full bench in Boag said:

‘However, it is also well established that there may be a valid reason for dismissal but the dismissal may nevertheless be harsh, unjust or unreasonable. In this case the Senior Deputy President also noted that he would have concluded that Mr Button’s dismissal was harsh even if his inability to perform the inherent requirements of his position had constituted a valid reason for the for the dismissal:

“[57] Even had there been a valid reason for the dismissal, based on Mr Button’s inability to perform the inherent functions of his position, I would reach the same conclusion. To dismiss Mr Button after he had been satisfactorily working with his disabilities for the best part of a year, without there having been an intervening occurrence to otherwise warrant his dismissal, is harsh, unjust and unreasonable.”

In our view, the reason given for this conclusion, while clearly relevant to a consideration of whether the termination was harsh, unjust or unreasonable, is not, of itself, sufficient to justify the conclusion that the dismissal was harsh, unjust or unreasonable. Such a conclusion calls for a consideration of a broader range of circumstances with particular reference to the extent to which the continued employment of Mr Button would have constituted an unreasonable burden on Boags or other employees in the context of the consequences of the dismissal for Mr Button.’ 19

[25] The appellant submits that the additional matters fall within the ‘broader range of circumstances’ referred to by the Full bench in Boag.

[26] It is axiomatic that in making a judgement about whether a particular dismissal is harsh, unjust or unreasonable, the Commission is required to take into account all relevant factors and weigh them in the balance, depending on the circumstances of the particular case. 20

[27] In this case we agree with the Commissioner’s conclusion that there was a valid reason for the appellant’s dismissal. In particular, the appellant was unable to perform the inherent requirements of his position. That position was as a multi-skilled Pit Services Operator We also concur with the Commissioner’s findings as to the matters in s. 387 (b) to (g). The issue is whether the additional matters discussed above so outweigh these other matters as to render the dismissal nevertheless harsh, unjust or unreasonable.

[28] A dismissal almost invariably has adverse consequences for the employee dismissed. In Mr Sipple’s case, those consequences are likely to be somewhat greater than average because of his injury, his age and his poor literacy. His family commitments, while no doubt genuine, do not appear to be out of the ordinary. His length of service is relatively long, and is a factor that points to unfairness.

[29] We do not consider that the apparently temporary exacerbation of the appellant’s non work injury during the various return to work plans in 2012 should be seen as contributing to the unfairness of the dismissal. In the circumstances, it was reasonable for the respondent to see if the appellant could eventually perform the full range of duties involved in the Pit Services Operator role. The very object of a rehabilitation and return to work program is that modified duties are a temporary measure in order to assist in the return of an injured employee to unrestricted duties.

[30] Much of the appellant’s case rests on the fact that he could continue to be gainfully employed by the respondent operating the service cart – work that he has performed for many years. In circumstances such as those of the appellant, it might be said that his dismissal might have been unfair – even though he was unable to perform the inherent requirements of the position in which he was employed – if the respondent could have continued to employ him without this imposing ‘an unreasonable burden’ (in the words used in Boag.). However, that is not the case here.

[31] We are satisfied that the respondent introduced the multi-skilled ‘Pit Services Operator’ classification in 2010 because it had identified inefficiency and underutilisation of machinery assets. The types of inefficiency that might arise from an arrangement where employees are restricted primarily to the use of a single piece of equipment (such as the service cart) is clear from the evidence of Mr Carter and Ms Tough. We accept that – despite the appellant’s contention to the contrary – service carts are not in operation on a continuous basis. There are sound operational efficiency grounds why an employee who might otherwise be allocated to operating the service cart should also be able to be reallocated to operate another piece of equipment. The appellant’s medical restrictions significantly limit his capacity to operate other pieces of equipment and he is unable to fulfil the inherent requirements of the position of a multi-skilled Pit Services Operator. The respondent does not have a need for a service cart operator. This function has since 2010, been subsumed as part of the functions to be carried out by any of the multi-skilled Pit Services Operators.

[32] In these circumstances the appellant’s continued employment would have imposed an unreasonable burden on the employer. In our view the other matters discussed earlier do not weigh so heavily in favour of the appellant as to render the dismissal in the circumstances, harsh, unjust or unreasonable It follows that in our view the appellant’s dismissal was not harsh, unjust or unreasonable. In the result the Commissioner’s ultimate conclusion was in our view correct.

[33] The appeal is dismissed.

SENIOR DEPUTY PRESIDENT

DECISION OF COMMISSIONER RIORDAN

[34] Permission to appeal the Decision 21 and Order22 of Commissioner Stanton was granted by a Full Bench of this Commission23 on 24 April 2015.

[35] In his Decision Commissioner Stanton said:

‘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’.’ 24

[36] In relation to this finding the Full Bench concluded that Commissioner Stanton had failed to consider the following matters:

● The appellant is 57 years of age;

● he had been employed by the respondent for 27 years;

● he was fit to drive a service cart;

● he had driven a service cart since 2003;

● a service cart is always in operation at the mine;

● the respondent was responsible for the exacerbation of his personal injury;

● his injury meant that he would find it difficult to find employment;

● he had a low level of literacy; and

● he had family commitments.

[37] The Full Bench further concluded:

‘[18] We are of the view that the Commissioner did not properly consider the matters referred to at paragraphs [85]-[87] of the Decision. It is clear from the authorities that not every submission that is made has to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration. 25 We find that the matters at paragraphs [85]-[87] of the Decision were relevant to the consideration of whether the Appellant’s dismissal was harsh, unjust or unreasonable.

[19] We are not persuaded by the Respondent’s interpretation of paragraph [110] of the Decision. A reference to there not being any other relevant matters to be taken into account cannot be construed as being equivalent in meaning to a finding that specific matters raised in submissions have been considered and have been found not to be relevant. On its face, paragraph [110] of the Decision does not address or consider the submissions at paragraph [85]-[87] of the Decision.

[20] We are satisfied that the Appellant has established an arguable case of error in relation to the Decision. We consider that in circumstances where such an error has been found, it raises issues of importance and general application going to the proper approach to be taken in applying s.387(h) of the Act. We are satisfied that it would be in the public interest to grant permission to appeal.

[21] For the reasons outlined above, permission to appeal is granted.’ 26

[38] Following the decision of that Full Bench regarding permission to appeal the substantive appeal was allocated to this Full Bench.

[39] I have read the joint decision of Senior Deputy President Hamberger and Deputy President Gostencnik (the majority). The majority accepted the findings of the previous Full Bench that the additional matters referred to were relevant to the consideration of whether the termination of the Appellant’s employment was harsh unjust or unreasonable and whether a failure to consider those matters constituted an arguable case of error. The Full Bench reviewed the evidence. I am unable to agree with the review of the evidence undertaken by the majority or its conclusions.

[40] On the facts of this application, having particular regard to the matters identified by the Full Bench as relevant factors arising under section 387(h) of the Fair Work Act 2009 (the Act), the majority, in my view, have failed to adequately consider and give appropriate weight to the evidence before Commissioner Stanton in relation to the issues summarised by the Full Bench which granted permission to appeal.

[41] The principles in House v. King 27 are set out below. In determining this application this Full Bench is obliged to consider these principles.

‘It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

(my emphasis)

[42] I have dealt with each of the matters identified by the permission to appeal Full Bench as not having been properly addressed by the Commissioner in an endeavour to demonstrate why each of them is a significant positive factor supporting a conclusion that the termination of Mr Sipple’s employment was harsh, unjust or unreasonable. Singularly and cumulatively, these issues amount to an overwhelming set of circumstances, which I am persuaded lead to an inevitable conclusion that the termination of Mr Sipple’s employment was harsh, unjust or unreasonable. I have also dealt with the additional issue of Mr Sipple’s reliance, to his detriment, on the words spoken by Ms Tough, regarding the availability of future work.

Mr Sipple is 57 years of age

[43] Based on my knowledge of the prevailing circumstances concerning employment which have existed in the coal industry in NSW for some time, Mr Sipple is highly unlikely to find secure employment in the future. The Hunter Valley of NSW is suffering an economic downturn. At 57 years of age Mr Sipple is unlikely to be competitive against the multitude of skilled, healthy and available younger workers.

Mr Sipple had been employed by the respondent for 27 years

[44] Mr Sipple has been a hardworking and loyal employee for 27 years, ie, the overwhelming majority of his employment life. The majority at paragraph [28] of its decision state that ‘His length of service is relatively long, and is a factor that points to unfairness.’ His employment is not relatively long. It is very long. It points to heightened unfairness.

Mr Sipple was fit to drive a service cart

[45] On the evidence it is clear that Mr Sipple is fit to drive a service cart. It is the job he was performing previously. It is the job that he is medically certified fit to perform. That fact was not challenged by the Respondent.

Mr Sipple had driven a service cart since 2003

[46] It is also undisputed that Mr Sipple has driven a service cart since 2003. He has always filled in, on a temporary basis, on the other equipment ie, during crib breaks, etc.. It is the evidence, that even after the restructuring in 2010, Mr Sipple continued to work ‘exclusively’ on the service cart without complaint from either management or his work colleagues in relation to inefficiency or favouritism. That work is still available.

‘Yes, and if Mr Sipple, if this commission ordered Mr Sipple to return to work and said that it was unfair to dismiss him because he can operate the service cart, he can operate the service as he had been doing for what he alleges for 10 years, then the service cart is there to be operated, isn’t it?--- The service cart is there to be operated.’ 28

A service cart is always in operation at the mine

[47] The evidence indicates that either two or three service carts operate at the Mt Thorley mine on a 24/7 basis. They are ‘on the job’ for the entire shift. As identified in the majority decisions Ms Tough said that ‘the service cart is there to be operated.’ Ms Tough and Mr Costello made a point that the service cart may not operate during periods of wet weather or high noise. My experience in the coal industry informs me that in those particular circumstances, the service cart is not the only machinery to stop working. Logically, a service cart would be a “low noise” culprit compared to an excavator, grader or fully laden coal truck. To suggest otherwise is nonsense. In relation to wet weather, apart from the very occasional severe storm, the Hunter Valley has experienced drought conditions over the last 10 years. Mr Costello said that the service cart would not operate ‘quite often when it was raining.’ He failed to identify how often it rained at Mr Thorley or what he meant by quite often.

The respondent was responsible for the exacerbation of his personal injury

[48] The Respondent has admitted that it was responsible for the exacerbation of Mr Sipple’s injury. Ms Tough directed Mr Sipple to work long shifts and on consecutive days on equipment that she knew would be detrimental to his health. It was if Ms Tough was stretching the elastic band of Mr Sipple’s fitness to find the point beyond elasticity. Ms Tough succeeded in finding that point and her directions have resulted in long-term adverse consequences for Mr Sipple. The respondent is responsible for the management decisions made by Ms Tough which resulted in this adverse health outcome for Mr Sipple.

Mr Sipple’s injury meant that he would find it difficult to find employment

[49] I agree with the comments of the majority in this regard. I have already indicated that it is my conclusion that Mr Sipple would be at a severe disadvantage when seeking alternative employment compared to candidates that are fully fit and possess the same skills and competencies. I would be amazed if any employer, given a choice of candidates, would take the risk in employing Mr Sipple with his medical history.

Mr Sipple had a low level of literacy

[50] To say that Mr Sipple has a low level of literacy is an understatement. Put simply, Mr Sipple cannot read or write. This disability makes it impossible for Mr Sipple to pick up new skills and competencies through off the job training via remote learning or by attending a TAFE College or Skills Centre. It is highly unlikely that any employer would hire Mr Sipple in 2015 with his current literacy level.

Mr Sipple had family commitments

[51] Mr Sipple’s family commitments are tragic. His daughter suffers from hypertension and his granddaughter has severe autism. If these family circumstances are not “out of the ordinary” then the majority of Australian families are all suffering tragic circumstances on a daily basis. The majority’s conclusion that such circumstances are not “out of the ordinary” is extraordinary in the circumstances and, in my opinion, plainly wrong. In 2012, the Australian Bureau of Statistics identified that 0.5% of the Australia’s population had autism. I have taken notice of the publicly available research regarding the financial effects of an autistic child on a family. Every learned article that I have read identifies a ‘significant financial strain’ on families 29. Like every loving grandparent, Mr Sipple has placed himself in a precarious but manageable financial position, whilst he maintained his employment, to provide a better life for his granddaughter. I vehemently disagree with the majority on this issue. Mr Sipple’s family commitments are devastatingly different from those of ordinary, more fortunate, Australians.

Mr Sipple’s reliance, to his detriment, on the words spoken by Ms Tough regarding the availability of future work.

[52] Mr Costello stated that the Pit Service Operators needed to be multi-skilled, ie, be able to operate three different types of machinery. That is the respondent’s present preference. Mr Sipple possesses those competencies and that capacity. Neither Mr Costello nor Ms Tough provided any evidence of Mr Sipple sitting around waiting for the service cart to be fixed. Mr Costello went further to indicate that;

‘The restructure was accepted by all MTW employees without any industrial disputation.’ 30

[53] At the point of the proposed restructure being outlined to employees, Mr Sipple raised his medical restrictions with Ms Tough and his capacity to work on the service cart. Ms Tough gave a commitment to Mr Sipple to up-skill him whilst taking into account his restrictions. Ms Tough’s sworn statement says:

‘I explained to Mr Sipple that we needed Pit Services Operators to be multiskilled, and that he would need to be upskilled, but that we would do so taking into account any personal injury restrictions.’ 31

(my emphasis)

[54] The Commissioner did not take into account the factors I have outlined or the evidence concerning the commitment from Ms Tough. The Act requires that there be ‘a fair go all round.’ Mr Sipple cannot have been the recipient of a fair go, when he acted in good faith on the assurance of the respondent, only to have that very manger renege on the commitments that she gave.

[55] There is no evidence that Mr Sipple’s work arrangements gave rise to any inefficiency or created an unreasonable burden on the respondent. There is no evidence from any disgruntled employees suggesting that they have a preference to drive the service cart over other equipment. There is no petition from employees demanding time on the service cart. Indeed, any such request would be surprising since the service cart is typically a dirty and demanding role. The operator is continually getting in and out of the vehicle in all types of weather conditions, rather than sitting in the air conditioned comfort of a cab, out of the heat, cold, wind and rain. The respondent’s argument is a fallacy. On the facts available before Commissioner Stanton it would be impossible for Mr Sipple’s restrictions to be considered an issue that would need to be ‘worked around’ during the restructuring process and then become ‘an unreasonable burden’ a few months later. I am satisfied that the conduct of the respondent towards Mr Sipple in this regard has been deceptive and unfair.

[56] On any consideration of the evidence and the issues identified by the permission to appeal Full Bench, all of the identified factors demonstrate that if Mr Sipple is not reinstated he will never work again. This means that Mr Sipple will lose his house, face financial ruin and will be unable to assist his daughter financially in relation to the provision of care and medical assistance of his autistic grandchild.

[57] The majority have referred to the Full Bench decision in J Boag and Son Brewing Pty Ltd v Allan John Button 32 and the concept of “unreasonable burden”. For the sake of context, I reproduce the appropriate sections of that decision;

‘[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. 33 An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event.34 Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job.35 But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.36

[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 an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.

[31] However, it is also well established that there may be a valid reason for dismissal but the dismissal may nevertheless be harsh, unjust or unreasonable. 37 In this case the Senior Deputy President also noted that he would have concluded that Mr Button’s dismissal was harsh even if his inability to perform the inherent requirements of his position had constituted a valid reason for the for the dismissal:

“[57] Even had there been a valid reason for the dismissal, based on Mr Button’s inability to perform the inherent functions of his position, I would reach the same conclusion. To dismiss Mr Button after he had been satisfactorily working with his disabilities for the best part of a year, without there having been an intervening occurrence to otherwise warrant his dismissal, is harsh, unjust and unreasonable.”

[32] In our view, the reason given for this conclusion, while clearly relevant to a consideration of whether the termination was harsh, unjust or unreasonable, is not, of itself, sufficient to justify the conclusion that the dismissal was harsh, unjust or unreasonable. Such a conclusion calls for a consideration of a broader range of circumstances with particular reference to the extent to which the continued employment of Mr Button would have constituted an unreasonable burden on Boags or other employees in the context of the consequences of the dismissal for Mr Button.’

[58] Boags is distinguishable from the facts in this application. In Boags, Mr Button had medical restrictions imposed on his substantive position due to his deteriorating medical condition. That is not the scenario here. Mr Sipple had medical restrictions, due to an earlier personal injury, but can perform all of the functions of a service cart operator. It was only after the Company restructured his role that his medical restrictions become an issue. And, I repeat, Mr Sipple raised his restrictions at the time of the restructuring negotiations and was assured that they would not be a problem. Mr Sipple’s restrictions did not result in him being offered ‘light duties’ or shorter hours.

[59] The concept of ‘unreasonable burden’ in Boags related to the significant medical restrictions that were imposed by the worker’s medical condition. These were:

● ‘Avoid kneeling
● Avoid squatting
● No lifting above 5kg
● Avoid lifting from floor level
● No running or jumping’

[60] In that case the restrictions required constant assistance from the applicant’s work colleagues. This assistance caused significant disruption and increased workload to other members of his work team. There is no evidence of any disruption or increased workload to Mr Sipple’s work colleagues. There is no evidence that Mr Sipple’s work colleagues would not welcome his specialisation in the ‘worst job’ in the group.

[61] It is relevant to look at the term ‘unreasonable burden’. The Collins English Dictionary defines ‘unreasonable’ to mean – ‘immoderate, excessive’ and ‘burden’ to mean – ‘Something that is carried, load, oppressive, difficult to bear.’

[62] The Concise Oxford Dictionary defines ‘Unreasonable’ to mean – ‘1) not guided by or based on good sense 2) beyond the limits of acceptability’ and ‘burden’ to mean – ‘1) a heavy load 2) a cause of hardship, worry or grief’.

[63] Having considered these definitions of the phrase ‘unreasonable burden’, it is difficult to see how Mr Sipple driving a service cart full time and providing appropriate relief on other equipment could in any way be considered to an excessive, unacceptable or oppressive load (or any load at all) that causes hardship to the respondent.

[64] I have concluded that, on any consideration of the facts surrounding this application, the conclusion of the majority of this Full Bench is not supported by the evidence and is manifestly unjust.

[65] I would allow the appeal and set aside the decision of Commissioner Stanton.

COMMISSIONER

Appearances:

Mr A Slevin, Counsel – for the Appellant

Mr J Darams, Counsel – for Coal & Allied Mining Services Pty Ltd trading as Mount Thorley Warkworth Operations

Hearing details:

Sydney

2015

26 June

 1   [2015] FWC 1080.

 2   Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022.

 3   [2015] FWC 1080 at [100] – [103]

 4   Ibid at [104]

 5   Ibid at [105] – [109]

 6   Ibid at [110]

 7   Ibid at [111]

 8   Paragraph 18

 9   Paragraph 8

 10   Ibid at [20]

 11   Ms Tough’s statement, paragraph 22

 12   PN279

 13   PN826

 14   PN1929

 15   PN1936-1944

 16   PN2615

 17   Applicant’s witness statement, paragraph 33

 18   Paragraph 80

 19   At paragraphs [31] and [32]

 20   See the observation of Buchanan J, with which Allsop J and Siopsis J agree, at [23] in Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35

 21   [2015] FWC 1080

 22   PR561095

 23   [2015] FWCFB 2586

 24   [2015] FWC 1080 para 110

 25   Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 226 IR 214 at [55]-[57]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [47]; Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at [37] and [40].

 26   [2015] FWCFB 2586

 27   (1936) 55 CLR 499, at pp 504-505

 28   PN1939 – Transcript 2 July 2014

 29   www.autismbedfordshire.net

 30   Exhibit 10 – Witness statement Morgan Costello

 31   Exhibit 9 – Witness statement Vanessa Tough

 32  [2010] FWAFB 4022

 33   Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.

 34   Ermilov v Qantas Flight Catering Pty Ltd (PR956925, Giudice J, Hamberger SDP and Raffaelli C, 4 April 2005) at [34].

 35   Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations

Commission [2001] FCA 1665 (Gray, Branson and Kenny JJ) at [14].

 36   See, for example, Stergioti v Toyota Motor Corporation Australia Limited (PR953320, Duncan SDP, 17 November 2004)

 37   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

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