1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stephen Born
v
Aurizon
(U2013/9801)
COMMISSIONER SPENCER BRISBANE, 28 FEBRUARY 2014
Application for relief from unfair dismissal.
Introduction
[1] This determination relates to an application made by Mr Stephen Born (the Applicant)
pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on
the grounds that the termination of his employment from Aurizon Holdings Limited T/A
Aurizon (the Respondent/the Employer) was harsh, unjust and or unreasonable.
[2] The matter was conciliated before a Fair Work Commission (the Commission)
Conciliator, however no settlement was achieved.
[3] A Mention was held before the Commission the matter was not able to be resolved.
Directions were set for the filing of submissions and evidence in relation to the application for
relief from unfair dismissal. The Hearing was held in Rockhampton with final submissions
occurring at a later listing.
[4] While not all of the evidence and submissions in this matter are referred to in this
decision all such material has been considered.
Background
[5] The Applicant was dismissed from his employment with the Respondent on 7 May
2013. The Applicant had been employed with the Respondent for 34 years and was, at the
time of dismissal, a Locomotive Driver Class II.
[6] At all relevant times the QR National Traincrew Enterprise Agreement 2010 (the
Agreement) covered and applied to the Applicant, in respect of his employment as a
Locomotive Driver Class II.
[7] Whilst performing his duties, on 10 October 2011, the Applicant suffered a stroke or
seizure. An effect of this medical incident was that the Applicant experienced a sudden loss of
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E AUSTRALIA FairWork Commission
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speech fluency. The Applicant subsequently underwent a number of surgeries. The Applicant
has been unable to return to work as a Locomotive Driver Class II since this time.
[8] On 23 April 2013, Ms Catherine Baxter, Vice President Service Delivery Coal, Coal
North, sent the Applicant a show caused letter which stated, in part:
“I am writing regarding your on-going absence from the workplace due to a medical
condition that has resulted in you being unable to perform the inherent requirements
of your substantive duties as a Locomotive Driver II.
I note that:
1. On November 2 2012, Dr Keith Adams reviewed all the medical information
and provided a detailed report detailing your restrictions.
2. On 9 November 2012 the management of your fitness for duty under the
Health Management Administration policy and the job search process under
section 3.9.7 of the policy was outlined to you.
3. The job search process was implemented for a period of 4 months for roles
in the Mackay and Rockhampton areas as per your request, including roles
within the Coal group and other business groups.
4. On 14 December 2012 you attended a meeting where an update of the
progress of the job search process was provided. You were also advised that if
you required any assistance with your job application and processed their after
to contact Chris Allen or Rebecca Holmes.
5. On 8 January 2013 you were advised the job search period was extended up
to 22 March 2013 as you were still waiting on feedback from recruitment
regarding the status of your applications.
6. You have been on personal leave without pay since 5 October 2012.
To date the job search has failed to identify a suitable role.
Medical reports from your doctor and a review by our Chief Medical Officer have
determined that you are permanently restricted from performing the role of
Locomotive Driver II on an ongoing basis.
Currently, I understand you are seeking to have your medical diagnosis reviewed. In
the present circumstances, and based on the information available to use, it is unlikely
that you will be able to perform your normal duties within a reasonable timeframe.
That being the case, Aurizon is considering terminating your employment in
accordance with Aurizon’s Health Management policy.
Before making my decision, I am providing you with 5 business days to put to me in
writing any explanations or circumstances you consider I should take into account
when making my decision...”i
[9] On 24 April 2013 the Applicant requested that the Respondent refrain from proceeding
with the show cause process until after the Applicant had had the opportunity to consult a
further specialist regarding his medical condition.ii The Applicant stated that he had an
appointment on 16 July 2013 and was on the waiting list for an earlier appointment, but that it
was unlikely he would receive an earlier appointment. The Respondent declined to grant the
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Applicant additional time to seek the advice of the further specialist and confirmed that a
response was expected in relation to the show cause letter, within 5 business days.
[10] On Friday 26 April 2013 the Applicant responded to the show cause letter. The
Applicant responded, extracted in part, as follows:
“As far as I know I am the only employee to be dismissed for the reason because most
people start on medication then they are alright to go back to work you wonder why
there is no moral at work because you have an employee eg. Me that has worked for
your company for 34 years had 1500 hours sick pay owing before his operation who’s
(sic) record is very good so you know that he does his best at what he does and goes to
work all of the time and you won’t give him a chance at a new job such as an
apprenticeship or working in the wagon shed or somewhere appropriate in your
company this is why the moral in (sic) not very high as you are showing no loyalty to
your employees because it seems like I have worked for your company for 34 years
and have been shown no loyalty all it seems like you want to dismiss me. I also have
over 18 months left with QSuper insurances payments that I can’t use if you dismiss
me.”iii (errors in original)
[11] On 3 May 2013 the Applicant was terminated by way of the notice of termination
issued by Ms Baxter. The notice of termination stated, in part, as follows:
“Your response to the show cause letter has been given serious consideration. However,
Aurizon does not believe that you have provided further medical evidence to suggest
your ongoing restrictions would prevent you from performing your role of a
Locomotive Driver.
I have reviewed the report by Dr Adam, Aurizon’s Chief Medical Officer, dated 2
November 2012 which outlines your ongoing restrictions. In accordance with
Aurizon’s Health Management Administration process, when an employee is deemed
restricted and unable to perform their normal duties, alternative options are
considered such as placement within other suitable alternative roles. The job search
has failed to identify a suitable role based on your ongoing restrictions in which to
permanently place you.
Aurizon’s only option now is to progress the termination of your employment due to
your incapacity to perform your normal duties in accordance with Aurizon’s Health
Management Administration policy effective 3 May 2013.”iv
[12] The Applicant was paid a total of in excess of $100,000 in relation to his termination
entitlements. The Applicant’s average gross weekly wage, at the time of dismissal was
$2,271.37.
Relevant Provisions of the Legislation
[13] The substantive application has been made pursuant to s.394 of the Act. Section 394
provides as follows:
“394 Application for unfair dismissal remedy
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(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2:For application fees, see section 395.
Note 3:Part 6 1 may prevent an application being made under this Part in relation to a
dismissal if an application or complaint has been made in relation to the dismissal
other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[14] It is not in dispute that the application was filed within the time prescribed by
s.394(2)(a).
[15] In determining whether the dismissal was harsh, unjust or unfair consideration must be
given to s.387 of the Act. Section 387 provides as follows:
“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
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(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.
Summary of the Applicant’s Evidence and Submissions
[16] The Applicant submitted that in November 2011 he was scheduled to have a brain
operation. A week after the operation the Applicant submitted that he ‘took a 45 second
turn.’v Subsequently the Applicant was placed on Dilantin medication and received two
further operations.
[17] Following this the Applicant was taken off Dilantin and attended interviews with the
Respondent to ascertain the nature of the Applicant’s position in relation to his employment.
The Applicant contended that at this point it was indicated to the Applicant that he would
need to wait 12 months before being able to operate a train again.
[18] The Applicant also asserted that during the consultations he had with his Doctors it
was never indicated that should he experience another ‘turn’ he would be prohibited from
driving a train for 10 years. The Applicant submitted that his Doctor had removed him from
this medication, which controlled the episodes, as he was experiencing minor side effects. The
Applicant submitted that if he had known this information (regarding the impediment to
further driving) he would have stayed on the Dilantin, to ensure that he did not experience
such a situation.
[19] The Applicant contended that he was offered a redundancy, however as he believed
that he would be driving trains again after only a 12 month period, he refused. It was
submitted that his supervisor had informed him of the 12 month waiting period.
[20] Following another consultation with his Doctor to obtain clearance for train driving,
the Applicant submitted that he was finally informed of a 10 year ban on his ability to work as
a train driver, based on his recent medical history.
[21] The Applicant submitted that the Respondent failed to offer him a position and that he
subsequently had to apply for available positions along with any other candidates, despite his
record with the Respondent.
[22] The Applicant also submitted that people with conditions such as the one he suffered
from, and similar conditions, were treated more favourably by the Respondent.
[23] The Applicant also made submissions concerning the National Health Standards which
will be considered separately below.
Summary of the Respondent’s Evidence and Submissions
[24] The Respondent submitted that the objects of the Transport (Rail Safety) Act 2010 (the
Rail Safety Act) are to provide for the management of risks associated with railway
operations and that in doing so the Rail Safety Act provides for a system of accreditation that
requires that all rail transport operators to have a safety management system.
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[25] The requirements of the safety management system are set out in s.64 of the Rail
Safety Act and the Respondent submitted that this includes a requirement for the rail transport
operator to have a health and fitness management program. This program must comply with
the requirements in the Transport (Rail Safety) Regulation 2010 (the Regulation).
[26] In particular, the Respondent contended that Regulation 17 requires that a rail operator
provides procedures for monitoring and assessing the health and fitness of the rail safety
workers, consistent with the procedures of the national health standard. The national health
standard was defined as the National Health Standard for Health Assessment of Rail Safety
Workers in Regulation 17(2).
[27] The Respondent submitted that in accordance with this, they implemented a health and
fitness management program as part of the safety management system. Consequently, it was
contended that they have a legal obligation to follow the guidelines of the National Health
Standard.
[28] The Respondent contended that it was this standard process that was followed by
Doctors Sornachalam, McLaughlin and Adam when they assessed the Applicant in regards to
whether he was fit for duty.
Evidence of Dr Stephen Sornachalam
[29] Dr Stephen Sornachalam, Occupational Physician, “interviewed and examined” the
Applicant on 15 March 2012, at the request of QR National. Dr Sornachalam reported to the
Respondent, in relation to the Applicant, on 22 March 2012. A copy of this report was in
evidence.vi
[30] Dr Sornachalam, by the report of 22 March 2012, confirmed that he had reviewed a
letter from Dr Michael Bryant (a Neurosurgeon whom the Applicant consulted following his
October incident), dated 28 February 2012.
[31] Dr Sornachalam stated in his report:
“I contacted Dr Bryant and we had a telephone discussion regarding Mr Born’s fitness
to drive a locomotive. I informed Dr Bryant that the [National Standard] states that a
worker should be seizure [free] for one year following a single provoked seizure event.
Dr Bryant was in agreement with the requirements of the National Standard.
In my opinion, Mr Born does not meet the criteria for safety critical work. He would
require a review around 3/11/2012 which would be 12 months following his seizure.
He is fit for non-safety critical work.”
[32] It is noted that the Applicant subsequently suffered a second seizure or convulsive
episode, but did not return to see Dr Sornachalam. The Applicant cross-examined Dr
Sornachalam who confirmed that as the medical evidence at that time was of an “isolated”
seizure, the National Standard, applied a twelve month period of restriction of duty.vii
[33] Dr Sornachalam confirmed that his opinion was in relation to fitness for work only,
and was predicated upon the medical opinion of the treating Neurosurgeon, Dr Bryant. Dr
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Sornachalam confirmed that, following his discussions with Dr Bryant, he understood that Dr
Bryant concurred that the Applicant’s prognosis, at that time, was consistent with the twelve
month restriction in the National Standard.viii
Evidence of Ms Rosemary Neal
[34] Ms Neal, Senior Work and Rehabilitation Advisor, stated that the Applicant was a
Category 1 Safety Critical Worker (pursuant to paragraph 5.1 of the National Standard). In
particular, Ms Neal referred to Part 4, Table 8 of the National standard as relates to “Medical
Criteria for Safety Critical Workers: Seizures and Epilepsy”. Ms Neal stated that this table
evidenced that a category 1 worker, such as the Applicant, who had experienced a seizure is,
in all cases, not “fit for duty unconditional”. This is subject to review if, amongst other things,
the person has not had a seizure for at least 10 years.
[35] Ms Neal stated that the prior standard, which was used for the preliminary assessments
of the Applicant, by Doctors McLaughlin and Adam, required the Applicant to be seizure free
for a period of five years before being deemed fit for duty.
[36] Ms Neal stated that, as the medical evidence was unclear at the time, she requested
that the Applicant consent to the Respondent seeking further medical information in relation
to the Applicant’s fitness for duty. The Applicant so consented.
[37] Following receipt of Dr Sornachalam’s report (declaring the Applicant unfit for duty
for a period of 12 months), Ms Neal stated that Mr Bruce Grinstead, provided a letter to the
Applicant advising of the outcome and confirming with the Applicant that he was subject to
review on 30 November 2012. This letter stated:
“Your case manager [Ms Neal] has sought medical advice from our Chief Medical
Advisor, Dr Keith Adam, regarding a review of your certificate of fitness prior to
November 30, 2012 and he has provided the following information:
1. Any additional medical information/advice will need to be reviewed by the Chief
Medical Advisor, Dr Keith Adam;
2. Any medical advice will need to be made by a specialist in neurology (either
neurosurgeon or neurologist) and would need to contain:
- A description of the treatment/surgery undertaken to manage the medical
condition;
- acknowledgement that the advice has been written based up a knowledge and
understand of the [National Standard] (relevant section attached);
- a statement about any increased risk in terms of blackouts/fitting that the
worker may have; and/or a statement that the worker will be seizure free as per
the standard requirements
- acknowledgement of the safety critical nature of worker’s role as a train
driver and that he is fit to drive a train”
[38] Ms Neal stated that on 11 October 2012 Mr D B McLaughlin, Neurologist, examined
the Applicant. Ms Neal, at the invitation of the Applicant, was present during this
examination. Ms Neal stated that the Applicant advised Dr McLaughlin that he had suffered
another seizure in April 2012. Ms Neal was not aware of this further seizure until this time, or
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at least it had not been formally confirmed to her.ix Dr McLaughlin subsequently declared the
Applicant unfit until April 2017 (being 5 years after, what was at that time, the last seizure).
[39] Dr Adam subsequently reviewed the Applicant, with the report of Dr McLaughlin, and
concurred that the Applicant was unfit for duty, with a review in April 2017.
Evidence of Dr Keith Adam
[40] Dr Adam, Specialist in Occupational and Environmental Medicine and Chief Medical
Officer for Aurizon, provided a report on 2 November 2012 regarding the Applicant’s fitness
for duty.
[41] The report of Dr Adam was predicated upon the reports of Dr Sornachalam and Dr
McLaughlin. In his letter, enclosing his report, Dr Adam stated:
“Mr Born is a Locomotive Drive who suffered a seizure in October 2011, which was
found to be due to a frontal lobe abscess. This was treated surgically, and he was
treated prophylactically with anticonvulsants medication for 3 months. At that time, Dr
Sornachalam advised that he was unfit to resume safety critical duties for 12 months.
He suffered a 2nd (sic) seizure in April 2012 without provocation. Dr McLaughlin
considered that Mr Born has developed Epilepsy as a consequence of his previous
frontal lobe abscess, and has prescribed a long-term dilantin. He advises that, in
accordance with the medical criteria for safety critical workers, that he cannot return
to locomotive driving until April 2017.
I concur with Dr McLaughlin’s diagnosis, and advise that Mr Born cannot be
considered for a return to safety critical duties until he has been fit free for a period of
5 years, i.e. not before April 2017. Given the duration of incapacity, I have certified
him as totally unfit, although on the understanding that his circumstances may be
reviewed in April 2017.” x
[42] Attached to this report was a “Chief Medical Officer Review” by which Dr Adam
certified the Applicant as “Permanently Unfit for Duty - Does not meet the medical criteria
and cannot perform the job in the future”.
[43] Dr Adam was not cross-examined by the Applicant. The Commission accepts the
evidence of Dr Adam.
Evidence of Ms Rebecca Holmes
[44] Ms Holmes, Human Resource Graduate with the Respondent, was involved in the
management of the Applicant’s case since November 2012. Ms Holmes stated that she
assisted the Applicant in the job search process and was present at meetings between the
Applicant and Mr Christopher Allen, Human Resources Manager in Jilalan.
[45] Ms Holmes assisted Mr Allen in locating job vacancies, on the Respondent’s intranet
page, that may have suited the Applicant. Mr Holmes stated that she discounted specialist
positions for which the Applicant would not be qualified. As a part of this process Ms Holmes
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checked the medical fitness required for positions and discounted those that required a
Category 1 medical.
[46] Results that Ms Holmes found for the Applicant’s consideration would be advised to
the Applicant, by telephone, and Ms Holmes would assist the Applicant in locating the
advertisement on the Respondent’s career’s webpage for his review and application.
[47] On 16 November 2012, Ms Holmes attended a meeting with Mr Allen and Mr Laurie
Denman (Regional Manager Maintenance Coal North) to discuss possible adult
apprenticeships. Ms Holmes stated that no adult apprenticeships were available at that time.
[48] On 21 November 2012, Ms Holmes spoke with the Applicant and offered to provide
his resume to various depot managers to see if there was a position which may be suitable for
the Applicant. The Applicant advised he did not have a resume. Ms Holmes sent a resume
template, by email, to the Applicant to fill out and return. This email was sent on 26
November 2012 and 1 January 2013.
[49] Ms Holmes also provided the Applicant, by email on 26 November 2012 and 4
January 2013, two positions for his consideration: Rail Infrastructure Inspector and Work
Coordinator.
[50] On 22 February 2013, Ms Holmes and Mr Allen discussed the interview process for a
position that the Applicant had applied for: Rollingstock Deployment Officer. This also
included some discussion of questions that the Applicant might be required to answer, during
this process and also a discussion on possible responses to those questions.
[51] Ms Holmes was required for cross-examination. The Applicant did not seek to
challenge the facts as stated by Ms Holmes.
[52] In response to questioning from the Commission, Ms Holmes stated:
“At that time. Did that impact on the availability of positions that Mr Born could apply
for?---Yes. There was only, like, five or six vacancies – like, the list was quite small
when I would look on there.
In all that time?---Yes. It was quite small – like, a maximum – oh, I’m only guessing
here but it was really small.
And why is that? Is it because there were simply – because of the restructure there
were very few vacancies - - -?---Yes.
Or was it a difficulty matching the available positions with Mr Born’s medical
restrictions?---It was a combination of both. I can’t really speak on behalf of the
company but in my opinion the restructure did affect the job vacancies, and some roles
I wouldn’t deem suitable for Steve – that were, like, specialist roles – like a financial
organiser, lead engineers – that, sort of, type specialised knowledgeable skills – but
any other role I would consider and look it up in the position description.”xi
Evidence of Mr Christopher Allen
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[53] Mr Allen is the Human Resources Manager Coal North and has been involved with Mr
Born’s employment since May 2012.
[54] On 9 November 2012, Mr Allen met with the Applicant to discuss the report of Dr
Adam, about the Applicant’s medical condition and his management under the relevant
policy. Mr Allen gave further evidence about particular attempts he had made to assist the
Applicant.xii
[55] In January 2013 Mr Allen discussed, with the Applicant, the progress of his
applications for two positions that he had applied for. The Applicant was unsuccessful in
attaining these positions. The Applicant advised that he had applied for a further position.
[56] On 15 January 2013, Mr Allen confirmed that he arranged for Ms Holmes to send the
Applicant’s resume to a number of managers in the region.xiii
[57] Mr Allen also stated that he requested that Ms Holmes enquire about adult
apprenticeships for the Applicant in Rockhampton.xiv Under cross-examination Mr Allen
confirmed however that the apprenticeship positions for 2013 had already been filled,
meaning no positions were available for the Applicant to take.
[58] On 18 January 2013 Mr Allen met with the Applicant and his support person, Mr
Bruce Mackie of the Rail, Tram and Bus Union (RTBU). At this meeting Mr Allen stated that
he advised the Applicant:
“[the Respondent] would continue to search for suitable positions for him taking into
account his medical condition, however the company could not continue to employ him
indefinitely so that he could access insurance payments under his QSuper policy as his
position was vacant and required someone to perform it. It could not remain vacant.”xv
[59] Mr Allen again met with the Applicant, and Mr Mackie, on 22 February 2013 to
discuss the progress of any job placements. At this meeting Mr Allen agreed to extend the job
search period for a further one month to assist him in finding an alternate role.
[60] Mr Allen met with the Applicant on 22 March 2012, with Mr Mackie present. Mr
Allen provided the Applicant with a letter that confirmed the job search period had ended and
that the Respondent would further consider the Applicant’s position. Mr Allen stated that the
Applicant requested he be allowed time to seek a further medical opinion in relation to his
condition and that he continue to be employed so he could continue to receive QSuper
payments.
[61] Mr Allen advised that on 4 April 2013 Mr Greg Dixon, Acting Vice President Service
Delivery Coal, issued to the Applicant, by registered mail, a show cause letter. The evidence
is that the Applicant did not receive this letter. Mr Allen stated that the show cause letter from
Ms Baxter (discussed above) was then sent.
National Health Standards
[62] The Respondent submitted that the Rail Safety Act, and the Regulation, imposes duties
and obligations on “rail transport operators” and “rail safety workers” directed at ensuring rail
safety.
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[63] The Rail Safety Act applies to “railway operations, rail safety work and other
activities associated with railway operations”.xvi
[64] Railway operations are defined by s.9 of the Rail Safety Act as:
“9 Meaning of railway operations
Each of the following are railway operations—
(a) the construction of a railway, railway tracks and associated track structures or
rolling stock;
(b) the management, commissioning, maintenance, repair, modification, installation,
operation or decommissioning of rail infrastructure;
(c) the commissioning, maintenance, repair, modification or decommissioning of
rolling stock;
(d) the operation or movement, or causing the operation or movement in any way, of
rolling stock on a railway track, including for the construction or restoration of rail
infrastructure or operating a railway service.”
[65] The operations of the Respondent fall generally within the definition contained in
s.9(d) of the Rail Safety Act.
[66] Rail safety work is defined by s.10 of the Rail Safety Act, relevantly including:
“10 Meaning of rail safety work
(1) Work that is of any of the following classes is rail safety work—
(a) driving or despatching rolling stock or another similar activity capable of
controlling or affecting the movement of rolling stock;”
[67] The Applicant’s substantive position falls within the meaning of rail safety work.
[68] The Applicant stated that s.5(2)(a) of the Rail Safety Act excluded the Act from
operation in relation to “railway operations, rail safety work or another activity relating to
any of the following”:
“(a) a railway that--
(i) is part of, and used soley for, mining operations; and
(ii) is not connected to a railway used to transport passengers or freight;”
[69] The Applicant submitted that the Respondent does not transport passengers on the
Goonyella system but that the Goonyella system transports coal only. The Respondent
submitted that this exception does not apply to their operations.
[70] A railway is defined by the Rail Safety Act as:
“railway means a guided system, or proposed guided system, designed for the
movement of rolling stock having the capability of transporting passengers or freight,
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or both, on a railway track with a gauge of 600mm or more, together with its rail
infrastructure and rolling stock, and includes—
(a) a heavy railway; and
(b) a light railway; and
(c) a monorail; and
(d) an inclined railway; and
(e) a tramway; and
(f) a railway within a marshalling yard or a passenger or freight terminal; and
(g) a private siding; and
(h) a guided system prescribed under a temporary regulation to be a railway.”xvii
[71] The Rail Safety Act states, in s.5, that Mining operations means, so far as is relevant to
this matter, coal mining operations within the meaning of Coal Mining Safety and Health Act
1999, schedule 3.
[72] The Coal Mining Safety and Health Act 1999 defines coal mining operations as:
“coal mining operations means activities, including on-site activities, carried out at a
coal mine that are associated with the following in relation to coal or coal seam gas—
(a) exploration;
(b) extracting;
(c) the processing and treatment;
(d) installing and maintaining equipment used for extraction, processing and
treatment.”xviii
[73] Mr Walker, for the Respondent, described the nature of the railway operations on
which the Applicant was employed as follows:
“[The Applicant] worked on a railway known as the Goonyella system that runs
between Hay Point and Goonyella. The Goonyella system railway is owned by
Aurizon, which is a transport logistics service provider. So we have contracts with the
mines in the Goonyella system to transport their coal from the pit down to the port. As
part of that we provide the rolling stock, the rail infrastructure and we transport the
coal. So Aurizon is not engaged in, nor has any interest in, a coal mining operation as
defined in the Coal Mining Safety and Health Act, nor is it engaged in or has an
interest in operations as defined in the Mining and Quarry Safety and Health Act.”xix
[74] And further:
“the Goonyella system is actually connected to what's know as the north coast line at
Buccan, and the north coast line runs between Brisbane and Cairns. The majority of
the line is actually owned by Queensland Rail, except between Callemondah and
Rockhampton, which is owned by Aurizon. On that north coast line which is connected
to the Goonyella system passengers and freight are transported - that's probably an
unfair way of describing passengers - but passengers use the Tilt Train service,
for example, and a freight known as bulk and intermodal, which is non-coal, is
transported up and down the north coast line.
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So in our submission the second aspect of that exclusion is also not met because the
Goonyella line is connected to a railway that's used to transport passengers and
freight in section 5(2)(a)(ii).”xx
[75] Section 5(2) of the Rail Safety Act precludes the Rail Safety Act from applying to
“railway operations...relating to...a railway that...is part of, and used solely for, mining
operations and is not connected to a railway used to transport passengers or freight”.
[76] The parties have not submitted evidence in relation to the specific operations in this
regard. The Rail Safety Act is an Act within the jurisdiction of the State Courts of
Queensland. However, on the basis of the material before the Commission I am satisfied, at
least on the basis of the requirements of s.5(2) of the Rail Safety Act, specifically s.5(2)(a)(ii)
that the Act does apply to the railway operations of the Respondent, and particularly the rail
safety work undertaken by the Applicant.
[77] Having considered that the Rail Safety Act, and the Regulations, apply to the
Respondent, I now turn to consider the National Standard.
[78] The Respondent relied upon its obligations in ensuring rail safety, and the obligations
of the Applicant, in acting upon the Applicant’s employment. The Applicant contended that
the Health Standards are “not law” and cannot be relied upon by the Respondent as forming a
valid reason for dismissal.
[79] The Regulations commenced operation on 1 September 2010.xxi Regulation 17
requires:
“For section 83 of the [Rail Safety Act], a rail transport operator’s health and fitness
program for rail safety workers must provide for procedures for monitoring and
assessing the health and fitness of the rail safety workers that are consistent with the
guidelines for the procedures stated in the national health standard.
(2) In this section—
national health standard means the standard called ‘National Standard for Health
Assessment of Rail Safety Workers’, developed by the National Transport
Commission.”
[80] By virtue of s.83 of the Rail Safety Act, and regulation 17 of the Regulations, the
Respondent is required to have and implement a “health and fitness program” for “rail safety
workers” that is consistent with the national health standard, being the National Standard for
Health Assessment of Rail Safety Workers’. It is clear that, whilst not forming a ‘law’ itself -
not being an Act of Parliament - the Respondent is required, by the Rail Safety Act, to have a
program that is consistent with the guidelines in the National Health Standard. The
Commission is therefore satisfied that the Respondent is required to have such a
policy/program and to enforce it. It is noted that failure to comply with the requirement, by
the Respondent, in s.83 of the Rail Safety Act carries a maximum penalty of $22,000.00.xxii
Consideration
[81] It is necessary to consider the following relevant criteria in s.387 of the Act.
[2014] FWC 22
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(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).
[82] The Respondent terminated the Applicant’s employment because of the ongoing
restrictions upon the Applicant’s ability to perform the inherent requirements of his position
as a result of his medical condition.
[83] The medical evidence is clear; the Applicant suffered two seizures in late 2011 and a
further seizure in April 2012. The opinion of Dr McLaughlin, was that the Applicant had
developed epilepsy as a consequence of his previous neurological condition.
[84] The National Standard, which I am satisfied applied to the Respondent’s operations,
prescribed that for a safety critical category 1 role (as the Applicant was employed in), a
person was not fit for duty, if they had suffered a seizure in the previous 5 years (later
adjusted to 10 years).
[85] The National Standard, as discussed above, is a required standard of operation in
relation to the Respondent’s operations and was incorporated into the Respondent’s policies
in managing safety. The Applicant accepts that he did have the seizures in question and has
not lead any medical evidence to the contrary in these proceedings. The Australian Standard is
given weight, as being the guiding obligation for compliance for the Respondent’s operations.
[86] I am satisfied that the Applicant was unable to perform the inherent requirements of
his substantive role, because of his medical restrictions. The Respondent, in accepting the
medical restrictions, was acting within the terms of their policy and the National Standard.
Failure to do so may have put the Applicant, and potentially third parties, at risk if the
Applicant had a further seizure and may have made the Respondent liable for penalties for
failing to comply with a requirement under the Rail Safety Act.
[87] The reason for the dismissal is for a valid reason relating to the Applicant’s capacity or
lack thereof to perform the inherent requirements of his substantive position, in accordance
with the relevant legislation.
(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.
[88] It is not in dispute that the Applicant was notified of that capacity related reason and
was provided with an opportunity to respond.
[89] While the Applicant did request a further period within which to seek a second
medical opinion, this was rejected, as there was no evidence to support the contention that an
additional period to seek a further medical opinion would have changed the outcome.
[90] This matter was heard several months after the Applicant’s dismissal and the
Applicant did not lead any further medical evidence to challenge the medical opinion filed in
these proceedings.
(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.
[2014] FWC 22
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[91] This matter is not in dispute. The evidence is that during most of the discussions
involving the Applicant, a representative of the Applicant’s Union was present. There is no
evidence that the Applicant made any request to have a support person present that was
unreasonably refused.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person
had been warned about that unsatisfactory performance before the dismissal.
[92] This matter does not arise in relation to the dismissal. However, the Applicant’s length
of service has been taken into account.
(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.
[93] I have taken into account the size of the Respondent’s enterprise in relation to the
dismissal procedure and the alternative possibilities for redeployment with the organisation.
The Applicant was afforded an extended period to apply for alternative positions.
(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.
[94] I have taken into account the access the Respondent has to dedicated human resources
and management specialists as well as industrial relations expertise. No significant
deficiencies in the manner in which the dismissal was effected were pleaded by the Applicant,
except for in relation to the Respondent’s redeployment efforts generally. The Applicant also
argued the unfairness in his lack of knowledge in relation to the significant bar to his
continued employment in his substantive, safety critical position, arising from the medication
issue.
(h) any other matters that the FWC considers relevant.
[95] I have taken into account the Applicant’s substantial period of service, the actions of
the Respondent in attempting to assist the Applicant in finding another suitable position and
the Applicant’s employment history.
Conclusion
[96] The Applicant’s case was centred on what he perceived was an obligation upon the
Respondent to place him into another position. The Applicant was of the view that given his
substantial service with the Respondent, and the circumstances of his impediment to work in
his substantive position, that he was owed some level of loyalty by the Respondent in
minimising the impact of his personal health issues on his employment. The Applicant
considered that the Respondent should undertake an extensive redeployment exercise, in
which they demonstrated active assistance and seeking of alternative employment for the
Applicant. The Respondent submitted that this was done on the face of the search assistance
provided to the Applicant. The difficulty was the issue of available alternative employment
and the significant restrictions that the Applicant’s condition imposed upon him in terms of
the nature of jobs that were available and that he could undertake.
[2014] FWC 22
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[97] Whilst the Commission is sympathetic to the Applicant’s position, the matter remains
that the Respondent was under no strict legal or statutory obligation to arbitrarily place the
Applicant into another position that he was not suitable, or medically fit for.
[98] To find otherwise would place an unduly heavy burden upon the Respondent to
maintain the employment of an employee who, the medical evidence shows, cannot perform
his substantive position for a period of at least a further 8 years (assuming the Applicant has
no further seizures in that time). Whether or not the Applicant was receiving payment directly
from the Respondent is irrelevant to this consideration. An employer is not required to
maintain an employee “on the books” for an extended period of time, where the prospects of
that employee ever being able to safely perform their substantive position again is minimal or
would not be such, within a reasonable period of time. It is to be recalled that the Applicant
had been unfit for duty/absent from work from a period of almost 18 months.
[99] Accordingly, for the aforementioned reasons, the application made pursuant to s.394
of the Act is dismissed.
[100] Order accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR546403
i Affidavit of Catherine Theresa Baxter at CTB1.
ii Ibid at CTB2.
iii Ibid at CTB4.
iv Ibid at CTB5.
v Applicant’s submissions, dated 7 August 2013.
vi Statement of Dr Steven Sornachalam, annexure SSI.
vii PN825 - PN832.
viii PN835 to PN838.
ix PN1347 - PN1348.
x Affidavit of Dr Keith William James Adam, KWJA1.
xi PN1573 - PN1576.
FAIR WORK CO 1 SSION AUSTRALIA THE SEAS
[2014] FWC 22
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xii Statement of Mr Christopher David Allen at paragraph 7.
xiii Ibid annexure CDA10.
xiv Ibid annexure CDA11.
xv Ibid at paragraph 12.
xvi Transport (Rail Safety) Act 2010 (Qld) s5(1).
xvii Ibid Schedule 3.
xviii Coal Mining Safety and Health Act 1999, Schedule 3.
xix PN160.
xx PN165 - PN166.
xxi Transport (Rail Safety) Regulations 2010, s.2.
xxii Transport (Rail Safety) Act 2010 (Qld) s.83 and Penalties and Sentences Act 1992 (Qld) s.5(1)(d).
