Lion Dairy and Drinks Milk Limited v Norman, Peter - [2016] FWCFB 4218

1

Fair Work Act 2009 
s.604 - Appeal of decisions

Lion Dairy and Drinks Milk Limited

v

Peter Norman
(C2016/2805)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON MELBOURNE, 28 JULY 2016

Appeal against decision [2016] FWC 840 of Deputy President Bartel at Adelaide on 10 
February 2016 in matter number U2015/7090 – Whether valid reason relating to capacity –
Test for determining whether a valid reason – Relevance of subsequent assessments – Role of 
Commission in determining valid reason – Fair Work Act 2009, s.387.

Decision of Vice President Watson and Commissioner Wilson

Introduction

[1] On 24 March 2016 this Full Bench granted Lion Dairy and Drinks Milk Limited (Lion 
Dairy) permission to appeal against the decision of Deputy President Bartel of 10 February 
2016 in an unfair dismissal application made by Peter Norman under s.394 of the Fair Work 
Act 2009 (the Act).1

[2] The Deputy President held that Mr Norman had been unfairly dismissed as his 
dismissal was found to be unjust and unreasonable. The Deputy President ordered that Mr 
Norman be reinstated to his former position and be paid for remuneration lost by him as a 
result of his dismissal.

[3] At the hearing of the appeal on 22 June 2016, Ms R. Preston of counsel, with Ms D. 
Katris, appeared on behalf of Lion Dairy and Mr R. Manuel of counsel, with Mr T. Hardie, 
appeared on behalf of Mr Norman.

[4] A chronology of relevant events is conveniently recorded in the Deputy President’s 
decision:

“23 February 2014: Applicant’s accident.

19 February 2015: Employer requests that Dr Graham undertake a medical assessment 
of the applicant and provide recommendations on his capacity to perform his role.

[2016] FWCFB 4218

DECISION


E AUSTRALIA FairWork Commission




 



[2016] FWCFB 4218

2

5 March 2015: Dr Graham examines the applicant.

11 March 2015: Dr Graham’s report (“the initial report”) provided to the employer.

25 March 2015: Meeting with the applicant Mr Draper and Ms Liston. Initial report 
provided to the applicant. This was to be a show cause meeting, but was adjourned 
after the applicant presented a certificate from Professor Jaarsma clearing him to 
return to work on 30 March 2015.

27 March 2015: Employer requests a further report from Dr Graham in light of 
Professor Jaarsma’s clearance.

30 March 2015: Dr Graham provides a further medical report (“the supplementary 
report”) to the employer.

1 April 2015: ‘Show cause’ meeting with the applicant, Mr Draper and Ms Pool. The 
applicant is given a copy of the supplementary report. A ‘show cause’ letter is 
provided to the applicant, giving him until 7 April 2015 to provide further information.

7 April 2015: Applicant responds to show cause letter.

9 April 2015: Employer requests that the applicant provide permission to speak with 
Professor Jaarsma.

10 April 2015: Applicant responds to employer request.

15 April 2015: Further meeting attended by the applicant, Mr Gordon, Mr Draper, Ms 
Liston. Ms Pool attends via telephone conference call. The applicant’s employment is 
terminated.”

[5] The show cause letter included the following passages:

“Dr Graham advises that at the present time you are unfit to perform all the inherent 
requirements of the job of a Mechanical Technician (Fitter) and it is not possible to say 
if you will improve to a level which you can undertake normal duties. He also stated 
that you mentioned in the assessment that “in reality” you could not complete all jobs 
required of you as a maintenance fitter.

Dr Graham further advises that you will not be able to work in any safety critical 
situation where balance and stability are important. Furthermore, you should avoid 
working in awkward positions, avoid squatting, climbing ladders and frequent use of 
steps.

Based on the information contained in the medical report from Dr Graham, the 
company has determined that it cannot make any reasonable modifications which 
would enable you to perform your role as Mechanical Technician (Fitter). We also 
acknowledge that you are unable to perform the inherent requirements of your role for 
the foreseeable future.








[2016] FWCFB 4218

3

Unfortunately, due to the nature and degree of the restrictions, the Company is also 
unable to find any other suitable positions that meet the conditions outlined by Dr 
Graham.

Taking into account all the information, the Company is in a position where it 
considers that it may need to terminate your employment, on the basis that you are no 
longer able to perform the inherent requirements of your position as Mechanical 
Technician (Fitter).

We would like to give you the opportunity to think of any solutions or roles that you 
could perform that meet the restrictions outlined. We also ask if there is any other 
information which we should take into consideration, before the Company makes a 
final decision in relation to your employment.

Please provide any information to me in writing or by telephoning me the latest by 7 
April 2015. … 

Please contact me if you have any questions or concerns.”

[6] The letter of termination issued by Lion Dairy included the following:

“This letter confirms our discussion regarding your fitness to complete your normal 
duties.

After Lion received advice from Occupational Physician, Dr Graham (report dated 11 
and 30 March 2015), that you are unable to perform the inherent requirements of your 
role, I invited you to provide any alternative work solutions or, if there are no 
alternative roles, to provide me with reasons why your employment should not be 
terminated.

In your response letter, you requested to consider the medical certificate from your 
orthopaedic surgeon, which states a return to work date of 30 March 2015. We asked 
for your permission to contact your surgeon to discuss this certificate, which you 
didn’t grant. You also stated in your response letter that you have 32 years of 
experience as a fitter and understand of (sic) how to conduct your tasks in a safe and 
productive manner.

Based on the medical information we have been provided, we have determined that 
unfortunately we cannot make any reasonable modifications which would enable you 
to perform the inherent requirements of your substantive role. Additionally, we are 
unable to find, and you have not been able to identify, any other suitable positions that 
meet your medical restrictions.

Taking all of the above into consideration, Lion has decided to terminate your 
employment, effective today, on the basis that you are no longer able to perform the 
inherent requirements of your position.

You will receive any accrued leave entitlements that are payable to you on 
termination. As you are currently on unpaid leave, your payment in lieu of notice is 
not applicable.”








[2016] FWCFB 4218

4

Valid Reason

[7] The appeal grounds essentially address the finding of the Deputy President that there 
was not a valid reason for Mr Norman’s dismissal. The Deputy President commenced a 
consideration of this issue with the following:

“[58] For a reason to be valid it must relate to the capacity or conduct of the person, 
including the effect of the person’s capacity or conduct on the safety and welfare of 
other employees. Capacity relates to an employee’s ability to do the work he or she 
was employed to undertake.

[59] Whether there was a valid reason to dismiss is a matter not only to be considered 
but to be accorded some significance in determining if the dismissal is harsh, unjust or 
unreasonable.2 The Commission is required to conduct an objective analysis of all 
relevant facts in determining whether there was a valid or sound or defensible reason 
to dismiss.3

[60] In this matter it is the applicant’s capacity, rather than conduct, that is in issue. 
The Commission is required to consider and make findings on whether, at the time of 
dismissal, the applicant was able to perform the inherent requirements of his position 
based on the medical and other evidence. If not, then consideration is to be given to 
whether he would be able to fulfil his position at some time in the future and whether 
reasonable modifications could be made to accommodate any restrictions or 
limitations that he may have.4”

[8] The decision goes on to summarise the relevant evidence as follows:

“[61] Dr Graham’s conclusion that the applicant was unable to safely perform the 
inherent requirements of his position as at the date of examination on 5 March 2015 is 
not in dispute. The controversy concerns Dr Graham’s assessment of the applicant’s 
future capacity to perform his role. In making this assessment, Dr Graham said his 
focus was not on the applicant’s recovery from the injuries he suffered in the accident 
but on the function of his joints.5 His opinion was significantly influenced by his 
diagnosis of degenerative change in the applicant’s knees.6

[62] The available radiology indicates that the applicant has arthritis in three of the 
four knee joints in his left knee. Regardless of whether the degenerative change is 
characterised as significant or otherwise, and views may differ on this7, the CT report 
states that, “A similar appearance was present on Xrays dated 23 February, at the 
time of the femoral fractures.” That is, there is no radiology that suggests any further 
degeneration in the applicant’s knee as a result of his accident. I have also taken into 
account Professor Jaarma’s evidence that the radiology is not determinative of the 
level of restriction in the joint and that the level of degenerative changes that the 
applicant has “… are very similar if not normal for a 50-year-old, 51-year-old manual 
labourer.”8

[63] The other matter of some weight in Dr Graham’s assessment of the applicant’s 
future capacity to perform his role was the applicant’s own assessment of his 
restrictions and ability to return to work. 








[2016] FWCFB 4218

5

[64] In response to a question about the likelihood that the applicant would improve at 
a rate greater than he assessed in his initial report, Dr Graham stated that “Mr Norman 
said clearly to me that he didn’t think that he could return to this job.”9 This was a 
matter of some significance in Dr Graham’s assessment and was cited by the employer 
in the show cause letter issued to the applicant.

[65] However, when the applicant discussed his limitations and his inability to return 
to work he was speaking of his situation at the time of the assessment on 5 March 
2015. This was the applicant’s evidence and is confirmed in Dr Graham’s notes of his 
examination of the applicant, which record the applicant’s comments under the 
heading “At present time”.10 Dr Graham’s initial report also records that the applicant 
is confident that he will improve to a point where he can perform his role, albeit that 
Dr Graham did not share his confidence. 

[66] Dr Graham’s assessment was that the applicant was at risk of further exacerbating 
the degenerative change in his knees if he returned to his position. This is in conflict 
with his conclusion in the initial report that, “The likelihood of risk of further injury is 
not great.” Dr Graham’s explanation for this apparent conflict is that the conclusion in 
the initial report referred to the risk to refracturing his femurs. However this is 
inconsistent with the stated focus of his assessment. At the time of his assessment on 5 
March 2015 the applicant had not been cleared by Professor Jaarsma and Dr Graham 
did not have any radiology on which to support such a conclusion. Accordingly I do 
not accept Dr Graham’s oral evidence on this matter. 

[67] The terms of the request to Dr Graham for a further report advise him to contact 
the employer if he needs to see the applicant again. In this context there was no barrier 
to Dr Graham further examining the applicant. His decision not to do so in light of 
Professor Jaarsma’s clearance and Dr Graham’s own equivocation in relation to the 
applicant’s prognosis, is surprising. For example, in the initial report Dr Graham stated 
that “The prognosis is very difficult to suggest”; and “… it is not possible to say 
whether [his restrictions or reduced functional capacity] are temporary or permanent”. 
I am also concerned that Dr Graham’s supplementary report was influenced by his 
misunderstanding of the applicant’s own views about a return to his position.”

[9] The Deputy President then reached the following conclusions:

“[68] Taking all of the above matters into account, I do not accept Dr Graham’s 
assessment that the applicant would not be fit to return to his position within three 
months of the examination on 5 March 2015. This does not however automatically 
lead to a conclusion that the applicant was fit to perform the inherent requirements of 
his position at the point of dismissal.

[69] In reaching a view as to the applicant’s capacity when he was dismissed I prefer 
the evidence of Professor Jaarsma to that of Dr Graham where there is a conflict. I 
have relied upon Professor Jaarsma’s evidence that: 

 The applicant had not achieved his pre-injury level of capacity as at 25 March 2015 
but that this is rarely achieved where there has been serious injury and an extended 
absence from work and that, at best, a recovery to 95% - 98% is achievable.








[2016] FWCFB 4218

6

 The degenerative change in the applicant’s left knee was not a barrier to performing 
his role as maintenance technician;

 The applicant’s femurs had sufficiently healed so that he was not at risk of further 
injury;

 There was no barrier to the applicant returning to work;

 It was up to the employer and occupational physician to determine how the applicant 
could be fully integrated into his position.

[70] Accordingly I find that the restrictions suffered by the applicant when assessed by 
Dr Graham on 5 March 2015 were predominantly connected to the trauma he suffered 
and the healing process. The applicant could, and I find that he did continue to 
improve after this date.

[71] In J Boag and Son Brewing v Button (Boag)11 the worker had permanent 
restrictions and was unable to fulfil the inherent requirements of his original position. 
The employer had arranged for other workers to assist Mr Boag in his role over a 
period of many months. It was held at first instance that Mr Boag performed the 
inherent requirements of his position as it had been modified by the employer when it 
made available the assistance of the other workers. On appeal the Full Bench held that 
it is the substantive role and not any modified, restricted duties or temporary 
alternative position that must be considered.12

[72] The applicant may have had some residual difficulty with squatting but he was 
not unable to squat or assume awkward positions, nor was he at risk if he did so. He 
may well have benefitted from a gradual integration to full duties having regard to the 
fact that he had suffered a serious trauma and been absent from the workplace for over 
12 months. In the circumstances of this case it would be wrong to conclude that, 
because the applicant may potentially benefit from a reintegration program, he was 
unable to perform all the inherent requirements of his position. I am satisfied that the 
applicant could perform the requirements of his position and accordingly there was no 
valid reason for dismissal.”

[10] The first issue that arises from this analysis is whether the Deputy President properly 
applied the test for establishing the existence of a valid reason for termination. It has long 
been established that the decision of Northrop J in Selvachandran v Peteron Plastics Pty Ltd13

establishes the applicable formulation of the test for a valid reason. Although the case was 
decided under a different legislative scheme, whereby the existence of a valid reason was a 
statutory requirement, the test has been consistently applied to the current legislative 
formulation in which the existence of a valid reason is one, albeit important, consideration in 
determining whether a dismissal is harsh, unjust or unreasonable. A further difference in the 
legislative regime is the introduction of the legislative object of ensuring that a “fair go all 
round” is accorded to both the employer and employee concerned. As Gray J said in Fryar v 
Systems Services Pty Ltd14, under the previous legislation “the realm of a ‘fair go all round’ 
…is not a realm that (the Industrial Relations) Court inhabits. The provisions (of the former) 
Act are not directed to achieving some balance between the interests of employers and 
employees in particular cases. They constitute a charter of rights for employees.”








[2016] FWCFB 4218

7

[11] Noting these important differences, and the adoption of the Selvachandran test under 
subsequent legislative provisions, it is important to consider precisely what was said in that 
case and the way in which it has been adopted and applied. The formulation by Northrop J 
followed a history of different approaches being adopted by the Industrial Relations Court in 
first instance decisions. Ultimately an approach which adopted a wider interpretation of the 
meaning of ‘valid reason’ were overruled by Full Court decisions applying Northrop J’s 
reasoning. Northrop J said:

“In its context in subsection 170DE(1), the adjective "valid" should be given the 
meaning of sound, defensible or well founded. A reason which is capricious, fanciful, 
spiteful or prejudiced could never be a valid reason for the purposes of subsection 
170DE(1). At the same time the reason must be valid in the context of the employee's
capacity or conduct or based upon the operational requirements of the employer's 
business. Further, in considering whether a reason is valid, it must be remembered that 
the requirement applies in the practical sphere of the relationship between an employer 
and an employee where each has rights and privileges and duties and obligations 
conferred and imposed on them. The provisions must "be applied in a practical, 
commonsense way to ensure that" the employer and employee are each treated fairly 
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, 
when considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the 
right of an employer to dismiss an employee.”

[12] Northrop J’s formulation was adopted in subsequent Full Court decisions. A useful 
summary of the scope of the phrase is given by a Full Court in Qantas Airways Limited v 
Cornwall15. The Full Court said:

“The meaning to be attributed to s 170DE(1) came up for consideration by a Full Court 
of this Court in Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127. The case was 
concerned with a dismissal based on the operational requirements of the employer. In 
that context, Northrop J said (at 137): 

"To be a valid reason, the reason must be lawful in the sense of not being 
prohibited, and genuinely must be based on those operational requirements. 
The word `valid' is used as an adjective qualifying the word `reason' and is 
used in the sense of sound, defensible or well-founded with respect to the 
foundation, namely, the operational requirements of the employer." 

Section 170DE(1) being derived from Article 4 of the Convention, the provision in 
Articles 8 and 9 for justification of the termination, which, in the context of the 
Convention, would have to be by reference to Article 4, confirms the interpretation 
adopted by Northrop J of "valid reason" as one that is sound, defensible or well-
founded with respect to the foundation, whether operational requirements, capacity or 
conduct, established in the particular instance. His Honour went on to make it clear (at 
144) that the "court should not, under the guise of `valid reason', have ... regard to 
matters affecting the employee which previously would have come within the harsh, 
unjust or unreasonable provisions of the invalid s 170DE(2)". In their joint judgment, 
Lindgren and Lehane JJ expressed substantial agreement with the reasons of Northrop 








[2016] FWCFB 4218

8

J. They commented (at 151) on the decision of the High Court in Victoria v The 
Commonwealth as follows: 

"Of particular importance for present purposes is the statement that that which 
is `harsh, unjust or unreasonable' is not a subset of the characteristics of a 
reason which render it not `valid'. Thus, if a termination for a reason based on 
one of the two matters referred to in s 170DE(1) operates, in relation to the 
employee concerned, in a way that is `harsh, unjust or unreasonable' it does 
not follow that the reason is not `valid'. A fortiori, a reason for termination, 
connected with or based on one of the two permitted matters, may be valid 
even if the termination, though perhaps falling short of being harsh, unjust or 
unreasonable, may be regarded as unfair. In other words, fairness, 
reasonableness or justice, as regards the employee, is not the realm of 
discourse with which `valid' is concerned. No doubt a recognition of that, or at 
least a fear that it might be so, explains the wish of the parliament to enact s 
170DE(2)." 

Their Honours continued (at 151-152):

"In our view, `valid' in the Convention context is at least primarily to be 
regarded as providing a compendious way of excluding those reasons which, 
under Arts 5 and 6, are not valid. In the statutory context with which we are 
concerned, the primary work of `valid' is to exclude the reasons listed in s 
170DF(1). If there are other reasons for which an employer may not lawfully 
dismiss an employee, then equally, no doubt, such a reason will not be a `valid' 
reason. Additionally, perhaps, the word `valid' may serve to emphasise that the 
reason must be genuinely connected with the employee's capacity or conduct 
or genuinely based on operational requirements. In our view, both the context 
and the decision of the High Court in Victoria v Commonwealth require the 
conclusion that it has no wider operation." 

Immediately after this passage, their Honours continued by expressing agreement with 
Northrop J that certain first instance decisions, "to the extent that [they] hold that the 
word `valid' should be given a wider meaning, ... should be overruled". The wider 
meaning suggested in each of the cases referred to was one that embraced 
considerations going to the question whether the decision was fair, reasonable or just 
from the point of view of the employee. 

The propositions we have extracted from Cosco Holdings were not mere dicta; they 
express the considerations on the basis of which the appeal in that case was 
unanimously allowed. Nor do they represent a narrow or artificial construction of s 
170DE(1). They reflect the reasoning of the High Court in Victoria v The 
Commonwealth and the actual language of the provision and of the convention it 
implements, language which turns on the existence or otherwise of a "valid reason" 
connected with or based on the matters specified. It was suggested in argument in the 
present appeal that the view taken in Cosco Holdings gave no weight to the meaning 
of the word "valid". We think the passages we have quoted are sufficient to 
demonstrate that this is not so. The judgments in Cosco Holdings, following the 
majority of the High Court in Victoria v The Commonwealth, simply draw attention to 
what it is that must be valid. Indeed, Northrop J says (at 145), following the High 








[2016] FWCFB 4218

9

Court, that the word is "the cornerstone of the Act". But the section requires the 
employer's reason to be valid, and thereby focuses upon the employer and the basis of 
his decision, rather than upon its consequences for the employee. What has to be 
examined is the validity of the reason, and its connection with the employee's capacity 
or conduct or its basis in operational requirements of the employer. In a case, such as 
the present, where conduct is relied on, that will entail a consideration of the nature of 
the conduct in the full context in which it actually occurred. But it will not, according 
to the decision in Cosco Holdings (and see also Evans v Alto Parts Pty Limited (1998) 
77 IR 401 at 404), entail reference to factors personal to the employee, bearing on the 
nature or extent of the hardship caused by the dismissal. In this, too, Cosco Holdings
was following the High Court, the majority of which, in a passage we have quoted, 
condemned the "harsh, unjust or unreasonable" criterion just because it "goes not to 
the reason for termination but to the overall effects of the termination", and thereby 
"does not implement the terms of the Convention".”

[13] Under the current legislative regime it is trite to observe that s.387 requires the 
Commission to consider each of the matters referred to in paragraphs (a) to (h). Each must be 
treated as matters of significance in the decision making process insofar as each is relevant to 
the factual circumstances of the particular case. In the context of a termination related to the 
conduct of an employee, a Full Bench, relying on a decision of the Federal Court, has 
expressed the task as follows (in King v Freshmore (Vic) Pty Ltd):16

“[21] In circumstances where the termination related to the conduct of the employee - as 
is the case in relation to Mr King - the Commission must make findings in respect of 
the following matters:

 whether there was a valid reason for the termination (s.170CG(3)(a));

 whether the employee was notified of that reason (s.170CG(3)(b)); and

 whether the employee was given an opportunity to respond to that reason 
(s.170CG(3)(c)).

[22] Paragraph 170CG(3)(a) relevantly speaks of "whether there was a valid reason . . 
. related to the . . . conduct of the employee." In Edwards v Giudice, Moore J made the 
following observations about the Commission's obligations under this paragraph:

"The paragraph requires consideration of the validity of the reason when the 
reason is, relevantly, based on conduct of the employee. It is, in my opinion, 
difficult to avoid the conclusion that the Commission is obliged in such 
circumstances to investigate in the inquiry process contemplated by 
s.170CG(3) whether the conduct relied on occurred as a necessary step in the 
process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified 
termination. The reason might not be valid because the conduct did not 
occur or it did occur but did not justify termination. An employee may 
concede in an arbitration that the conduct took place because, for 
example, it involved a trivial misdemeanour. In those circumstances the 
employee might elect to contest the termination in the arbitration on the 








[2016] FWCFB 4218

10

basis that the conduct took place but the conduct did not provide a valid 
reason and perhaps also by relying on the other grounds in paras (b) to 
(e). However an employee may not concede or admit, for the purposes 
of the arbitration, that the conduct occurred or may not be prepared to 
accept that the Commission could assume the conduct occurred. In 
either situation the employee would be putting in issue whether the 
conduct occurred. In my opinion the Commission must, in these 
circumstances, determine whether the conduct occurred as a step in 
resolving whether there was a valid reason."17

[23] When a reason for a termination is based on the conduct of the employee, the 
Commission must, if it is an issue in the proceedings challenging the termination, 
determine whether the conduct occurred. The obligation to make such a determination 
flows from s.170CG(3)(a). The Commission must determine whether the alleged 
conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to 
be determined by the Commission on the basis of the evidence in the proceedings 
before it. The test is not whether the employer believed, on reasonable grounds after 
sufficient enquiry, that the employee was guilty of the conduct which resulted in 
termination.18”

[14] In the context of capacity, a Full Court of the Federal Court was called upon to 
consider the approach to determining whether a valid reason exists in Crozier v Australian 
Industrial Relations Commission.19 The Court said:

“The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the 
work he or she is employed to do. A reason will be "related to the capacity" of the 
employee where the reason is associated or connected with the ability of the employee 
to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's 
contention that there can be no "valid reason ... related to the capacity ... of the 
employee" where an employee is working to his or her personal best, even though this 
personal best is less than what is required to do the job for which he or she is 
employed. Plainly, there can be a valid reason for the termination of an employee's 
employment where he or she simply does not have the capacity (or ability) to do the 
job. In this case, the Full Bench found that Mr Crozier knew that "the main focus of his 
position was to generate new business"; that he failed to meet this objective; and that 
his failure was not due to external factors but to a lack of capacity (or ability) as a sales 
representative (at 150 & 152-153). In making these findings it acted within 
jurisdiction, and we detect no jurisdictional error in its approach.”

[15] A number of Full Benches of the Commission and its predecessor have considered the 
approach to considering whether a valid reason relating to capacity exists in a given case. In 
Dundovich v P&O Ports20 a Full Bench was not satisfied that  there was a valid reason for 
termination because the employee, who was absent on workers compensation, was not 
assisted enough to return to work. The Full Bench said that the employer acted too quickly in 
moving to terminate and was not persuaded by the reasons advanced by the employer as to 
why it acted when it did.








[2016] FWCFB 4218

11

[16] Other cases have considered the question when there was conflicting medical 
evidence. Senior Deputy President Cartwright in Ermilov v Qantas Flight Catering Limited21

said the following:

“[29] In my view there was a valid reason for the termination related to the capacity of 
the Applicant (s.170CG(3)(a)). That reason was that the Applicant was assessed unable 
to perform the duties of his contracted position as an ASO Level 2 and the Respondent 
was not able to create a new role for him.

[30] Under the NSW Workplace Injury Management and Workers Compensation Act 
1998, an employer liable to pay compensation to an injured worker is obliged to 
provide "suitable employment", unless it "is not reasonably practicable."22 "Suitable 
employment" is defined as "work for which the worker is suited, having regard to..." a 
number of factors, including (among others) the nature of the worker's incapacity and 
pre-injury employment, and the details in the medical certificate supplied by the 
worker. When Allianz denied workers compensation liability in respect of the 
Applicant's third injury (which the Applicant did not contest), the Respondent was no 
longer obliged to provide the Applicant "suitable duties". It applied a policy that ASO 
Level 2 employees are required to perform all the duties of the role and that the 
Applicant was to be capable to rotate through the various tasks within all sections of 
the Wash Department. I am satisfied that this was a reasonable policy in deciding how 
to run its business and no argument has been put that the Respondent was precluded 
from making such a decision. Rather, the Respondent was faced with an apparent 
conflict in the medical opinion about whether the Applicant could perform the duties 
of the role.

[31] As a result of the inconsistency between the medical information and responses of 
the Applicant's doctors, Mr Sharratt preferred the reports of Dr Ng and Ms Martin. He 
gave evidence that, having the information of the Applicant's doctors, Allianz, 
WorkFocus and Dr Ng, he had to "consider all of the information that was put in front 
of me and make a considered opinion based on all the information."23 When asked 
about Dr Kuzmanovski's response, Mr Sharratt said that Dr Kuzmanovski dismissed 
the WorkFocus report and "failed to comment on the nature of the work that was 
required" which was the focus of QFCL's concerns.24 Given the medical and 
occupational therapist's reports and the fact that the Applicant had sustained a third 
injury to his lower back whilst performing work in the ASO Level 2 position in the 
context of the determination from the District Court of NSW of a 26% impairment to 
the Applicant's lower back, Mr Sharratt determined with Ms Stephens that the 
Applicant's employment was to be terminated.25

[32] The Applicant argued that the Respondent should have preferred the later 
opinions of the Applicant's treating doctors, Dr Kuzmanovski and Dr Loefler. The 
Applicant also argued that the Respondent should have found suitable duties for him 
or that he should have been given a trial to demonstrate his capacity to work. In my 
view, it was reasonable for the Respondent to have concerns about the Applicant's 
capacity to do the full duties of an ASO Level 2 in the Wash Department and to 
resolve the apparent conflict in medical opinion in the manner it did. Dr Loefler's 
assessment was contained in a single medical certificate and the brief report made 
available on 31 July, while Dr Kuzmanovski's response on 29 July 2003 was, in my 
view, difficult to prefer over Dr Ng's reports. It was argumentative and did not address 








[2016] FWCFB 4218

12

the content of the WorkFocus report to which QFCL sought a response or comment on 
the nature of the work. In the light of all the reports, the Respondent did not believe 
that a trial was appropriate to determine whether the Applicant was physically able to 
perform the work.26 On the basis of Ms Martin's reports, it determined it had no other 
role which matched the Applicant's capacity. In the circumstances of this case, it 
cannot be said that the reason for termination of the Applicant's employment was 
capricious, fanciful, spiteful or prejudicial. In my view, it was sound, defensible or 
well founded.27 That view is not changed with the benefit of the additional evidence 
available to the Commission from the medical practitioners called in this case.28 I find 
that there was a valid reason for the termination related to the capacity of the 
Applicant.”

[17] An appeal against His Honour’s decision was unsuccessful. The Full Bench 
concluded:29

“[40] In an appeal against the exercise of a discretion the question is whether the 
decision is materially affected by error. Grounds 2 to 6 each allege that the decision 
was made in error by reason of the fact that the Commission failed to make a particular 
finding either about the nature of the appellant's job or about the appellant's ability to 
perform the job. We find these grounds less than compelling.

[41] The Senior Deputy President had evidence before him regarding the nature of the 
duties the appellant was expected to perform as well as his capacity to perform them. 
The Senior Deputy President heard evidence from a number of doctors, much of it 
conflicting and some of it inconsistent, consultants and company officers. He decided 
that there was a valid reason for the termination of the appellant's employment based 
on his incapacity to do the job required of him. He found that the respondent's policy 
of rotating all of the employees in the wash department through the various tasks in all 
of the sections of the department was a reasonable one and that the appellant was not 
able to do all of those tasks. Notwithstanding the submission on appeal, those findings 
are adequately supported by the evidence to which we were referred by Ms Mckenzie. 
Nothing put to us in relation to grounds 2 to 6 raises a sufficiently arguable case of 
error in the decision.”

[18] In the case of Ms V v Ambulance Victoria, Commissioner Smith (as he then was) 
decided that there was not a valid reason for termination based on capacity. He said:30

“[40] I turn firstly to consider 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). 

[41] The termination of employment related directly to the capacity of Ms V. 
Ambulance Victoria reached the conclusion that Ms V could not perform the inherent 
requirements of her role and that her ongoing condition is unlikely to imminently 
resolve.

[42] This conclusion was said to be based upon the medical evidence. This is not the 
state of the medical evidence, as it is less certain than that stated by Ambulance 
Victoria. Whilst Dr McDonough was concerned about a continuing ‘poor mental state’ 
his conclusion was that a slow, partial return to some duties may be possible. 








[2016] FWCFB 4218

13

Dr McDonough was of the view that Ms V was not fit to return to full operational 
duties without restrictions. Those restrictions related to right knee arthritis and the 
potential for additional stressful workplace situations overwhelming her. The findings 
of Associate Professor Mendelson are more positive. He concluded that Ms V should 
resume duties on a gradual basis following an appropriate period of training and under 
a period of supervision. He further stated that there was no indication of any 
diagnosable mental disorder. However Associate Professor Mendelson did express 
some caution as to whether or not she would be particularly sensitive or vulnerable to 
the usual stressors working as an ambulance paramedic. 

[43] This has been a difficult matter for all concerned. I have no doubt that Ambulance 
Victoria seeks to make the right decision to protect its employees and the public it 
serves. 

[44] However I have not been persuaded that there was a valid reason for the 
termination of Ms V. 

[45] I do so for these reasons: 

 There has not been a clear finding that Ms V cannot perform the inherent 
requirements of the job by the independent medical practitioners;

 There is no finding by the independent medical practitioners that any concerns they 
expressed will not imminently resolve;

 Ms V has on several occasions, since her accident, returned to operational work 
without incident; and

 The reason she was suspended from duty (the use of methadone) and from which she 
didn’t immediately seek to return, was not finally found by Dr Gijbers (sic) as an 
inhibiting factor to the normal performance of her duties.”

[19] The decision was upheld on appeal. The Full Bench said:31

“[16] Having regard to the reasons of Commissioner Smith in relation to the medical 
evidence, read as a whole, we are not persuaded that his conclusion that “There has not 
been a clear finding that Ms V cannot perform the inherent requirements of the job by 
the independent medical practitioners” can be characterised as the application by him 
of an erroneous test in determining whether there was a valid reason for the 
termination.

[17] It is evident from the Commissioner’s reasons, read as a whole, that the issue 
arising out of the medical evidence was whether the evidence supported a finding that 
the respondent could not perform the inherent requirements of her role. He assessed 
the medical evidence, noting that one specialist was concerned about a continuing 
“poor mental state”, whilst the other found that that there was no indication of any 
diagnosable mental disorder. He noted that whilst one found that the respondent was 
not fit to return to full operational duties without restrictions but that a slow, partial 
return to some duties may be possible, the other concluded that the respondent should 
resume duties on a gradual basis following an appropriate period of training and under 








[2016] FWCFB 4218

14

a period of supervision. Having assessed the medical evidence, the Commissioner was 
not persuaded that it supported a finding that there was a valid reason for the 
termination for a number of reasons stated32 and having regard to the processes which 
the appellant implemented for managing the resumption of normal operational duties 
of an employee returning to work after an extended absence. The finding challenged 
by the appellant is one of the conclusions drawn from the evidence by the 
Commissioner which supported his finding that there was no valid reason for the 
termination, rather than a separate and determinative test.”

[20] In J Boag and Son Brewing Pty Ltd v Button a Full Bench said:33

“[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.

[23] In X v Commonwealth34 the High Court was concerned with an allegation of 
discrimination on the grounds of disability contrary to the Disability Discrimination 
Act 1992 (Cth) by a soldier who had been dismissed from the army on account of 
being HIV positive. Section 15(4) of that Act contains an exemption from liability if 
the person “would be unable to carry out the inherent requirements of the particular 
employment”. Gummow and Haynes JJ addressed the notion of “inherent” 
requirements:35

“[102] The reference to "inherent" requirements invites attention to what are the 
characteristic or essential requirements of the employment as opposed to those 
requirements that might be described as peripheral. …[T]he requirements that 
are to be considered are the requirements of the particular employment, not the 
requirements of employment of some identified type or some different 
employment modified to meet the needs of a disabled employee or applicant 
for work.”

[24] Although the High Court was concerned with the meaning of the expression 
“inherent requirements” in a statute, this analysis is equally applicable to a 
consideration of what constitutes the “inherent requirements” of a position as a valid 
reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU36 a Full Bench 
noted:

“[124] The phrase "inherent requirements" has been judicially considered to 
mean something that is essential to the position. [See generally X v The 
Commonwealth (1999) 200 CLR 177] To determine what are the inherent 
requirements of a particular position usually requires an examination of the 
tasks performed, because it is the capacity to perform those tasks which is an 
inherent requirement of the particular position. [Qantas Airways Ltd v Christie
(1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in 
Qantas Airways Ltd v Christie:

"A practical method of determining whether or not a requirement is an 
inherent requirement, in the ordinary sense of that expression, is to ask 








[2016] FWCFB 4218

15

whether the position would be essentially the same if that requirement 
were dispensed with." [ibid. at 295]”

[25] In Qantas Airways Ltd v Christie37 Gaudron J, with whom Brennan CJ agreed, 
noted that the expression “inherent requirements”, in its natural and ordinary meaning 
“directs attention to the essential features or defining characteristics of the position in 
question.”38 Her Honour noted:39

“[33] There may be many situations in which the inherent requirements of a 
particular position are properly identified as the characteristic tasks or skills 
required for the work done in that position. But that is not always so. In the 
present case, the position in question is that of captain of B747-400 aircraft 
flying on Qantas' international routes, a matter as to which there is no real 
dispute between the parties. To identify the inherent requirements of that 
position as "the characteristic tasks or skills required in being a pilot", as did 
Marshall J in the Full Court, is to overlook its international character.

[34] Moreover, the international character of the position occupied by Mr 
Christie cannot be treated as irrelevant simply because it derives from his 
contract of employment or from the terms and conditions of the industrial 
agreements which have, from time to time, governed his employment with 
Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent 
requirement is something that is essential to the position. And certainly, an 
employer cannot create an inherent requirement for the purposes of s 170DF(2) 
by stipulating for something that is not essential or, even, by stipulating for 
qualifications or skills which are disproportionately high when related to the 
work to be done. But if a requirement is, in truth, essential, it is irrelevant that 
it derives from the terms of the employment contract or from the conditions 
governing the employment relationship.”

[26] Gaudron J also noted40 that the fact that a requirement is stipulated in an 
employment contract does not, of itself, direct an answer one way or another as to the 
question whether it is an inherent requirement of the particular position in question. 

[27] McHugh J drew attention to the distinction between an employee’s job and their 
position:41

“[72] In my opinion, however, there is a distinction between a person's job and a 
person's position and that distinction may sometimes prevent the Convention 
jurisprudence on Art 1(2) from being applicable. The term "a particular job" in 
Art 1(2) of the Discrimination Convention has been construed by reference to 
the preparatory work and the text of the Convention to mean "a specific and 
definable job, function or task" and its "inherent requirements" those "required 
by the characteristics of the particular job"[66]. A person's job is therefore 
primarily concerned with the tasks that he or she is required to perform. No 
doubt the term "job" is often used to signify a paid position of employment. 
But in the context of determining the requirements of a job, it seems more 
natural to regard the term as referring to particular work or tasks that the person 
must perform. A person's position, on the other hand, is primarily concerned 
with the level or rank from which he or she performs those tasks. Position 








[2016] FWCFB 4218

16

concerns rank and status. What is required of a person's position, however, will 
usually require an examination of the tasks performed from that position. That 
is because the capacity to perform those tasks is an inherent requirement of the 
particular position.

[73] In most cases, the distinction between the requirements of a position and 
the requirements of a job will be of little significance. But it is a mistake to 
think that there is no distinction between "a particular position" and "a 
particular job". In some cases the distinction between the inherent requirements 
of a particular position and those of a particular job, although subtle, may be 
material. This is often likely to be the case where qualifications are concerned, 
particularly those qualifications that are not concerned with the physical or 
mental capacity to perform the tasks involved in the position. Thus to be an 
American born citizen is an inherent requirement of the position of President of 
the United States, but it is not an inherent requirement of the "job" of President 
if that term refers to the work done by the President.”

[28] McHugh J endorsed the proposition that “whether a requirement was an inherent 
requirement of a particular employment was a matter which should be determined 
according to the dictates of common sense and as a matter of objective fact rather than 
as a matter of mere speculation or impression.”

[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”.42 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.43 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.44 But, again, there may be circumstances where 
such incapacity does not constitute a valid reason in the relevant sense.45

[21] In the case of Jetstar Airways Pty Limited v Neetson-Lemkes a Full Bench described 
the test as follows:46

“[44] It is only necessary for us to consider the first of these appeal submissions. 
Section 387 of the Act requires the Commission, when considering whether a 
dismissal was harsh, unjust or unreasonable, to take into account a number of specified 
matters. The first matter is as follows:

“(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);”

[45] The requirement to take this matter into account means that not only must it be 
considered but it must be treated as a matter of significance in the process of deciding 
whether the dismissal was unfair.47 In this matter, as earlier stated, the reason for the 








[2016] FWCFB 4218

17

dismissal relied upon by Jetstar was a capacity based one, namely that Ms Neeteson-
Lemkes was unable to perform the inherent requirements of her safety critical role 
then or in the future, and that there were no reasonable adjustments which could be 
made to allow her to perform that role. Section 387(a) therefore required the 
Commissioner to consider and make findings as to whether, at the time of the 
dismissal, Ms Neeteson-Lemkes suffered from the alleged incapacity based on the 
relevant medical and other evidence before her and, if so, whether there were any 
reasonable adjustments which could be made to her role to accommodate her. Those 
findings then need to be considered and treated as matters of significance in the 
process of deciding whether Ms Neeteson-Lemkes’s dismissal was, to use the general 
rubric, unfair.”

[22] After allowing the appeal and in the course of re-determination the Full Bench said:

“[55]  …On one view, those post-dismissal expert opinions, if accepted, would 
demonstrate that at the time of the dismissal Ms Neeteson-Lemkes did have a future 
capacity to return to her full role, and to that extent Jetstar did not have a valid reason 
to dismiss her based upon a prediction otherwise. However, it is well-established that, 
although the validity of a reason for dismissal may be determined by reference to facts 
discovered after the dismissal, those facts must have existed at the time of dismissal.48

….Applying this principle, we do not consider it permissible to take into account the 
expert opinions to which we have referred in assessing the validity of Jetstar’s reason 
for dismissal because they were clearly founded upon a factual situation which came 
into existence well after the date of Ms Neeteson-Lemkes’s dismissal, namely her state 
of health at the time she was assessed. The validity of that part of Jetstar’s reason for 
dismissal which concerned her future capacity to perform her duties must be assessed 
by reference to her state of health, and the expert opinions expressed as to her state of 
health, as they were at the time of her dismissal. 

[56] The evidence does not demonstrate that any health professional had positively 
expressed the view that Ms Neeteson-Lemkes, based upon her state of health at or 
before the dismissal, would be able to return to full duties at a future time. Dr 
Walker’s view, to which we have earlier referred, was that she was permanently 
incapable of returning to her full duties. His opinion was of course contested at the 
hearing, but even those practitioners who took a contrary view concerning Ms 
Neeteson-Lemkes’s diagnosis and prognosis had not at the time of dismissal advanced 
the position that, based on her state of health at that time, she would be able to perform 
her full role at some future time. As earlier stated, the “Psychological/Counselling 
Management Plan” prepared by Mr McKinley in about February 201349, shortly after 
the dismissal, stated that in his opinion Ms Neeteson-Lemkes would not have the 
capacity to return to “pre-injury activity”, although of course by the time of the 
hearing before the Commissioner he had changed his opinion based upon a later 
assessment of Ms Neeteson-Lemkes. Dr Saunders had recommended a return to work 
based on restricted hours, with “gradual increase in hours when certified”, but never 
gave a positive prognosis for a full return to work prior to the dismissal. Dr Farago did 
not see Ms Neeteson-Lemkes between 2011 and 2013, and Mr Cohen did not see her 
before 2013. Therefore it can at least be said that Jetstar’s view at the time of dismissal 
that Ms Neeteson-Lemkes would not be able to return to work her full duties as a 
Jetstar flight attendant was not contrary to any medical opinion in existence at or about 
that time.








[2016] FWCFB 4218

18

[57] The evidence did not identify that there was any reasonable modification to the 
role of a full-time flight attendant that could be made to facilitate Ms Neeteson-
Lemkes’s return to that role. It was the emergency and safety-critical aspects of that 
role which were of most concern given Ms Neeteson-Lemkes’s work and medical 
history, and there was no suggestion that any modification in that area was possible.

[58] Therefore we are satisfied that Jetstar had a valid reason for the dismissal of Ms 
Neeteson-Lemkes based upon the medical advice it had received or which existed at 
the time of the dismissal. We note that in J Boag and Son Brewing Pty Ltd, the Full 
Bench said:50

“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.”

[59] That proposition was not expressed as a hard and fast rule for every case, because 
as the Full Bench went on to acknowledge there may be particular facts in particular 
cases which dictate a different conclusion. The nature of the unfair dismissal 
jurisdiction is such that it is generally not appropriate to try to express binding rules 
about what conclusions should be reached in respect of the s.387 matters in relation to 
generalised factual scenarios. That having been said, we consider that the Full Bench’s 
proposition in J Boag and Son Brewing Pty Ltd can reasonably be applied to the facts 
of this case.”

[23] Jetstar took into account that, in some cases of an employee’s capacity, it is 
appropriate to consider the matter of whether reasonable adjustments can be made to a role in 
order to accommodate an employee.  The question of “reasonable adjustments” or “reasonable
accomodations” stems, of course, from workers compensation and anti-discrimination 
jurisdictions.  In unfair dismissal matters the questions for consideration by the tribunal are 
those set out in s.387.  The matter of reasonable adjustments or accomodations may be a part 
of such considerations, but do not replace those questions.  In Jetstar, the Full Bench not only 
applied the principle within J Boag and Son Brewing Pty Ltd that 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, but held consideration of any 
adjustments to be within that constraint:

“[53] We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. 
Consideration of the validity of that reason requires three interconnected elements to 
be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the 
inherent requirements of her role as at the date of dismissal; secondly, whether Ms 
Neeteson-Lemkes would be able to perform the inherent requirements of her role at 
some time in the future; and thirdly, whether there was some reasonable adjustment 
which could be made to her role to accommodate any current or future incapacity. In 
accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v 
Allan John Button, a reason for dismissal based upon an injured employee’s incapacity 
to perform the inherent requirements of his or her position or role must be assessed 
against the requirements of the substantive position or role, not as it may be modified 
or restricted in order to accommodate the employee’s injury.”








[2016] FWCFB 4218

19

[24] Such position is consistent with that articulated within Qantas v Christie, in which the 
question is posed; would the position be essentially the same if a requirement were dispensed 
with?

[25] It is possible to extract the following principles from the above cases:

 Capacity cases based on medical opinions are different to misconduct cases. In 
capacity cases the employer is usually required to have regard to an expert opinion 
or opinions – not to make an independent assessment of what is essentially a medical 
question. In misconduct cases, an employer is required to make a finding of whether 
the employee engaged in the conduct concerned. 

 In an unfair dismissal case the relevant factual matrix must be considered by the 
Commission. In a case where the reason for dismissal is misconduct the Commission 
must consider whether the conduct occurred based on the evidence before the 
Commission. In a case where the reason for dismissal relates to capacity, the 
Commission should have regard to the medical opinions at the time of the decision 
to dismiss.

 The existence of a valid reason for termination based on capacity depends on 
whether the reason was sound, defensible and well founded – and not capricious, 
fanciful, spiteful or prejudiced - considered in the context of the object of ensuring a 
‘fair go all round’. 

 It is appropriate to have regard to medical assessments that relate to the capacity to 
perform the full duties of the position.

 It is also appropriate to have regard to whether reasonable adjustments may be 
made to a person’s role in order to accommodate any current or future incapacity. 
However such consideration of what may be reasonable adjustments will be within 
the context of the substantive position or role, not as it may be modified or 
restricted in order to accommodate the employee’s injury.

 The absence of a clear finding by an appropriate medical practitioner that the 
employee cannot perform the inherent requirements of the job will suggest that there 
is not a valid reason for termination based on capacity. 

 A decision based on the existence of a medical opinion that an employee cannot 
perform the inherent requirements of a job is suggestive of a valid reason because 
such a decision is sound, defensible and well founded.

[26] Consideration of English authorities in unfair dismissal cases should be treated with 
caution because of some differences in the legislation and a divergence of approach in 
assessing the reasonableness of a reason for dismissal. However, in the context of capacity 
issues and the proper role of the tribunal, there is a distinct commonality in approach. In 
Viridor Waste v Edge,51 a case concerning capacity, Langstaff J said:

“24. In determining claims of unfair dismissal, the statutory focus of the Tribunal is 
required to be on the reasoning of the employer. Where the Tribunal is satisfied that 
the employer’s belief in the culpability of an employee is genuine the question is then








[2016] FWCFB 4218

20

not whether on all the information available to the Tribunal at the time of the hearing 
that belief had reasonable grounds to support it, but whether the material which was 
before the employer at the time of its decision was such as to provide a reasonable 
basis for the belief. The difference between the two is that the former is capable of 
taking into account information which the employer did not have. If the employer’s 
investigation of what had taken place was reasonable, its belief cannot be assessed on 
the basis of information which might have come to light if only a wider and more far 
reaching investigation had been undertaken. It has to be judged on the material the 
employer actually had. It is necessary for a Tribunal to base its decision clearly on that 
material. Mr Crosfill is right in his submission that in paragraph 29 of the Reasons 
here, however, there is no reference to the particular information which was before Mr 
Newman of Viridor, who took the relevant decisions.

25. The next question for a Tribunal, having identified the material which was 
considered by the employer in reaching its view, is not what conclusion it would have 
formed from the information, but whether that information taken as a whole 
reasonably supported the conclusion to which the employer actually came. If a 
Tribunal asks what it would have decided, given the information, it is in danger of 
substituting its own decision for that of the employer. Though substitution arguments 
are all too easily asserted, and it must always be borne in mind that a Tribunal’s task is 
to make an assessment overall as to whether a dismissal is or is not reasonable – and if 
it comes to the latter view it will plainly be reaching a decision different from that of 
the employer – its task is always to assess the employer’s decision, and not to make its 
own other than by way of commentary upon the employer’s reasoning. The danger of 
leaving out of account any specific reference to the material upon which the 
Respondent actually based its view is that a Tribunal then examines all the material for 
itself and is drawn into reaching its own opinion not as to what was permissible on the 
basis of that material, but what it would itself conclude on all the material now 
available to it.”

[27] The Deputy President’s decision in this matter reveals two significant errors. First, 
while professing to apply the test formulated in Selvachandran, we do not believe that the test 
was properly applied. The approach of the Deputy President was to hear evidence from the 
two doctors and on the basis of their evidence, form a view as to which doctor’s view was 
preferred. The determination of whether a reason is sound, defensible and well founded, is not 
a standard of perfection, and does not require the Commission to agree with the reason based 
on subsequent assessments. To assess the evidence well after the event, and have regard to 
circumstances and opinions expressed after the termination raises the bar well above the 
Selvachandran test and pays regard to circumstances that were irrelevant to the assessment of 
the reason for termination. In other jurisdictions, courts and tribunals need to determine 
whether an employee can perform the inherent requirements of a job. The task in this case 
was to determine whether there was a valid reason for the dismissal – whether the employer’s 
reason was sound, defensible and well-founded.

[28] In our view, this error was compounded by the Deputy President’s treatment of the 
evidence. Professor Jaarsma was Mr Norman’s treating surgeon. His advice related to Mr 
Norman’s recovery from the injury he sustained and the surgery performed. He is not an 
occupational physician. He made no occupational assessment of Mr Norman. He was not 
given a copy of the job description and paid no regard to the job requirements set out therein. 








[2016] FWCFB 4218

21

The focus of his report was the risk to Mr Norman’s femurs – which were broken in Mr 
Norman’s sky diving accident.

[29] Dr Graham, an independent occupational physician was provided with details of the 
job requirements. He was asked whether, in his assessment, Mr Norman could perform the 
inherent requirements of the role. Based on an assessment of his overall physical restrictions 
he said that Mr Norman should “not work in any safety critical situation where balance and 
stability are important. He should avoid working in awkward positions and avoid squatting. I 
would also recommend that he avoid climbing ladders and avoid frequent use of steps or 
stairs.” His assessment provided to the employer prior to the dismissal was that it is unlikely 
that Mr Norman will be able to perform the inherent requirements of the role in the near 
future.

[30] After Mr Norman produced a medical certificate from Professor Jaarsma 
approximately three weeks later, Lion Dairy requested that Dr Graham review his opinion. Dr 
Graham confirmed his view and assumed that the medical certificate related to recovery from 
the injury, not the different question of ability to perform the inherent requirements of the job. 
His assumption was correct. The only medical professional that assessed Mr Norman’s 
overall capacity in relation to the job requirements of his role was Dr Graham.

[31] Mr Norman was employed by Lion Dairy as a maintenance fitter. In that capacity he
was required to

(a) work a three week shift pattern, which involved working morning shifts for one week 
and afternoon shifts for the remaining two weeks. For the morning shifts, Mr Norman 
was required to begin work at 6.00 am and provide the site with a 'health check' 
(which basically required him to ensure the plant started up properly). For the 
afternoon shifts, Mr Norman began with a handover from the Maintenance Fitter who 
performed the morning shift and was required to ensure the plant was running, and 
subsequently shut down, properly;

(b) undertake preventative maintenance tasks, which included valve maintenance, 
machine servicing, oil change, trade waste plant maintenance, processing area 
maintenance (which involved maintaining separators, homogenisers and milk 
processing machines),maintenance of filling and packing machines, as well as the 
robot in the cold room;

(c) undertake targeted preventative maintenance on 'Maintenance Day';
(d) perform unplanned tasks (for example, when something breaks or fails);
(e) work in confined spaces (for example, inside vessels, tanks or silos); and
(f) undertake manual handling tasks, including lifting equipment up and down stairs.

[32] On any given day there is one maintenance fitter and one electrician maintaining the 
Salisbury plant (except for Maintenance day when there are two of each).

[33] The Deputy President’s reasoning is set out above. The Deputy President rejected the 
evidence of Dr Graham that Mr Norman would not be fit to return to work within 3 months of 
5 March 2015. As to the ability to perform the inherent requirements of the job the Deputy 
President preferred the evidence of Professor Jaarsma. The Deputy President indicated the 
evidence of Professor Jaarsma that she relied upon. However Professor Jaarsma did not give 
evidence of any reliable kind on Mr Norman’s ability to perform the inherent requirements of 








[2016] FWCFB 4218

22

the role. His opinion was confined to the recovery from the injury he treated. Dr Graham’s 
opinion related primarily to a separate degenerative condition.

[34] The errors in the assessment of the evidence highlight the perils of the overall 
approach of the Deputy President. In cases such as the present, the Commission is not in a 
position to make an expert medical assessment. An employer is entitled, and expected, to rely 
on expert assessments. If there is some apparent conflict in medical opinions it will usually be 
incumbent on the employer to resolve that conflict. In this case the employer asked the 
occupational physician, Dr Graham, to conduct a reassessment with the benefit of Professor 
Jaarsma’s medical certificate. Dr Graham confirmed his view that Mr Norman is unlikely to 
be able to perform the inherent requirements of the role in the near future. 

[35] As we have observed, Dr Graham was the only doctor to provide an assessment of Mr 
Norman’s overall capacity, and the only doctor to provide an assessment about Mr Norman’s 
capacity to perform the inherent requirements of his role. In the context of providing a “fair 
go all round” it is difficult to imagine what more an employer could do than Lion Dairy did in 
this case. Accepting the most relevant and comprehensive medical advice clearly should have 
led to a conclusion that Lion Dairy’s reason for termination was sound, defensible and well 
founded.

[36] In our view, the errors in the approach and analysis of the Deputy President vitiated 
the discretion vested in the Commission. It is clear in our view that the Deputy President 
should have found that there was a valid reason for the dismissal. It is appropriate therefore 
that we allow the appeal and quash the decision and order of the Deputy President. We 
propose to re-determine the question of whether the termination was harsh, unjust or 
unreasonable.

Redetermination

[37] As we have indicated above we find that there was a valid reason for the dismissal of 
Mr Norman based on the medical advice that Lion Dairy received. The reason was sound, 
defensible and well-founded.

[38] That reason is set out in Lion Dairy’s correspondence to Mr Norman dated 15 April 
2015 in which it stated that he was no longer able to perform the inherent requirements of his 
position. That letter referred to its reason being formed after advice from Dr Graham on 11 
and 30 March 2015.

[39] The report from Dr Graham dated 11 March 2015 was based on an extensive set of 
materials about Mr Norman’s duties and the physical requirements for those duties. The 
evidence shows that Dr Graham took those materials into account and his physical 
examination of Mr Norman into account in preparing his report. In that report he stated that 
Mr Norman was unfit to perform all the inherent requirements of the job of a maintenance 
fitter. The report indicated that Mr Norman’s prognosis was very difficult to suggest and that 
“[h]e is gradually improving but it is not possible to say how far he will continue to improve. 
In addition there must be a significant degree of degenerative change in the hips and knees 
which will limit recovery.” In response to a question posed by Lion Dairy about whether any 
restrictions or reduced functional capacity might be of either a temporary or permanent 
nature, Dr Graham advised that “it is not possible to say whether they are temporary or 
permanent. It is hoped that it will improve further but this cannot be guaranteed.” Dr 








[2016] FWCFB 4218

23

Graham’s report of 30 March 2015 was sought by Lion Dairy after a meeting between the 
company and Mr Norman on 25 March 2015 in which Mr Norman brought forward a 
certificate of sickness from Professor Jaarsma. That certificate stated only that Mr Norman 
had been suffering from a “femur fracture non-union left” and that he would be able to return 
to work on 30 March 2015.

[40] Dr Graham’s report of 30 March 2015 indicates surprise at Professor Jaarsma 
certification that Mr Norman would be fit to resume work on 30 March 2015 and he says “I 
would assume that he is indicating fitness to return to some form of work but I would not 
imagine that he is considering Mr Norman fit to return to his full duties as a maintenance 
technician at that time.”

[41] Although it is not explicitly referred to as being a consideration within Lion Dairy’s 
termination letter, the evidence allows a finding that it considered the available material from 
Professor Jaarsma. Further, it sought permission from the applicant to speak directly with 
Professor Jaarsma but that request was denied.

[42] Lion Dairy’s termination letter records that it had considered whether reasonable 
modifications could be made in order for Mr Norman to perform the inherent requirements of 
his role and whether he could be moved to another role, and had concluded that neither could 
be done. While the basis of that decision was challenged in the original hearing, it was not 
shown to be an implausible or incorrect statement.

[43] In totality Lion Dairy’s reason for dismissal was a valid reason properly based upon 
the evidence available to it when it made its decision, having properly taken account of the 
material contrary to its own views.

[44] We agree with the Deputy President that the factors in s.387 (d), (e), (f) and (g) either 
have no relevance or do not attract any weight in this case.

[45] The evidence before the Commission establishes that Mr Norman was given the 
medical reports on which Lion Dairy formed its view and explained that it was considering 
termination of employment as a result of the reports. The Deputy President found that even 
though more time to respond was not sought by Mr Norman, his emotional state and the 
Easter period in which the discussions occurred meant that the deadline it imposed was 
unreasonable. The Deputy President found that Mr Norman was advised of the reason for 
dismissal but was not given a reasonable opportunity to respond to those reasons. 

[46] With respect, the reasonableness of the opportunity is not part of the criterion in 
s.387(c) unless the facts indicate that no opportunity at all was given. The insertion of a 
qualitative assessment into the legislation alters the test in an impermissible way. The test has 
been described as being an opportunity to defend by providing a response that might result in 
the employer deciding not to terminate the employment if the defence is of substance.52 More 
time was not sought by Mr Norman; there was no request for a week or a month to be 
provided in order for Professor Jaarsma or another specialist to provide further information 
for Lion Dairy’s consideration.  We find that Mr Norman was given an opportunity to respond 
to the reason. 

[47] The reasonableness of the opportunity can be legitimately taken into account as 
another matter considered of relevance under s.387(h). In the circumstances of this matter, Mr 








[2016] FWCFB 4218

24

Norman had been absent form work for over one year, he was sent for medical assessment by 
an occupational physician. He was provided with a show cause letter indicating the nature of 
the medical advice. Mr Norman submitted an alternative medical certificate. The employer 
then conducted a further show cause meeting and provided a copy of Dr Graham’s 
supplementary report. After receiving Mr Norman’s response it sought to speak with 
Professor Jaarsma and that request was refused. We do not consider that any further 
opportunity would have altered the situation. 

[48] We agree with the assessment of other matters in paragraphs [85]-[89] of the Deputy 
President’s decision.

[49] As the termination of employment was for a valid reason, an opportunity to respond to 
that reason was provided and a consideration of other factors does not render the dismissal 
harsh, unjust or unreasonable, we find that the dismissal was not harsh, unjust or 
unreasonable. We would therefore dismiss Mr Norman’s unfair dismissal application.

Conclusions

[50] For the above reasons we allow the appeal, quash the decision of the Deputy President. 

[51] On a redetermination of Mr Norman’s unfair dismissal application we determine that 
his dismissal was not harsh, unjust or unreasonable. His application is therefore dismissed. An 
order giving effect to these conclusions should be issued.

Decision of Deputy President Gooley

[52] The Full Bench granted permission to appeal to Lion Dairy and Drinks Milk Limited 
on the grounds that in this matter we were satisfied that a potential significant error of fact 
may have led the Fair Work Commission to erroneously decide Mr Peter Norman was able to 
perform the inherent requirements of his position, when his employer took the view the 
evidence available to it led to a decision to the contrary, enlivens the public interest.

Background

[53] Deputy President Bartel set out the history of this matter and I do not repeat it here 
save to say that in February 2014 Mr Norman had a skydiving incident which resulted in 
significant injuries to his left and right femurs and his face. Mr Norman did not return to work 
and in February 2015 Lion Dairy sought a medical assessment from Dr Geoffrey Graham of 
Mr Norman. 

[54] At the time Lion Dairy made its decision to terminate Mr Norman’s employment it 
had before it an initial medical report from Dr Graham dated 11 February 2015; a medical 
certificate from Professor Rudi Jaarsma clearing Mr Norman to return to work dated 25 
March 2015; and a letter from Dr Graham dated 30 March 2015.

[55] Dr Graham is a Specialist Occupational Physician and he was asked by Lion Dairy to 
provide a medical assessment of Mr Norman and to provide recommendations as to his 
ongoing capacity to perform the inherent requirements of his role as a maintenance fitter. Dr 
Graham was provided with a list of Mr Norman’s pre-injury duties; a list of the most common 








[2016] FWCFB 4218

25

tasks he performed as well as a copy of Lion Dairy’s job dictionary. That sets out the critical 
physical demands and the frequency of those demands in relation to each task performed.

[56] A summary of his report dated 11 February 2015 is set out in Deputy President 
Bartel’s decision.53 Dr Graham concluded that it would be unlikely that Mr Norman would be 
able to perform all the inherent requirements of the role in the near future.

[57] Professor Jaarsma was Mr Norman’s treating Orthopaedic Surgeon. He provided Mr 
Norman with a clearance to return to work dated 25 March 2015. That medical certificate 
provided that Mr Norman could resume work on 30 March 2015. Professor Jaarsma explained 
in his evidence before the Commission that his clearance to restart work was based on the fact 
that Mr Norman’s injury was sufficiently healed and Mr Norman was not in danger from his 
environment nor a danger to himself. He had concluded that there was no risk of re-fracturing 
or negatively affecting their healing process.54

[58] After Lion Dairy received Professor Jaarsma’s clearance, Lion Dairy provided it to Dr 
Graham and he advised that he had not changed his opinion.55

[59] Mr Norman said his dismissal on 15 April 2015 was unfair because at that time he was 
able to resume his normal duties.

Principles on appeal

[60] The decision of Deputy President Bartel was a discretionary decision and it is not in 
contest that the principles set out in House v The King apply. 

“The manner in which an appeal against an exercise of discretion should be determined 
is governed by established 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.”56

[61] Lion Diary was only granted permission to appeal in relation to those grounds pivotal 
to Deputy President Bartel’s preference for Professor Jaarsma’s evidence on the basis of the 
findings of fact made at [69] of the decision. 

The assessment of a valid reason

[62] Deputy President Bartel determined that there was no valid reason for the termination. 
In doing so she said that the Commission is required to conduct an objective analysis of all 








[2016] FWCFB 4218

26

relevant facts in determining whether there was a valid or sound or defensible reason to 
dismiss.57

[63] Deputy President Bartel was here referring to the decision of Northrop J when in 
considering s.170DE(1) of the Industrial Relations Act 1988 said: 

“Subsection 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not 
give a meaning to those phrases or the adjective "valid". A reference to dictionaries 
shows that the word "valid" has a number of different meanings depending on the 
context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning 
given is "2 Of an argument, assertion, objection, etc; well founded and applicable, 
sound, defensible: Effective, having some force, pertinency, or value." In the 
Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid 
reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the 
meaning of sound, defensible or well founded. A reason which is capricious, fanciful, 
spiteful or prejudiced could never be a valid reason for the purposes of subsection 
170DE(1). At the same time the reason must be valid in the context of the employee's 
capacity or conduct or based upon the operational requirements of the employer's 
business. Further, in considering whether a reason is valid, it must be remembered that 
the requirement applies in the practical sphere of the relationship between an employer 
and an employee where each has rights and privileges and duties and obligations 
conferred and imposed on them. The provisions must "be applied in a practical, 
common sense way to ensure that" the employer and employee are each treated fairly, 
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, 
when  considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the 
right of an employer to dismiss an employee. Nevertheless, in cases similar to the one 
before the Court, the application of s170DE(1) should always be considered and 
decided before consideration is given to the additional limitations on the right of an 
employer to terminate the employment of an employee imposed by section 170DE(2) 
and subsection 170DC. The purpose of these two provisions is to confer a greater 
protection on employees from termination of employment. In this regard the 
provisions are not very different from the consequences flowing from an award 
provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 
888; (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held 
to have been imported by implication as well as the substantive protection conferred 
by the award. The statutory provisions now apply, by reason of the Act, with minor 
exceptions, to all employees.”

[64] In its submissions Lion Dairy relied on two decisions of Vice President Watson to 
support its submission that it was not the role of the Commission in deciding whether there 
was a valid reason for the termination to determine whether Mr Norman was able to perform 
the inherent requirements of the job.58

[65] Vice President Watson in Klein v Australian Pharmaceutical Industries Ltd59 stated in 
relation to valid reason that “the authorities in relation to this question make it clear that in 
determining this question, it is not a matter of the Commission putting itself in the place of the 






http://www.austlii.edu.au/au/legis/cth/num_act/ira1988242/
http://www.austlii.edu.au/au/legis/cth/num_act/ira1988242/


[2016] FWCFB 4218

27

employer and determining what it would have done in the circumstances. It is a matter of 
evaluating the reasons relied upon by the employer and determining whether the reasons were 
valid, in the sense that they were sound, defensible and well-founded rather than fanciful or 
not soundly based”.60

[66] The expression referred to by the Vice President that the Commission does not put 
itself in the place of the employer derives from the decision of Moore J in Walton v Mermaid 
Dry Cleaners Pty Ltd.61 In that decision Moore J said:

“It is not the court’s function to stand in the shoes of the employer and determine 
whether or not the decision made by the employer was a decision that would be made 
by the court but rather it is for the court to assess whether the employer had a valid 
reason connected with the employee’s capacity or conduct...”

[67] Lion Dairy submitted that capacity cases should be distinguished from conduct cases 
where it needs to be established that the conduct actually occurred. It submitted that whether 
or not misconduct occurred is binary. It either did or did not occur. It submitted that a 
determination of the inherent requirements was different and as reasonable medical minds 
may differ “an employer should be entitled to rely on medical evidence that it has before 
them.”62

[68] The majority agreed with this submission and contend that Deputy President Bartel 
asked herself the wrong question when she considered, whether on the evidence before her, 
Mr Norman was, at the time of the dismissal, able to perform the inherent requirements of his 
position based on the medical and other evidence. If not, then consideration needed to be 
given to whether he would be in a position to fulfil his position at some time in the future and 
whether reasonable modifications could be made to accommodate any restrictions or 
limitations that he may have.63

[69] Lion Dairy submitted that there were no cases that specifically dealt with this issue. 
However that is not the case. This issue was considered by the Full Bench in Jetstar Airways 
Pty Ltd v Neeteson-Lemkes:64

“[45] In this matter, as earlier stated, the reason for the dismissal relied upon by Jetstar
was a capacity based one, namely that Ms Neeteson-Lemkes was unable to perform the 
inherent requirements of her safety critical role then or in the future, and that there 
were no reasonable adjustments which could be made to allow her to perform that role. 
Section 387(a) therefore required the Commissioner to consider and make findings as 
to whether, at the time of the dismissal, Ms Neeteson-Lemkes suffered from the alleged 
incapacity based on the relevant medical and other evidence before her and, if so, 
whether there were any reasonable adjustments which could be made to her role to 
accommodate her. Those findings then need to be considered and treated as matters of 
significance in the process of deciding whether Ms Neeteson-Lemkes's dismissal was, 
to use the general rubric, unfair.” (my emphasis)

[70] This approach is consistent with the approach approved by the Full Bench in 
Ambulance Victoria v Ms V65 where the Full Bench said that ‘the issue arising out of the 
medical evidence was whether the evidence supported a finding that the respondent could not 
perform the inherent requirements of her role…Having assessed the medical evidence the 








[2016] FWCFB 4218

28

Commissioner was not persuaded that it supported a finding that there was a valid reason for 
the termination for a number of reasons stated…”

[71] While it was put that this decision supported the proposition being put by Lion Dairy it 
is difficult to see how that submission can be made. 

[72] In that matter, Ambulance Victoria had conflicting medical reports about whether Ms 
V could safely perform the inherent requirements of her position. Commissioner Smith, as he 
was then, considered the medical evidence and did not agree with the conclusion of 
Ambulance Victoria.66 In the appeal, the Full Bench did not adopt the proposition that “there 
was some degree of equivocation in the medical evidence [that] should have been resolved in 
favour of the appellant, given the nature of this industry, as the appellant’s concerns were 
reasonably based and the appellant was not in a position to be confident in the respondent 
returning to her job.”67

[73] The Full Bench said in response to that submission that ‘the responsibility of the 
Commissioner was to determine whether the evidence supported a finding that there was a 
valid reason for the termination of employment in all the circumstances, including the 
particular nature of the industry and the respondent’s role.”68 It found that Commissioner 
Smith’s conclusion was reasonably open to him on the evidence. 

[74] This approach is consistent with the Full Bench decision in Rode v Burwood 
Mitsubishi69 which held “the reason for termination must be defensible or justifiable on an 
objective analysis of the relevant facts. It is not sufficient for an employer to simply show that 
he or she acted in the belief that the termination was for a valid reason.” The Full Bench said 
the Commission “is bound to consider, for itself, whether, on the evidence in the proceedings 
before it the termination was “harsh, unjust or unreasonable.”70

[75] It is also consistent with the decision of the Full Court of Federal Court in Miller v 
University of New South Wales71 which held that the validity of the reason for dismissal must 
be judged by reference to the Commission’s assessment of the factual circumstances as to 
what the employee is capable of doing or has done or as to what the employer requires in 
order to continue its activities.72

[76] This is also consistent with the decision of the Full Court of the Federal Court in 
Edwards v Justice Giudice73 which held that for dismissals which rely on the employee’s 
conduct “the Commission is required to determine whether the conduct occurred as a step in 
resolving whether there was a valid reason”.74

[77] A valid reason can relate to a person’s conduct or capacity.

[78] I do not accept the submission of Lion Dairy that conduct cases are binary and 
capacity cases are not. Context in both conduct and capacity cases plays an essential part in 
determining whether there was a valid reason for the termination of employment. Not every 
breach of policy for example would be a basis for a finding that there was a valid reason for 
the dismissal.

[79] The Act does not impose a different test if an employee is dismissed for reasons 
related to conduct compared to capacity. In capacity cases the Commission is required to 
determine if the employee has the capacity or not. 








[2016] FWCFB 4218

29

[80] It is not sufficient that the employer believed, based on the medical evidence before it,
that it had a valid reason for the dismissal. The Commission must be satisfied that there is a 
valid reason for the dismissal based on the evidence that is before the Commission.

Consideration

[81] For the reasons set out below I would grant the appeal and quash the decision because 
the finding of fact that Mr Norman was able to perform the inherent requirements of his 
position at the time of his dismissal was not open to Deputy President Bartel on the evidence 
before her and it constituted a significant error of fact.

[82] It is important to note that Deputy President Bartel accepted Dr Graham’s conclusion 
that Mr Norman was unable to safely perform the inherent requirements of his position as at 
the date of his examination on 5 March 2015.75

[83] However she then had to decide if Mr Norman was fit to perform his duties at the 
point of his dismissal. In making the assessment that he was, she relied on her findings at 
[69].

[84] Deputy President Bartel said at [69] that she preferred Professor Jaarsma’s evidence to 
that of Dr Graham. She said as follows:

“[69] In reaching a view as to the applicant's capacity when he was dismissed I 
prefer the evidence of Professor Jaarsma to that of Dr Graham where there is a 
conflict. I have relied upon Professor Jaarsma's evidence that: 

 The applicant had not achieved his pre-injury level of capacity as at 25 March 2015 
but that this is rarely achieved where there has been serious injury and an extended 
absence from work and that, at best, a recovery to 95% - 98% is achievable.

 The degenerative change in the applicant's left knee was not a barrier to performing 
his role as maintenance technician;

 The applicant's femurs had sufficiently healed so that he was not at risk of further 
injury;

 There was no barrier to the applicant returning to work;

 It was up to the employer and occupational physician to determine how the applicant 
could be fully integrated into his position.”

[85] Deputy President Bartel concluded that Mr Norman had improved after Dr Graham’s 
assessment.76

[86] She correctly acknowledged that any assessment must be made in relation to Mr 
Norman’s substantive role and not on any modified, restricted duties or temporary alternative 
position.77

[87] She found that there was no valid reason based on the following findings:








[2016] FWCFB 4218

30

1. He had some residual difficulty with squatting but he was not unable to squat or 
assume awkward positions, nor was he at risk if he did so.

2. He may have benefited from a gradual integration to full duties given he had 
suffered a significant trauma and had been away from work for over a year.

3. It was wrong to conclude that because he would benefit from reintegration, he was 
unable to perform the inherent requirements of his position;

4. He could perform the inherent requirements of his position.78

[88] Lion Diary submitted that Deputy President Bartel erred when she found that there 
was no valid reason for the dismissal. It contended that Deputy President Bartel erred by 
failing to take into account a material consideration, namely the fall risk that Mr Norman’s 
osteoarthritis presented when climbing ladders, which was an inherent requirement of Mr 
Norman’s position.

[89] In this matter Deputy President Bartel was required to determine if the dismissal was 
harsh, unjust or unreasonable. In making that assessment the Deputy President had to take 
into account whether there was a valid reason for the dismissal. That assessment must be 
assessed by reference to Mr Norman’s state of health and the expert opinions expressed as to 
his state of health, as they were at the time of his dismissal.79

[90] What was in dispute was whether he would have been able to fulfil his position 
sometime in the future and whether reasonable modifications could be made to accommodate 
any restrictions or limitations that he may have.80

[91] In reaching her decision Deputy President Bartel had regard to the evidence before her 
including Mr Norman’s evidence. 

[92] In his statement Professor Jaarsma advised that at 25 March 2015 when he examined 
Mr Norman, Mr Norman briefly described the requirements of his work as a mechanical 
maintenance technician and explained that he was doing significant work on his farm which 
included maintaining and repairing trailers and cars. He explained that this included bending, 
lifting and kneeling. He reported that he was working ten hours per day and that this work 
closely mimicked his work as a technician. Professor Jaarsma indicated that he had reached a 
functional range of motion. Professor Jaarsma agreed, based on his examination and what Mr 
Norman told him, that he could go back to work and he cleared him to start work. 

[93] Professor Jaarsma explained that his clearance was in relation to Mr Norman’s injury 
in other words “there was no further risk of refracturing or negatively affecting their healing 
process.”

[94] Dr Graham’s evidence focused on the “degenerative changes in [Mr Norman’s] knees, 
and to a lesser extent some reduced rotation in his hips.”81 It was the degenerative changes 
which put Mr Norman at risk if he returned to his pre-injury duties.82 It was his evidence that 
there was “the potential for the applicant to suffer sharp pain and a feeling of instability in the 
knee when performing tasks where balance and stability are important.83 It was his evidence 
that sustained performance would likely result in further degenerative change to his knee.84








[2016] FWCFB 4218

31

[95] Dr Graham did not change his assessment even after being advised of Professor 
Jaarsma’s clearance. He stated that he assumed that Professor Jaarsma “is indicating a fitness 
to return to some form of work but I would not imagine that he is considering Mr Norman fit 
to return to his full duties as a maintenance technician at that time.”85

[96] Professor Jaarsma did not dispute that Mr Norman had a degenerative change in his 
left knee but it was his view that this was common in people Mr Norman’s age who 
performed similar physical work. It was his view that those workers were able to perform 
their work satisfactorily. It was his evidence that that the level of degeneration was not 
significant. It was his evidence that Mr Norman had very mild arthritis of the left knee and 
that was there before the accident. It was his view that this would mean “that any worker, 50 
year old manual worker who gets in an accident will probably lose his job then because he has 
degenerative changes from all the hard work that he’s done before.”86

[97] Deputy President Bartel’s rejected Dr Graham’s evidence in relation to the risk of 
further injury. She found that this oral evidence was inconsistent with the report prepared by 
Dr Graham after seeing Mr Norman on 5 March 2015. Dr Graham said in that report that “the 
likelihood of risk of further injury is not great.” In his second witness statement, Dr Graham 
explained that he was not “concerned about any return to work resulting in injury to Mr 
Norman’s femurs. The focus of my assessment, and my concerns, was on the joints above and 
below Mr Norman’s fractures.”87 In his oral evidence he reiterated that this was a reference to 
the fact that he was not going to re-fracture his femurs.88 Deputy President Bartel rejected this 
explanation because it was “inconsistent with the focus of his assessment. At the time of his 
assessment on 5 March 2015 the applicant had not been cleared by Professor Jaarsma and Dr 
Graham did not have any radiology on which to support such a conclusion.”89 However 
despite rejecting this evidence she accepted the conclusion in his report that at the time of the 
assessment Mr Norman was not able to perform the inherent requirements of the position.

[98] The only evidence that Deputy President Bartel had of any change in Mr Norman’s 
condition was that of Professor Jaarsma who saw Mr Norman on 25 March 2015. Professor 
Jaarsma cleared Mr Norman to return to work, he did not clear him to return to his pre-injury 
duties. He accepted that and Deputy President Bartel accepted that “it was up to the employer 
and occupational physician to determine how the applicant could be fully integrated into his 
position.”

[99] Professor Jaarsma’s oral evidence before the Commission made it clear that he was 
not assessing Mr Norman’s capacity to perform the inherent requirements of his position. He 
was assessing whether Mr Norman’s injuries were sufficiently healed so as to enable him to 
return to work. He did not make an assessment of whether Mr Norman’s other condition 
namely his degenerative condition meant that Mr Norman could or could not perform the 
inherent requirements of his position. Professor Jaarsma did not at that time provide an 
assessment of Mr Norman’s degenerative condition. Professor Jaarsma did not express an 
opinion at the time of the dismissal that Mr Norman could safely perform the inherent 
requirements of his position. He maintained that Mr Norman was fit to return to work because 
his injuries were healed.

[100] As such there was no evidence on which Deputy President Bartel could conclude that 
Mr Norman’s condition had changed between the date of Dr Graham’s assessment and his 
dismissal. As she accepted that he was not fit to perform the inherent requirements of the 








[2016] FWCFB 4218

32

position at that time then she erred when she found that at the date of his dismissal he was 
able to perform the inherent requirements of the position.

[101] This finding was a crucial finding in her decision and her finding is a significant 
factual error.

[102] Accordingly I would uphold the appeal and quash the decision and order of Deputy 
President Bartel.

The disposition of the application

[103] At the hearing of the appeal it was put that if the Full Bench found that the Deputy 
President should have found that there was a valid reason then the Full Bench should 
determine the application itself. Ms Preston accepted this proposition.90 Mr Manuel advised 
that he was not prepared to re-argue the matter.91 Mr Manual was advised that we would hear 
from him on that point. Mr Manuel did not then press the point nor propose that this issue be 
determined on another occasion.

[104] I consider it appropriate therefore in all the circumstances to determine the question of 
whether the dismissal was harsh, unjust or unreasonable.

[105] I am satisfied that there was a valid reason for the dismissal. I am satisfied that on the 
evidence before the Commission, at the date of his dismissal Mr Norman was not able to 
safely perform the inherent requirements of his position. I am also satisfied that there was no 
reasonable accommodation that could have been made to enable him to perform the 
requirements safely.

[106] I do not agree with the decision of the majority that s.387(c) only has relevance if the 
employee is given no opportunity to respond. The opportunity to respond must be real. For 
the reasons set out by the majority in relation to s.387(h), I am satisfied that Mr Norman did 
have an opportunity to respond to the reason.

[107] I agree with the Deputy President Bartel that the factors in s. 387 (d), (f) and (g) either 
have no relevance or do not attract any weight in this case.

[108] I further agree with the conclusion of Deputy President Bartel at [85]-[89]. 

[109] I am therefore satisfied that, given there was a valid reason for the dismissal and Mr 
Norman was afforded procedure fairness, that the termination of his employment was not 
harsh, unjust or unreasonable. 

[110] For those reason I would allow the appeal and quash the decision of Deputy President 
Bartel. For the reasons set out above I would also dismiss Mr Norman’s application for an 
unfair dismissal remedy.








[2016] FWCFB 4218

33

VICE PRESIDENT

Appearances:

Ms R. Preston of counsel, with Ms D. Katris, for Lion Dairy.
Mr R. Manuel of counsel, with Mr T. Hardie, for Mr P. Norman.

Hearing details:

2016.
Melbourne – Video Link to Adelaide.
22 June.

Final written submissions:

Lion Dairy on 18 April 2016.
Mr Norman on 26 May and 20 June 2016.

Printed by authority of the Commonwealth Government Printer

Price code G, PR582125

                                               
1 [2016] FWCFB 1887.
2 Edwards v Justice Guidice [1999] FCA 1836 at [5] per Moore J.
3

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, (1999) (unreported, AIRC (FB), 
R4471, 11 May 1999).
4 Jetstar Airways Pty Limited v Neeteson-Lemkes, [2013] FWCFB 9075; Hatcher VP, Drake SDP and Riordan C; at [53].
5 Ex R2 at para 15(b).
6 Ex R2 at para 29.
7 At PN958.
8 At PN153-154.
9 At PN1177.
10 Ex R4.
11 (2010) 195 IR 292 at 299.
12 Ibid at para 22.
13 (1995) 62 IR 371.
14 (1995) 130 ALR 168.
15 (1988) 84 FCR 483.


THE OF THE FAIR WORK C. SEN THE NOISS




 



[2016] FWCFB 4218

34

                                                                                                                                                  
16 S4213.
17 (1999) 169 ALR 89 at 92 per Moore J.
18 See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian 

Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
19 2001 FCA 1031.
20 PR923358.
21 PR953449.
22 Section 49.
23 PN2452 to PN2456.
24 PN2459 to PN 2463. PN 2512 to 2514.
25 Para 47, Exhibit R9.
26 PN 2452.
27 Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.
28 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 14.
29 PR956925.
30 [2011] FWA 8576.
31 [2012] FWAFB 1616.
32 [2011] FWA 8576, at para 45.
33 [2010] FWAFB 4022.
34 (1999) 200 CLR 177.
35 (1999) 200 CLR 177 at 209.
36 (2004) 143 IR 354 at [124].
37 (1998) 193 CLR 280.
38 (1998) 193 CLR 280 at [35].
39 (1998) 193 CLR 280 at [33] – [34].
40 (1998) 193 CLR 280 at [37].
41 (1998) 193 CLR 280 at [72] – [73].
42 Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.
43 Ermilov v Qantas Flight Catering Pty Ltd (PR956925, Giudice J, Hamberger SDP and Raffaelli C, 4 April 2005) at [34].
44 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].
45 See, for example, Stergioti v Toyota Motor Corporation Australia Limited (PR953320, Duncan SDP, 17 November 2004).
46 [2013] FWCFB 9075.
47 Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5] per Moore J; King v Freshmore (Vic) Pty Ltd Print S4213 at [19]-

[23].
48 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat 

Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8].
49 PN1158.
50 [2010] FWAFB 4022 at [29].
51 UKEAT/0393/14/DM.
52 Wadey v YMCA Canberra [1996] IRCA 568.
53 [2016] FWC 840 at [19].
54 Ibid at [28].
55 Ibid at [25].
56 (1936) 55 CLR 499 at 504.
57 [2016] FWC 840 at [58].
58 Transcript PN 87-90.








[2016] FWCFB 4218

35

                                                                                                                                                  
59 [2014] FWC 7251.
60 Ibid at [6].
61 142 ALR 681 at 685 at [25].
62 Transcript PN 94.
63 [2016] FWC 840 op cit at [60].
64 [2013] FWCFB 9075.
65 [2012] FWAFB 1616.
66 [2011] FWA 8576 at [44]-[46].
67 Ibid at [28].
68 Ibid at [28].
69 Print R4471 at [19].
70 Ibid at [20].
71 132 FCR 147.
72 Ibid at [13].
73 169 ALR 89.
74 Ibid at [7] and [69].
75 [2016] FWC 840 at [61].
76 [2016] FWC 840 at [70].
77 Ibid at [71].
78 Ibid at [72].
79 Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075 at [55].
80 [2016] FWC 840 at [60].
81 Ibid at [20].
82 Ibid.
83 Ibid.
84 Ibid at [21].
85 Ibid at [25].
86 Ibid at [34].
87 Appeal Book at page 415.
88 Appeal Book at page 151.
89 [2016] FWC 840 at [66].
90 Transcript PN 154-155.
91 Ibid at PN 158.

Cases cited by this decision: