1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Peter Norman
v
Lion Dairy and Drinks Milk Limited
(U2015/7090)
DEPUTY PRESIDENT BARTEL ADELAIDE, 10 FEBRUARY 2016
Termination of employment.
Introduction and background
[1] Mr Peter Norman (the applicant) was dismissed from his position as Maintenance
Technician (Fitter) at the Salisbury Plant of Lion Dairy and Drinks Milk Limited (the
employer or the respondent) on 15 April 2015. The letter of termination of the same date
stated that the applicant was no longer able to perform the inherent requirements of his
position.1
[2] The applicant had a skydiving accident in February 2014 in which he fell
approximately 10 metres and sustained fractures to his left and right femurs and multiple
facial fractures. He did not return to work after the accident. He maintains that there was no
valid reason for his dismissal because he was fit to resume his normal duties in March 2015
and that he was denied procedural fairness.
[3] The respondent argues that its decision to dismiss was based on independent medical
evidence which concluded that the applicant could not perform his pre-injury position. The
decision to dismiss was taken after giving the applicant an opportunity to provide information
in support of his continued employment and after the employer had held the applicant’s
position open for more than 12 months.
[4] The applicant is a person protected from unfair dismissal within the meaning of s.382
of the Fair Work Act 2009 (the Act) and there are no jurisdictional impediments to the
determination of his application.
[5] The applicant was represented by Mr Tim Hardie, Industrial Officer for the Australian
Manufacturing Workers Union (AMWU). The applicant holds a firm belief that he was fit to
return to his position when he was dismissed. I accept, and it is not suggested otherwise, that
he was extremely diligent in his rehabilitation and highly motivated to return to his position. I
consider that aspects of the applicant’s evidence were coloured by his disappointment over
the dismissal and there were some inconsistencies with detail, but generally I found him to be
a genuine and credible witness.
[2016] FWC 840 [Note: An appeal pursuant to s.604 (C2016/2805) was
lodged against this decision. - refer to Full Bench decisions dated 24 March
2016 [[2016] FWCFB 1887] and 28 July 2016 [[2016] FWCFB 4218] for
result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB4218.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1887.htm
[2016] FWC 840
2
[6] The applicant called Professor Jaarsma, his orthopaedic surgeon. Professor Jaarsma
prepared a report in October 2015 detailing his history with the applicant and his assessment
of his condition. A witness statement for Stuart Gordon, AMWU organiser,2 was admitted by
consent and he was not required for cross examination. Mr Gordon had some involvement
with the applicant in the process leading to his termination and attended the termination
meeting on 15 April 2015.
[7] The employer was represented by Ms Preston of counsel. The following witnesses
gave evidence:
Dr Geoffrey Graham, Occupational Physician, who examined the applicant on
5 March 2015 and prepared two reports for the respondent;
Martin Draper, Maintenance Leader at the Salisbury Plant and the applicant’s line
manager;
Eva Pool, People and Culture Leader, responsible for manufacturing sites,
including the Salisbury Plant.
Gabrielle Liston, the Site Leader at the Salisbury Plant.
[8] The evidence of Dr Graham and Professor Jaarsma is considered in detail later in the
decision. The evidence of Mr Draper, Ms Pool and Ms Liston is accepted unless otherwise
specified.
[9] The applicant commenced employment in May 2009. His performance was not a
matter that informed the employer’s decision to dismiss. The employer regarded the applicant
as a very diligent and skilled tradesperson, albeit that it held some concerns about his
attention to certain ancillary duties, such as sweeping the workshop floor and data entry. The
applicant has the support of his work colleagues, who provided letters attesting to his work
ethic and competence.
[10] In the period following his accident the applicant received “salary continuance” for a
period of time in accordance with clause 26 of the Lion Dairy & Drinks Salisbury
Engineering Services Enterprise Agreement 2013 (the Agreement).3 The salary continuance
ceased in July 2014 and the applicant subsequently received income protection payments
under his superannuation scheme.
[11] Mr Hardie made submissions to the effect that the employer was in breach of the
salary continuance provisions of the Agreement but I am not satisfied that this is correct.
Salary continuance can extend beyond an initial period of 3 months only by approval of the
employer, which was absent in this case. I accept that the clause does contemplate, subject to
the employer’s approval, that an employee may receive full and partial salary continuance for
a period of absence of up to 24 months due to a non-work related illness or injury and also
contemplates that an employee may return to work on reduced hours.
[12] The applicant had some initial problems with his left femur healing appropriately. As a
result, in October 2014, Professor Jaarsma removed a metal plate and replaced it with a pin
and locking screws. Otherwise the applicant’s legs and facial injuries healed appropriately and
[2016] FWC 840
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the correction to the left femur was successful. Post dismissal, the applicant had a minor
procedure to remove the distal locking screw from his left femur that had been causing some
local irritation.
[13] The following is a chronology of key events:
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.
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.
10April 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.
[14] Post-dismissal, the applicant obtained casual employment with Weldfab Engineering
Pty Ltd (Weldfab) for a period of 28 days in July and August 2015, during which time he
performed fitting and welding duties at Coca Cola and Schweppes production facilities. He
worked for Weldfab on another occasion for a shorter period and also performed casual work
at the Murray Vale Homestead over a period of 12 months. References from Weldfab and
[2016] FWC 840
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Murray Vale Homestead indicate that the applicant was held in very high regard and that he
fulfilled all the requirements of the work without issue.4
[15] As at the date of the hearing the applicant was in receipt of unemployment benefits.
He stated that he has had difficulty obtaining employment because of his age and location.5
The medical evidence
Dr Graham’s initial report
[16] Ms Janine Smith, Safety & Wellbeing Advisor at the Salisbury Plant, requested that
Dr Graham provide recommendations concerning the applicant’s capacity to perform the
inherent requirements of his role.6 Ms Smith attached a list of the applicant’s pre-injury
duties; a list of the most common tasks he performed as well as a copy of the respondent’s
“Job Dictionary”. The latter document sets out the critical physical demands and the
frequency of those demands in relation to each task performed.
[17] Dr Graham prepared a report on 11 March 2015.7 He stated that the applicant “… is
experiencing discomfort in the right leg after prolonged weight bearing and more significant
problems with the left leg, including swelling and soreness around the knee and stiffness after
sitting. Despite this, he carries out many of his normal activities at home including
maintaining a 30 acre property.” Dr Graham also reported that the applicant had said that
there were a number of physical requirements that he could not undertake, including working
in awkward positions, squatting and climbing ladders and that he could not complete all tasks
required of a maintenance fitter.
[18] Dr Graham observed muscle wasting in both legs; reduced bilateral internal rotation of
the hips; and flexion in the left knee of 110o and of the right knee of 130o.
[19] In response to specific questions posed by the respondent, Dr Graham reported as
follows:
“1. Please provide details of current clinical findings, diagnosed medical condition
and prognosis for Peter.
My clinical findings have been detailed in the report. He has suffered fractures of
both femurs as well as fractures of facial bones.
The prognosis is very difficult to suggest. He 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.
2. Is the condition considered to temporarily or permanently prevent Peter from
performing the inherent requirements of as a Maintenance Fitter?
At the present time he is unfit to perform all the inherent requirements of the job
of a maintenance fitter. He is continuing to improve but it is not possible to say if
he will improve to a level which he can undertake all normal duties. He feels
confident that he will achieve this but there must be some significant reservations.
[2016] FWC 840
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3. What is his current capacity and/or any restrictions to perform all occupational
requirements of his role as Maintenance Fitter in a safe, productive, sustainable,
durable basis?
I would recommend that he 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.
4. If any restrictions or reduced functional capacity are noted are these of a
temporary or permanent nature?
As indicated previoiusly (sic), it is not possible to say whether they are temporary
or permanent. It is hoped that he will improve further but this cannot be
guaranteed.
5. Will Peter be able to perform the inherent requirement of the role as Maintenance
Fitter in a safe, productive, sustainable and durable manner in the near future or
is he permanently unfit for this role?
It is unlikely that he will be able to perform all the inherent requirements of the
role in the near future.
6. What is the likelihood of risk for further injury for Peter? Can you please
comment on any risk, and recommendations to reduce foreseeable risk?
The likelihood of risk of further injury is not great. His current problem is related
to a lack of ability to get into awkward positions and soreness with activities.
7. Can you please outline any additional recommendations or comments with
regards Peter’s capacity to safely, productive, sustainably and durably perform
his role?
I have no further recommendations or comments. I believe that Peter can only
continue his exercise program and physiotherapy treatment, monitoring his
improvement.”
[20] In his evidence to the Commission, Dr Graham identified the major issue affecting the
applicant’s capacity to undertake his position was degenerative change in his knees, and to a
lesser extent some reduced rotation in his hips. The degenerative change was regarded as
presenting a risk to the applicant in relation to a number of the physical requirements of his
position. Of particular concern to Dr Graham 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.
[21] It was his opinion that the applicant was at risk if he returned to his pre-injury role. In
this regard Dr Graham did not dispute that the applicant may be able to perform his role for a
limited period of time, but considered that sustained performance would likely result in
further degenerative change to his knee. He stated that his conclusion in the initial report, that
[2016] FWC 840
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there is a low level of “risk of further injury”, related to the injuries suffered by the applicant
in the sky diving accident. He clarified that “the near future” was a reference to the next three
months.
[22] Dr Graham’s assessment of the applicant included observing the applicant’s gait,
which he described as “… an antalgic gait, aiming to minimise discomfort”. Dr Graham
undertook a physical examination of the applicant’s hips and knees, and considered two
radiology reports dated April 2014 of the applicant’s right knee and right hip and
femoral/knee (the April 2014 reports).8
[23] The applicant’s own view that he didn’t think he could return to the job and his
statement to Dr Graham that taking care of his property was taking twice as long as it used to,
were also given some weight in Dr Graham’s assessment.
[24] By email on 27 March 2015,9 Ms Smith requested a further opinion from Dr Graham
in light of Professor Jaarsma’s clearance. The request was framed as follows:
“…
Given your March 5 assessment report we have serious concerns about [Professor
Jaarsma’s] clearance and [the applicant’s] ability to successfully return to work. Could
you please confirm your opinion on Peter Norman’s fitness for work and whether he
would have improved sufficiently in 3 weeks to be fit to return to normal duties?
Please advise if you need to see Peter again.”
[25] On 30 March 2015 Dr Graham provided the supplementary report which stated that:
“At the time of that consultation on 5 March 2015 Mr Norman stated to me that he was
accepting that he could not undertake all the requirements of his job. He felt that he
could not work in awkward positions or climb ladders. He indicated that he had
difficulty with squatting and difficulty also with steps and stairs. He also suggested to
me that he may undergo further surgery, possibly in April to remove screws in the left
leg.
Given this I am somewhat surprised at the certificate provided by Professor Jaarsma
suggesting that Mr Norman will be fit to resume work on 30 March 2015. I would
assume that he 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.
I emphasise that I have not seen Mr Norman since 5 March 2015 and my further
opinion is based entirely on that consultation with Mr Norman. I would however not
expect his condition to improve to that extent in the three weeks since the
consultation.”10
[26] Dr Graham indicated that he did not think it necessary to re-examine the applicant,
given the short period that had elapsed since he last saw him and the fact that degenerative
change would not be reversed with the passage of time. Under cross-examination, Dr Graham
stated that he “backed his own judgement” concerning the applicant’s capacity and saw no
need to discuss the applicant’s condition with Professor Jaarsma or any of the health
[2016] FWC 840
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professionals involved in the applicant’s rehabilitation. Dr Graham also stated that he did not
have the right as an independent medical examiner to require the applicant to attend for a
further examination.11
Professor Jaarsma’s evidence
[27] Professor Jaarsma provided a report dated 22 October 201512 detailing his
involvement with the applicant, the surgical procedures undertaken and his assessment of the
applicant’s progress.
[28] In relation to his consultation with the applicant on 25 March 2015, upon which
Professor Jaarsma provided the clearance that he could return to work, he reported as follows:
“Mr Norman returned to my clinic on the 25th March 2015 now more than five months
after the revision procedure to his left femur. He explained briefly the requirements of
his work as a mechanical maintenance technician but also explained to me 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 also
indicated that since his previous visit on the 28th January he had put himself on a
regime and after initially being quite tired he was now doing this work for 10 hours per
day. During the same visit on the 25th March 2015, he clearly indicated that the work
he was doing at home for 10 hours per day was closely mimicking his work as a
mechanical maintenance technician.
The x-rays performed on that day demonstrated significant healing of the left femur
fracture without signs of loosening, instability or infection.
On clinical examination Mr Norman had achieved a functional range of motion
although one of the distal locking screws was still causing some mild local discomfort.
Since the fracture had now healed sufficiently and Mr Norman was able to do work at
home for 10 hours per day similar to his work requirements as a mechanical
maintenance technician, he agreed that he was ready to go back to work and I cleared
him to start his work again.
I would like to reiterate that a clearance to restart work from an Orthopaedic Surgeon
is normally based on the fact that the injury has now sufficiently healed, that the
patient is not a danger for his environment and that the injury has healed to an extent
where he is no danger to himself. This means that there is no further risk of
refracturing or negatively affecting their healing process.
With regard to the mildly proud distal locking screw of the left femoral nail, we agreed
that this was not holding Mr Norman back from restarting his work although he would
appreciate at some stage to get the screw removed in a short day procedure. Mr
Norman indicated that if possible he would like to get this done during one of his four
rostered days off in his normal working schedule. Removal of the screw is a simple
day procedure which takes the surgeon five minutes and would allow the patient to go
home right after the surgery. Ideally the patient would need one day off after this
surgery.”
[2016] FWC 840
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[29] Professor Jaarsma had a further consultation with the applicant on 21 October 2015,
where the applicant confirmed that he had been working in some temporary jobs and also
working his 10 hour days at home. Professor Jaarsma noted that the applicant “… has a full
range of motion and 120 degrees flexion in both knees, full extension, internal rotation of
20 degrees in the left hip and 10 degrees in the right hip, external rotation of 40 degrees in
the left hip and 30 degrees in the right hip. He has full abduction and adduction and no pain
or sensory loss in both lower extremities.”
[30] The focus of Professor Jaarsma’s report and examination of the applicant on 25 March
2015 was the risk of injury to the applicant’s femurs, which he assessed as nil. However in
assessing the applicant as fit to return to work, Professor Jaarsma took into account the
applicant’s advice of the nature and extent of the work he was undertaking at home; the
radiology; the applicant’s mental state and desire to return to work; and that he was in no
pain. Professor Jaarsma had a broad understanding of the applicant’s work in terms of the
time spent standing, bending, lifting, sitting, driving and climbing.13
[31] Professor Jaarsma disagreed with Dr Graham’s conclusion that the applicant had
clearly observable muscle wasting in his right leg14, noting that the applicant’s right leg was
larger than the left leg due to significant callous formation associated with the healing
process. He also disagreed with Dr Graham’s assessment that the applicant had an “antalgic
gait” (i.e. walks as if in pain). It was Professor Jaarsma’s view that the applicant may have
been limping due to scarring, but this would not preclude him from performing any duties.
[32] In commenting on Dr Graham’s observation that the applicant was experiencing
discomfort in his right leg after prolonged weight bearing, Professor Jaarsma noted that the
applicant had the same surgical procedure on the right leg and stated, “… that’s something
that will work out and hopefully become better during his work, which means that you cannot
expect somebody who’s been off work to be in full capacity of running around. If you ask
somebody - and this is what I struggle with on regular occasions, to be 100 per cent, it’s not
going to happen.”15
[33] He gave the analogy of an AFL player who suffered a trauma or injury. Professor
Jaarsma may clear the player as fit to return to football because there is no longer any injury
or risk of further injury, but it is up to the coaches and trainers to determine if and when the
player returns to the first team.16
[34] In relation to the degenerative change in the applicant’s left knee, Professor Jaarsma
stated that it was consistent with the level of degenerative change he frequently observed in
people of the applicant’s age who have performed similar physical work for many years. In
his experience these workers are able to continue to perform their work satisfactorily. It was
also Professor Jaarsma’s view that there was too strong a focus on the applicant’s
degenerative changes in Dr Graham’s reports and that the level of degenerative change was
not significant. In answer to a question as to whether the applicant suffered from arthritis in
his knees, Professor Jaarsma stated:17
“If you very, very carefully look at it he has - and this is what I did - very minimal
arthritis in both his hips and his knees, and maybe mild, I think - I’m not happy and I
don’t think it’s correct, the advance stages but he does have some mild arthritis in his
left knee. If you then go back to all the X-rays, this hasn’t changed over the course of
his treatment at Flinders Medical Centre. So basically on day one before the trauma,
[2016] FWC 840
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his degenerative changes were the same as they are now, which means 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.”
[35] Professor Jaarsma also noted that only three of the four joints in the left knee showed
any evidence of degenerative change.18
The applicant’s evidence on his capacity
[36] The applicant was attending the workplace from time to time and would talk with
Mr Draper about his progress and what he had been doing on his property. He stated that in
early 2015 he made Mr Draper aware that he envisaged a return to work in April.
[37] After the applicant’s surgery in October 2014 to remove the plate in his left femur, he
commenced his own rehabilitation program on his property. He described his property of 30
acres as undulating with rocky outcrops and with a 500 metre walk to the gate that “looks
more like a goat track”. His house sits was atop one hill looking over the valley to the top of
the next hill. Over time he gradually increased the distance he would walk and the extent and
nature of work on his property. By early 2015, this work involved fencing; working on his
and his neighbour’s farm machinery and equipment; working on trailers; and cutting and
carrying firewood.
[38] The applicant acknowledged that he was still experiencing some physical limitations
at the time of his assessment with Dr Graham. He said he advised Dr Graham of his
confidence in a return to work in April and described the type of work he was undertaking on
his property. He did not directly dispute making a comment to Dr Graham that taking care of
his property takes twice as long as it used to, but said that it was ‘tongue in cheek’. I take this
to mean that it was a deliberate exaggeration, but I find that the applicant would not have
made this comment unless the work on his property was taking longer than it used to.
[39] The applicant stated that his assessment by Dr Graham took only 20 minutes and
included a fairly cursory examination of his knees and legs. I prefer Dr Graham’s evidence
that the examination took at least 40 minutes and that he conducted an appropriate assessment
of the applicant.
The process leading to the dismissal
The meeting on 25 March 2015
[40] The meeting on 25 March 2015 was originally intended to be a ‘show cause’ meeting,
but didn’t proceed along these lines because the applicant provided the clearance from
Professor Jaarsma immediately prior to the meeting. At the meeting the applicant was
provided with a copy of the initial report and an opportunity to “browse” the document.
Ms Liston’s notes of the meeting19 record that the applicant disagreed with point 5 in the
initial report and stated that he could safely perform 99% of his work.
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[41] The notes record that the following was stated to the applicant:
“To protect your wellbeing we are requiring you to go for another assessment to verify
where you are versus where you were.”
[42] The applicant was adamant that Ms Liston referred to obtaining “a third opinion” but I
consider that it is more likely that the term “further assessment” was used. In any event,
directly after the meeting the applicant approached Ms Smith, who was responsible for
arranging medical assessments, to see if the assessment could be arranged somewhere closer
to his home. In the following days the applicant followed this up again with Ms Smith and
with Mr Draper to find out the details of a further assessment, but no detail could be provided.
The show cause meeting on 1 April 2015
[43] The respondent received Dr Graham’s supplementary report on 30 March 2015.
Mr Draper advised the applicant of a meeting arranged for Wednesday 1 April 2015, which
preceded the Easter long weekend on 3 to 6 April 2015, inclusive. Mr Draper advised the
applicant that the meeting would consider “feedback from Dr Graham” and discuss “the way
forward”.20
[44] The applicant attended the meeting in the expectation that he would be returning to
work. He did not have a support person present, although he was advised that he could do so.
Mr Draper and Ms Pool were in attendance. After reading the supplementary report to the
applicant and providing him with a copy, Mr Draper explained that the employer was
considering terminating his employment. At that point the applicant became visibly upset and
what then transpired is the subject of conflicting evidence. Consistent with the
contemporaneous notes of Ms Pool,21 I find that the applicant protested that he was to have
been referred for another opinion. Ms Pool responded by referring to Dr Graham’s specialist
qualifications and reminded the applicant that the employer had waited a year before seeking
an assessment. The applicant stated that he wanted another assessment because Dr Graham’s
report was no longer applicable.
[45] Ms Pool’s notes record that the applicant stated words to the effect that “… awkward
positions would require a 2nd person anyway (e.g. the electrician on site) and anything else
wouldn’t be awkward. (?)”. Under cross-examination the applicant stated that Mr Draper
asked him “What happens if there’s something awkward” to which he relied that “If we need
to pull a gearbox off or something like that, there’s always an electrician”. The applicant
stated that he also referred to the employer’s job safety analysis which requires that there be
assistance with heavy lifting.22 I accept the applicant’s evidence on this point. Ms Pool’s notes
do not make sense in the context of the applicant assuming awkward postures.
[46] The applicant was advised that he had until 7 April 2015 to provide a response in
writing or verbally. He stated that he protested this time frame by stating “but its Easter”.
This is not in Ms Pool’s notes and Mr Draper does not recall it being raised. I consider that it
was likely that the applicant referred to the Easter period and it would be surprising if it was
not raised. The applicant concedes that he did not directly request an extension of time.
[47] Mr Draper observed that as he left the meeting the applicant had difficulty getting up
from his seat and appeared to be in discomfort. Ms Pool also referred to the applicant being
“bent to one side” and that “his facial expression indicated great effort/pain” and that he was
[2016] FWC 840
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limping as he left the meeting.23 The applicant did not directly dispute this evidence, but
stated that he was very upset at having been threatened with termination. He said “I think even
Eva [Pool] asked whether she could get me a glass of water, and they were concerned about
me driving home. I honestly thought I was going back to work.”24 I interpose that there is no
evidence about the applicant’s presentation at the meeting on 25 March 2015.
[48] The applicant was given a written show cause letter,25 which includes 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.
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.”
[49] The applicant contacted Mr Gordon later that day. Mr Gordon provided some advice
to the applicant as to what should be included in his response but unfortunately did not
suggest obtaining a further medical report or seeking an extension of time to respond.
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The applicant’s response of 7 April 2015
[50] The applicant provided a response on 7 April 2015, wherein he stated that he was
“… more than aware and capable of the wide and varied expectations of the activities in my
role and how to execute them in a safe and productive manner”. He acknowledged that a
return to work plan was not available and stated that he created “near work conditions” at
home, which he completed in a safe and efficient manner. These conditions included working
10 hour days; getting into awkward positions; standing; squatting; and leaning over objects;
all of which were features of his position. The applicant also referred to his clearance from
Professor Jaarsma.26
The request to contact Professor Jaarsma
[51] Following receipt of the applicant’s response, the employer decided to seek his
authority to speak with Professor Jaarsma prior to making a final decision on the applicant’s
continued employment.27 When approached, the applicant indicated that he wished to speak to
his union before giving a final answer.
[52] Mr Gordon’s evidence on his discussion with the applicant is as follows:
“On 10 April 2015 I received a phone call from Peter telling me that: - “… I received a
call from Draper asking for my authority to get information from my Doctor, Professor
Jaarsma. Should I do this?” I recommended that he not allow the employer to speak to
his doctor but to suggest the employer make a list of questions that he could ask his
Doctor to respond to. He said:- “I’ll say that to Draper”.28
[53] The applicant stated that he advised Mr Draper that “I am happy to relay any questions
you have onto Dr. Jaarsma but I am not prepared to provide unlimited access to my medical
details.”29 He also said that he also told Mr Draper that he would convey any written
questions to Professor Jaarsma.30 This latter evidence is disputed by Mr Draper.
[54] Ms Pool stated that Mr Draper advised her that the applicant had refused to provide
permission to access his surgeon.31 The matter was not pursued any further.
The termination meeting on 15 April 2015
[55] A meeting was convened on 15 April 2015 where the applicant was provided with the
letter of termination32 signed by Mr Draper. There is a dispute between the parties as to
whether Mr Gordon raised the option of returning the applicant to work for a ‘trial period’
under medical supervision. The employer has indicated that it would not have agreed to a trial
in any event as the applicant was not fit to return to his role and was at risk of further injury if
he did so.
[56] The letter of termination included the following passages:
“This letter confirms our discussion regarding your fitness to complete your normal
duties.
[2016] FWC 840
13
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.”
Consideration
[57] In determining whether a dismissal was harsh, unjust or unreasonable, the
Commission must take into account the factors set out in paragraphs (a) to (h) of s.387 of the
Act, 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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
[2016] FWC 840
14
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
[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.33 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.34
[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.35
[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.36 His opinion was significantly influenced by his diagnosis of degenerative change in
the applicant’s knees.37
[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 this38, 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.”39
[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.
[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
[2016] FWC 840
15
clearly to me that he didn’t think that he could return to this job.”40 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”.41
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.
[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.
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;
[2016] FWC 840
16
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)42 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.43
[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.
Procedural issues
[73] The grounds on which the applicant argues that he was denied procedural fairness can
be summarised as follows:
At the meeting on 25 March 2015 the respondent led the applicant to believe that it
was going to arrange for him to be assessed by a different medical practitioner;
The applicant was given insufficient to time to properly respond to the reports
received from Dr Graham and to otherwise show cause why his employment should
not be terminated;
The respondent should have sought a report from Professor Jaarsma before taking
the decision to dismiss; and
The respondent refused to undertake a trial period under medical supervision to
assess the applicant’s ability to perform his role.
[74] I have earlier made findings in respect to the meeting on 25 March 2015, namely that
the applicant was advised that he was required to “go for a further assessment”. The applicant
was kept in the dark about what was happening and attended the meeting on 1 April 2015
believing that his return to work would be discussed. The employer’s advice that this meeting
[2016] FWC 840
17
was to consider “feedback from Dr Graham” and discuss “the way forward” was not
sufficient to convey that it was a show cause meeting.
[75] The employer had conveyed to the applicant that it would attempt to resolve the
apparent conflict between Dr Graham’s initial report and Professor Jaarsma’s clearance by
arranging a further assessment of the applicant to identify the extent of any improvement in
his condition. This is the only reasonable interpretation of the statement made at the meeting
on 25 March that the purpose of the further assessment was to “… verify where you are
versus where you were.” Viewed in this light, it is not surprising that the applicant became
visibly upset when he was presented with a further report from Dr Graham and told that his
employment may be terminated.
[76] In relation to the second ground, above, I am satisfied that the applicant referred to
obtaining further medical evidence on at least one occasion at the show cause meeting and
that he referred to Dr Graham’s report being no longer relevant. As noted earlier, I accept that
the applicant intimated that he was concerned with the period given for his response but that
he did not seek an extension of time.
[77] An opportunity to respond to the reasons for dismissal must be a fair and adequate
opportunity. Albeit in a different context, the views of Chief Justice Wilcox as stated in
Gibson v Bosmac Pty Ltd are apposite to the present matter:
“Ordinarily, before being dismissed for reasons related to conduct or performance, an
employee must be made aware of the particular matters that are putting his or her job
at risk and given an adequate opportunity of defence. However, I also pointed out that
the section does not require any particularly formality. It is intended to be applied in a
practical commonsense way so as to ensure that the affected employee is treated fairly.
Where the employee is aware of the precise nature of the employer’s concern about his
or her conduct or performance and has a full opportunity to respond to this concern,
this is enough to satisfy the requirements of the section.”44
[78] The respondent provided the applicant with the reports on which it had formed the
view that he was unable to fulfil his role. He understood the basis of the employer’s
consideration that his employment may be terminated. The issue here is whether there was a
positive obligation on the employer to provide a longer period for the applicant to respond in
circumstances where he made no specific request for more time.
[79] In considering this issue I have had regard to the applicant’s emotional state at the
meeting on 1 April 2015; his protest that the period for a response was almost entirely
subsumed by the Easter long weekend; his statements that he wanted to obtain a further
assessment; and the applicant’s inexperience in dealing with such matters. It is not disputed
that the applicant had an opportunity to bring a support person to the meeting on 1 April 2015,
but his decision not to do so must be seen in the context of his understanding of the purpose
of the meeting. The respondent’s obligation was to treat the applicant fairly and in my view
the deadline it imposed was unreasonable in these circumstances.
[80] In relation to the third ground, I consider that there was a genuine miscommunication
between Mr Draper and the applicant on the process of obtaining further information from
Professor Jaarsma. On any interpretation however the applicant did not refuse permission for
[2016] FWC 840
18
the employer to access further information. As he pointed out, it would be contrary to his
interests to do so.
[81] In many circumstances it would not be incumbent on the employer to obtain a further
medical report from the employee’s treating health professional. However in this case, the
employer had clearly intimated that it was going to arrange for the applicant to undertake a
further assessment to resolve the apparent conflict between the views of Dr Graham and
Professor Jaarsma. As this was not done, and in view of the limited time given for the
applicant to ‘show cause’ why he should not be terminated, there was an onus on the
employer to follow through with the applicant to obtain information from Professor Jaarsma
in relation to the clearance he issued. Had the employer done so, it would have had the benefit
of a different view on the applicant’s capacity, and in particular a different view on the impact
of the degenerative change in the applicant’s knees.
[82] The letter of termination indicates that the employer proceeded on the incorrect
premise that no alternative view of the applicant’s capacity was available to the employer as a
result of the applicant denying access to his treating surgeon.
[83] I conclude that the applicant was notified of the reasons for his dismissal but in the
circumstances was not given a reasonable opportunity to respond to those reasons.
[84] The criteria in ss.387(d), (e) (f) and (g) of the Act are not applicable and/or of no
weight in this case.
Any other matters – s.387(h) of the Act
[85] It is relevant that the employer had kept the applicant’s position open for over
12 months at the point of dismissal.
[86] I have taken into account Mr Hardie’s submissions concerning the impact of the
dismissal on the applicant, given his age and location. It is well settled that a decision may be
harsh in its consequences for the personal and economic situation of an employee.45 Examples
of circumstances that have led to a finding of a harsh dismissal on this basis include:
Where the dismissal caused damage to the employee’s reputation which restricted
the ability to obtain further employment;
Where an employee is engaged under a subclass 457 visa faced deportation as a
consequence of the termination;
Where the employee had extensive and exemplary service, was the primary
breadwinner for his family and was unlikely to secure further employment because
of his age.46
[87] Each case must be determined on its own circumstances and the findings of a harsh
dismissal in the above cases cannot be divorced from the particular circumstances in the
respective cases. Nonetheless they are a useful guide. In my view the consequences of the
dismissal for the applicant are beyond that normally associated with any dismissal due to his
age. This is a factor to be taken into account.
[2016] FWC 840
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[88] The applicant had been employed for nearly six years at the date of dismissal, which,
while not an extensive period of service, is not a short period of service and is of some
weight.
[89] As noted the employer kept the applicant’s position open for over 12 months. It cannot
be said that the employer was precipitous in its decision to dismiss or that it in any way
pressured the applicant to return to work. Notwithstanding my conclusions in relation to the
procedure leading up to the dismissal, the overall approach by the employer from the time of
the applicant’s accident was sympathetic and this should be acknowledged. On balance these
matters do not outweigh my other findings and I determine that the dismissal was unjust and
unreasonable.
Remedy
[90] The applicant seeks reinstatement to his former position. The relevant provisions of
the Act are:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was
employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no
less favourable than those on which the person was employed immediately
before the dismissal.
(1A) … [not relevant]
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to
maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to cause
the employer to pay to the person an amount for the remuneration lost, or likely to
have been lost, by the person because of the dismissal.
[2016] FWC 840
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(4) In determining an amount for the purposes of an order under subsection (3),
the FWC must take into account:
(a) the amount of any remuneration earned by the person from
employment or other work during the period between the dismissal and the
making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by
the person during the period between the making of the order for reinstatement
and the actual reinstatement.”
[91] The respondent opposes reinstatement on a number of grounds. Firstly, the
Commission has no evidence that the applicant has the capacity to perform the inherent
requirements of his position. In this situation the Commission cannot order reinstatement until
the applicant’s capacity is confirmed. As a corollary to this, it was submitted that it would not
be possible for the Commission to identify the extent of the applicant’s loss of wages, as the
period of incapacity during which no income would be earned, is not known. This matter has
been dealt with above. The applicant had the capacity to perform the inherent requirements of
his position as at the date of dismissal.
[92] Secondly, the applicant’s position was filled in October 2015. Ms Preston
acknowledged that this would not of itself defeat an application for reinstatement, but
nonetheless the Commission should take into account that the applicant’s reinstatement would
require the employer to terminate the employment of the person who replaced him. This is of
limited weight (see below), especially in circumstances where the employer was aware that
the applicant was pursuing reinstatement to his position before it appointed his replacement.
[93] Thirdly, there has been a loss of trust and confidence in the applicant by his line
supervisor, Mr Draper and Mr Draper’s line Manager, Mr Steve Rice. Ms Preston relied on an
exchange with the applicant, concerning comments he made to co-workers about Mr Draper
and Mr Rice whilst engaged by Weldfab. I can find no evidence on the nature and/or extent of
any working relationship between the applicant and Mr Rice. I find that the applicant most
likely did make uncomplimentary comments about Mr Draper,47 but there is no evidence as to
what was actually said.
[94] Ms Preston then made the following submission:
“However the evidence goes much further than that, because if you look at what
actually went on in the witness box, there’s a lot of almost poison in the relationship
with accusations of Mr Draper lying, with accusations of Mr Draper targeting him in
his employment, down to the very fact that the whole reason that that position was left
open in the first place and suddenly closed was to prevent reinstatement.”48
[95] The evidence does not support this submission. Ms Preston asked the applicant, when
he disagreed with Mr Draper’s evidence, whether he was saying that Mr Draper was a liar, to
which the applicant responded that “I don’t like calling anyone a liar”. When asked whether
his relationship with Mr Draper had deteriorated through the process of his application to the
Commission, the applicant stated that he was upset and confused.49 It was Mr Hardie’s
[2016] FWC 840
21
submission, not the applicant’s evidence that the respondent sought to frustrate a
reinstatement order by filling the applicant’s position.
[96] Finally, Ms Preston noted that the applicant’s performance management was,
ultimately, about the applicant’s capacity or willingness to follow the instructions of
Mr Draper. She submitted that “It was well accepted that [the applicant] performed his job
well, that he was an excellent - exceptional even, I think the word was used, fitter, however
there were some serious disciplinary issues in him following orders of Mr Draper. Those are
clearly matters that are going to be exacerbated now, if the applicant was returned to work
under Mr Draper.” 50
[97] I have dealt earlier with the inactive performance plan. There is no evidence of any
disciplinary proceedings, let alone “serious disciplinary issues” being initiated by the
employer. There is however ample evidence before the Commission, including that of the
applicant’s line supervisor, attesting to his excellent skills, attitude, conduct and diligence in
relation to his trade work.
[98] Mr Draper’s evidence was that if the applicant was reinstated it would be awkward
and uncomfortable.51 This is likely to be the case, in the initial period at least, and is not
assisted by any negative comments made about him by the applicant. Nonetheless, the
applicant and Mr Draper have had a long standing working relationship and have previously
overcome tension that has developed from time to time. I am confident that a productive and
respectful working relationship will be re-established if the applicant is reinstated.
[99] Reinstatement under the Act was recently considered at some length in Nguyen and Le
v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South
Australia Chapter (Nguyen).52 Considering a range of authorities the Full Bench stated:
“We would observe that to describe reinstatement as the ‘primary remedy’, is to simply
recognise that reinstatement is the first, perhaps even the foremost, remedy under the
Act. The relevant question in determining whether to grant the remedy of reinstatement
of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether
reinstatement is appropriate in the particular case.”53
[100] After considering the legislative development of the remedy provisions relating to
relief from unfair dismissal, the Full Bench turned to the issue of appropriateness of
reinstatement. The Full Bench observed that:
“[17] Reinstatement might be inappropriate in a whole range of circumstances, for
example if such an order would be futile such as where reinstatement of an employee
would almost certainly lead to a further termination of the employee’s employment
because the employer has since discovered that the employee engaged in an act of
serious misconduct which was only discovered after the employee’s termination or if
the employer no longer conducts a business into which the employee may be
reappointed. The fact that the employer has filled the position previously occupied by
the dismissed employee would rarely, of itself, justify a conclusion that reinstatement
was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon
Australia Ltd: [footnotes omitted]
[2016] FWC 840
22
‘It will often, if not typically, be the case that the position occupied by an
applicant for relief under s.170CE of the Act will, at the time the application is
arbitrated, either no longer exist or no longer be vacant. In our view that bare
fact would rarely, on its own, justify a conclusion that an order for
reinstatement was not ‘appropriate’. To adopt such an approach would tend to
defeat the remedial purpose of the legislation.’”
[101] The Full Bench then considered the approach to be adopted in considering an
argument that reinstatement would be inappropriate because there has been a loss of trust and
confidence. The Bench distilled a number of propositions concerning the impact of a loss of
trust and confidence, including the following:
“[27] …
Whether there has been a loss of trust and confidence is a relevant consideration
in determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.
Each case must be decided on its own facts, including the nature of the
employment concerned. There may be a limited number of circumstances in
which any ripple on the surface of the employment relationship will destroy its
viability but in most cases the employment relationship is capable of
withstanding some friction and doubts.
…
[28] Ultimately, the question is whether there can be a sufficient level of trust and
confidence restored to make the relationship viable and productive. In making this
assessment, it is appropriate to consider the rationality of any attitude taken by a
party.”
[102] I am satisfied that professional and viable working relationships can be re-established
in the workplace and any discomfort on Mr Draper’s part will be short lived. The applicant
enjoys the support and respect of his co-workers. This is not a case where an employer has
alleged and/or substantiated misconduct on the part of a worker which led to the dismissal. An
order for the reinstatement of the applicant to his former position will be issued.
[103] I consider that it is appropriate to make an order for remuneration lost by the applicant
as a result of the dismissal. There is evidence before the Commission of remuneration
received by the applicant from Weldfab of $13,043 (gross).54 I note that the applicant received
no notice of termination so no deduction is required on this account.
[104] The applicant may have received further remuneration from Weldfab and/or other
sources since the hearing concluded. In addition, the amount of the applicant’s gross weekly
wage with the respondent is not in evidence. For these reasons the parties are requested to
confer on the amount of remuneration that will accompany the order for reinstatement and
advise the Commission accordingly.
[2016] FWC 840
23
DEPUTY PRESIDENT
Appearances:
Mr T Hardie for the applicant
Ms R Preston with Ms D Katris for the respondent
Hearing details:
2015:
Adelaide
11, 12 and 13 November
Printed by authority of the Commonwealth Government Printer
Price code G, PR576849
1 Ex R8, Attach “MD-7”.
2 Ex A6.
3 AE404146 at cl 26.
4 Ex A4 and A5.
5 The applicant is 51 years old and resides in the Barossa region of South Australia.
6 Ex R2, Attach “GJG-1”.
7 Ex R2, Attach “GJG-3”. The report was incorrectly dated 11 February 2015.
8 Ex R2, Attach “GJG-2”.
9 Ex R2, Attach “GJG-4”.
10 Ex R2, Attach “GJG-5”.
11 At PN990-991.
12 Ex A1.
13 Ex A7 Australian Super Report.
14 Ex R2 at para 22(a).
15 At PN202-203.
16 At PN104.
17 At PN199.
D THE FAIR WORK COMMISSION THE
[2016] FWC 840
24
18 At PN196.
19 Ex R1.
20 Ex R8 at para 37.
21 Ex R6.
22 At PN613-616.
23 Ex R8 at para 43; Ex R5 at para 30, respectively.
24 At PN467.
25 Ex R8, Attach “MD-5”.
26 Ex R8, Attach “MD-6”.
27 Ex R8 at paras 46 and 47.
28 Ex A6 at para 3.
29 Ex A3 at para 15.
30 At PN375.
31 Ex R5 at para 34.
32 Ex R8, Attachment “MD-7”.
33 Edwards v Justice Guidice [1999] FCA 1836 at [5] per Moore J.
34 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, (1999) (unreported, AIRC (FB),
R4471, 11 May 1999).
35 Jetstar Airways Pty Limited v Neeteson-Lemkes, [2013] FWCFB 9075; Hatcher VP, Drake SDP and Riordan C; at [53].
36 Ex R2 at para 15(b).
37 Ex R2 at para 29.
38 At PN958.
39 At PN153-154.
40 At PN1177.
41 Ex R4.
42 (2010) 195 IR 292 at 299.
43 Ibid at para 22.
44 (1995) 60 IR 1 at p 7.
45 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410, per McHugh and Gummow JJ.
46 Barwon Health – Geelong Hospital v Colson (2013) 233 IR 364; Ismalov v Hisoftware (Australia) Pty Ltd [2014] FWC
3751; Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, per Lawler VP and Roberts C, O’Callaghan
SDP dissenting, respectively.
47 At PN706-711.
48 At PN2680.
49 At PN676-690.
50 At PN2683.
51 At PN1709.
52 [2014] FWCFB 7198, Ross J, Gostencnik DP, Wilson C.
53 Ibid at [10].
54 As per the payslips attached to the applicant’s Outline of Argument and evidence from the applicant that a further $2,800
was received from Weldfab.
