1
Fair Work Act 2009
s.394—Unfair dismissal
Richard Hyde
v
Serco Australia Pty Limited
(U2017/10615)
COMMISSIONER WILLIAMS PERTH, 8 MAY 2018
Termination of employment.
[1] This decision concerns an application made by Mr Richard Hyde (the Applicant or Mr
Hyde) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The
Respondent is Serco Australia Pty Limited (the Respondent or Serco).
Background
[2] In June 2017 Serco requested Mr Hyde show cause why his employment should not be
terminated on medical grounds.
[3] Having received and considered his response by letter on 11 September 2017 Serco
advised Mr Hyde that it had determined he could not then nor for an indefinite period fulfil
the inherent requirements of a Custodial Officer at Acacia Prison and so his employment was
terminated with pay in lieu of notice.
[4] The letter of termination referred to the report of his treating specialist Dr Vara
Mukundala (Dr Mukundala) as follows,
“Dr Mukundala concludes that you cannot fulfil the inherent requirements of the job as
a Prison Officer, stating “The right ankle joint had fused both clinically and
radiologically. However, one should note that the movements of this joint level are
completely abolished. Thereby, I would conclude that he would never be fit to perform
his pre-injury duties at 100% level.” Dr Mukundala then adds, “In a case of
emergency, he would definitely need aide from his colleagues as he would be unable to
sprint/run on this fused ankle joint.”...”
Evidence and factual findings
[5] At the hearing evidence for the Applicant was given by Mr Hyde and Dr Craig White
(Dr White) who is a Consultant Occupational Physician.
[2018] FWC 2465 [Note: An appeal pursuant to s.604 (C2018/2866) was
lodged against this decision. - refer to Full Bench decision dated 2 August
2018 [[2018] FWCFB 3989] for result of appeal
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3989.htm
[2018] FWC 2465
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[6] Statements were also admitted into evidence from Mr Graham Carlson (Mr Carlson)
who is employed by Serco as the Principal Officer at Casuarina Prison and Mr Paul Parsons
(Mr Parsons) who is employed by Serco as a Prison Officer at the Eastern Goldfields Prison.
Neither witness was cross examined.
[7] Evidence for the Respondent was given by Mr William Newell (Mr Newell) who is
employed by Serco as the Health, Safety and Well-being Manager at Acacia Prison and Mr
Ian Southerton (Mr Southerton) who is the People and Culture Manager – Assistant Director
Human Resources for Serco.
[8] The evidence is that Mr Hyde commenced employment with Serco in about September
2009 as a Custodial Officer. From 2013 he at times also delivered training programs that
covered various aspects of the Custodial Officer positon.
[9] One of those programs was the Defensive Equipment Tactical Training (DETT). The
DETT course includes training in the use of physical restraints and various other force options
and techniques for dealing with prisoners as well as riot training, breathing apparatus training,
fire-fighting techniques and prisoner escort methods.
[10] The DETT is a specific testing and training course that Serco requires every Custodial
Officer to complete each year.
[11] In May 2015 Mr Hyde suffered an injury to his left knee during the delivery of a
DETT course for new recruits.
[12] During the training a trainee tackled him from the side and the medial ligament of his
left knee was ruptured. The tackle caused the medial ligament of his knee to be torn from the
bone.
[13] Mr Hyde returned to work within approximately two weeks of the injury and resumed
the full duties of his role within about three months of the injury.
[14] At the time he injured his left knee he had diagnosed osteoarthritis in his right ankle.
After he injured his left knee, he experienced increased pain and stiffness in his right ankle.
[15] His right ankle condition continued to worsen and he consulted an Orthopaedic
Surgeon, Dr Mukundala in March 2016.
[16] In May 2016, Mr Hyde approached Ms Alex Argiropulos (Ms Argiropulos), Serco’s
Return to Work Coordinator, to discuss his ankle fusion operation he was to undergo in June
2016.
[17] Mr Hyde made a request for restricted duties in the “movements” unit. The
movements unit is an area where Officers direct prisoner movements within the prison via
video. Whilst an Officer is working in movements, they do not have prisoner contact and
perform mostly administrative duties. Custodial Officers are rotated into the movements unit
as part of their overall duties.
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[18] Serco temporarily placed Mr Hyde into the movements unit on an exclusive basis as a
result of his non-work related condition; however, there is no capacity within the prison for a
Custodial Officer to permanently work in the movements unit.
[19] After receiving advice from Dr Mukundala he had surgery to fuse his right ankle in
June 2016.
[20] For many months leading up to his consultation with Dr Mukundala and the surgery,
Mr Hyde says he continued to perform his role as Custodial Officer with his injured ankle and
he was able to respond to code red situations during 2016 even though his ankle was stiff and
painful.
[21] He returned to work on 17 August 2016 and was assigned to work restricted duties in
the movements unit. He performed many of the usual duties as Custodial Officer, but
performed a greater proportion of administrative duties and did not have any prisoner contact
nor perform any training.
[22] As part of Serco’s return to work program, Ms Argiropulos advised Mr Hyde that
Serco required additional information from Mr Hyde’s treating physician in respect of his
medical condition and fitness for work.
[23] On 18 November 2016 Ms Argiropulos wrote to Dr Mukundala by email with Mr
Hyde’s consent seeking further information in relation to Mr Hyde’s fitness for work. That
email, which was copied to Mr Hyde, asked Dr Mukundala to examine Mr Hyde’s ankle and
to comment on four particular questions which concerned his suitability for performing his
pre-injury duties, specifically defensive movements.
[24] Mr Hyde had his last post-surgery follow-up appointment with Dr Mukundala on 23
November 2016 and he asked Dr Mukundala if he would provide a medical certificate so that
he could resume all of the duties of my role.
[25] On 24 November 2016 Serco received a medical certificate dated the same day issued
by Dr Mukundala which simply stated,
“I certify that Richard Hyde is fit for work (full duties) from 24/11/2016.”
[26] Ms Argiropulos met with Mr Hyde the same day and discussed whether Dr
Mukundala had been provided with the questions Serco had asked to be answered regarding
his fitness to perform the inherent requirements of his position as a Prison Officer. There was
some discussion about Dr Mukundala requesting to be paid for a report on the questions being
asked by Serco. By email the next day Mr Hyde was advised that Serco would follow this up
with Dr Mukundala and they will get back to Mr Hyde in January 2017 after he had returned
from a months’ annual leave.1
[27] Serco were concerned that Dr Mukundala had not answered the specific questions they
had asked. Mr Hyde acknowledges that it may be the case that Dr Mukundala did not have the
benefit of Ms Argiropulos email when he wrote the 24 November 2016 medical certificate.2
[28] In early February 2017, Serco issued a defence and control training “Physical
Readiness Form” in advance of the annual defence and control or DETT refresher training.
[2018] FWC 2465
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The purpose of the Physical Readiness Form is to understand an individual’s physical
readiness to complete the mandatory refresher training.
[29] Mr Hyde completed the form on 3 February 2017.
[30] Part A and B of the form asks 11 questions regarding whether the Officer can do
various tasks concerning walking, jogging, working in confined spaces, crouching and
kneeling, lifting, dragging, running, climbing ladders and using a respirator. Mr Hyde
answered yes to all questions except question 9 which asked whether he could run for 1 km,
to which he answered “No”.
[31] Separately in Part C of the form Mr Hyde had answered “Yes” to question 9 which
asked whether he had “Arthritis/gout/stiff joints/joint injuries” and to questions 12, 13 and 14
which asked whether he had injuries to “shoulders/elbows/wrist or hand” or to
“hip/knee/ankle or foot” or had ”fractures or broken bones”.
[32] He answered “No” to question 17 which asked whether he had a condition, disability
or impairment that Serco should be aware of that may affect his ability to safely perform the
assigned training.
[33] He answered “Yes” to question 18 which asked whether he believed he was physically
fit to undertake all the assigned training duties.
[34] In Part D of the form Mr Hyde answered “Yes ” to the question of whether he was on
restricted work arrangements but did not answer the balance of the question which asked what
those restrictions were.
[35] Mr Southerton’s evidence was that because the defence and control refresher training
must be completed as part of Mr Hyde’s position, Serco elected to request a full medical
report from Mr Hyde’s treating practitioner to understand his ability to complete the defence
and control training and perform the duties required as part of his position.
[36] In February 2017 Mr Hyde approached his treating General Practitioner Dr Afilaka
and asked that he provide an assessment and certify if he was fit to resume the full duties of
my role.
[37] Dr Afilaka had been his treating doctor for approximately seven years
[38] Mr Newell on about 3 February 2017 gave Mr Hyde a bundle of documents which Mr
Hyde was to provide to Mr Afilaka for the purpose of his assessment.
[39] The bundle of documents were,
A Position Description for Case Management Officer;
A Position Description that relates to “Defence and Control” strategies that are part
of his role;
A Position Description that relates to training for Defence and Control;
[2018] FWC 2465
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Three “Summary of Job Demands” documents that collectively set out the full range
and frequency of duties that are required as part of his role.
[40] Mr Hyde consulted Dr Afilaka on 4 February 2017 and Mr Hyde provided the doctor
with all the documents given to him by Mr Newell.
[41] Dr Afilaka provided a medical certificate dated 15 February 2017 which was provided
to Ms Argiropulos on about 16 February 2017.
[42] That certificate3 states,
“Mr Richard Hyde has been examined by me.
He WILL BE FIT TO CONTINUE his USUAL OCCUPATION as detailed in his
position description - as case management officer, he will be able to go through the
defence and control training and defence and control - in field.”
[43] Sometime after this Mr Hyde attended a meeting with Mr Marc Lahad (Mr Lahad), Mr
Newell, Ms Argiropulos and his Unit Manager, Ms Natasha O’Donnell during which he was
advised that Serco were not willing to allow him to resume his full duties. Serco advised him
they wanted to obtain an independent medical opinion.
[44] Mr Hyde’s evidence was that sometime later he was advised by Mr Lahad that Serco
would be content with a report from his treating Orthopaedic Surgeon Dr Mukundala and so
at the direction of Mr Lahad, he sent a fax to Dr Mukundala’s surgery to provide them with
Mr Hyde authority to discuss his condition with Serco.
[45] Mr Hyde’s evidence was that other than this he had not met or communicated with Dr
Mukundala following the last appointment he had with him on 23 November 2017.
[46] Mr Lahad sent an email to Dr Mukundala on 13 March 2017 which contained Serco’s
request for a medical opinion regarding Mr Hyde’s fitness for work.4
“Subject: Request for Information - Richard Hyde Fitness to Complete Training and
Role [SIC]
Classification: SERCO IN CONFIDENCE
Attention: Dr Mukundala
Re: Mr Richard Hyde, non-work related ankle injury.
Thank you for taking the time to review Richard for his non work related ankle injury.
As you are aware Richard has been completing suitable duties at Acacia prison since
17/08/16.
Mr Hyde remains in a movements area of the prison which is a non-prisoner facing
task, administrative based only. Since Richard has been back at work his range of
movement in the ankle has increased, he does not experience pain but remains in
[2018] FWC 2465
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movements as he cannot have prison contact as he is unable to run nor respond with
defensive movements if need be.
Defensive movements are minimal in the day to day tasks of an officers role but
imperative to the role and all officers are required to be fit to undertake the inherent
moves at any time. The remainder of an officers role is to case manage prisoners,
admin and checking/searching type tasks. I have attached Richard's job description
for your information which includes the physical requirements.
Serco is willing pay for the invoice and cost of the report that is written on Richard's
behalf. Can you please forward me the invoice pertaining to the assessment below.
Could you please examine Richard's ankle along with the attached document and
comment on the following:
1. Richard’s suitability to perform his pre-injury duties specifically defensive
movements & ability to have prisoner contact;
a. If Mr Hyde is not currently fit to perform his pre-injury duties please
indicate approximate timeframes for full recovery.
2. Any side effects from treatment/medication that may impact his ability to
perform his duties.
3. Any current work restrictions Serco need to be aware of to safely
accommodate Richard’s ankle injury.
4. Any other information Serco should be aware of regarding Richard’s ankle.
5. What is your opinion on Mr Hyde’s ability to perform the DETT component of
his role? Is he fit to undertake this training?
If you could please provide your response in the form of a letter for Mr Hyde that
would be greatly appreciated so I can assist in facilitating Richard with the correct
duties.”
[47] Dr Mukundala provided a medical report in response to Mr Lahad’s request on 1 May
2017. Relevantly the report reads as follows,
“Post-operatively, he was initially put on a backslab and then went on to a fibreglass
cast which stayed on for nearly five weeks or so. We then changed his cast to a CAM
walker. Richard had followed all of the instructions diligently and had no problems
post-operatively. On 18 November 2016, a CT scan had been performed on his right
ankle to confirm the fusion and bony consolidation of the tibia talar joint.
On 23 November 2016, he had his last appointment with myself at Joondalup Health
Campus. It was nearly six months since I operated on his right ankle. Clinically, the
ankle joint was solidly fused. He did not have any pain in the joint both at rest and on
weight bearing. He was walking comfortably doing most of his jobs. He only
complained of mild discomfort just below the fusion level which corresponds to the
[2018] FWC 2465
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level of sub talar joint. We had mentioned that he had already got mild arthritis in this
joint. As the pain levels are very minimal, I would not advise him to have any injection
therapy. I had then referred him to hydrotherapy by a physiotherapy in order to
improve his gait and range of movement of other joints other than the tibia talar joint.
I understand that Richard is currently performing his full duties at Acacia Prison.
However, he is confined to non-prison facing tasks and administrative duties only. I
have also noted that the range of movement of his right lower limb has improved. This
is because he has got extra range of movement in other joints other than the ankle
joint that has been completely fused. Richard has got a non-antalgic gait but he would
find that whenever there is any need for running or sprinting, he would find it very
difficult as the ankle joint is completely fused. I have also been informed that his
defensive movements are very minimal in the day to day tasks as an officer.
Coming back to your specific questions:
1. Richard’s suitability to perform his pre-inury duties specifically defensive
movements and ability to have prisoner contact:
a. If Mr Hyde is not currently fit to perform his pre-injury duties please
indicate approximate timeframes for full recovery.
Considering the whole picture on 23 November 2016, I am pretty confident that he has
fully recovered from the major surgery he underwent. The right ankle joint had fused
both clinically and radiologically. However, one should note that the movements of
this joint level are completely abolished. Thereby, Richard would depend more on the
flexibility of the other joints other than the ankle joint that has been fused. Thereby, I
would conclude that he would never be fit to perform his pre-injury duties at 100%
level. However, he would fit into taking part in defensive movements and get in touch
with the prisoners as well. In a case of emergency, he would definitely need aide from
his colleagues as he would be unable to sprint/run on this fused ankle joint. One has to
remember that the gait on this fused ankle joint is not a normal gait. This surgery has
been performed to relieve pain. The downside of his surgery is a loss of movement at
the ankle joint level. Thereby,
I suggest that we need to compromise his pre-injury duties and I would highly
recommend him to have a supernumerary around and respond to any emergency or
defensive movements whenever they are needed.
2. Any side effects from treatment/medication that may impact his ability to perform
his duties?
Currently, I note that he is not on any kind of medication for his pain. Thereby, I am
pretty confident that he should be able to perform his duties without any side effects.
3. Any current work restrictions Serco need to be aware of to safely accommodate
Richard's ankle injury?
As mentioned earlier, Richard would need help from his colleagues in the case of any
emergency situation where sprinting/running and defensive movements are involved.
[2018] FWC 2465
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Besides this, I would also keep in mind the mild osteoarthritic changes in the sub talar
joint which would progress in time to come.
4. Any other information Serco should be aware of regarding Richard’s ankle?
As mentioned before, Richard is also suffering from mild osteoarthritis of the sub talar
joint. This could progress in future as the proximal/tibia talar joint has already been
fused and there would be more stress at this sub talar joint level which would lead to
progression of osteoarthritis in the future. This would also entail him to have surgery
done.
5. What is your opinion on Mr Hyde's ability to perform the DETT component of his
role? Is he fit to undertake this training?
I would like to apologise that I am not fully aware of this DETT component. My guess
would be that you are relating his role with emergency situations and to undertake
training. I am quite happy for, Richard to take part in DETT training provided he is
able to withstand this training in terms of pain tolerance.” (Underlining added)
[48] The parts of the medical report of Dr Mukundala (the Report) which concerned Serco
are underlined above and in summary were that,
The movements of this joint had been completely abolished.
Mr Hyde would never be fit to perform his pre-injury duties at 100% level.
In a case of emergency Mr Hyde would definitely need aide from his colleagues as
he would be unable to sprint/run on his fused ankle joint.
The suggested need to compromise his pre-injury duties and the recommendation for
Mr Hyde to have a supernumerary around and respond to any emergency or
defensive movements whenever they are needed.
[49] The evidence of Mr Southerton was that the findings in the Report were concerning to
Serco as the position required Mr Hyde, as a Custodial Officer, to respond to highly volatile
situations within the prison in a safe and effective manner. The position required each
Custodial Officer to apply what they are taught in the DETT at any time and as required. The
conclusions in the Report that Mr Hyde would need a supernumerary in an emergency
situation would, in his view, be untenable on a day to day basis and could make a volatile
situation even worse.
[50] It is not disputed that at the time of Dr Mukundala writing the Report he had not seen
Mr Hyde since 23 November 2016.
The requirements of Mr Hyde’s pre– injury position
[51] The requirements of the position Mr Hyde held before he injured his ankle are detailed
in a number of Serco documents5 which are,
A Position Description for Case Management Officer:
[2018] FWC 2465
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This position description details various duties which involve supervision of prisoners.
Relevantly under environmental factors this includes,
“The environment is primarily calm and ordered however they may without warning
have to respond to a volatile situation providing defence and control or deal with
medical emergencies; this is variable and unpredictable.”
“Overall Physical Demand Level: Medium – Heavy (heavy demands are minimal such
as defence and control however are essential to being able to perform the role)”
A Position Description for Defence and Control – In Field:
This position description relevantly includes,
“Defence and Control strategies may be used by Custodial Officers in the execution of
their duties where a prisoner becomes aggressive or encroaches on a Custodial
Officers space...if the situation continues to escalate where customer dual offices use
necessary force to restrict movement of the prisoner. Where there is continued
escalation the Custodial Officer is required to resolve the situation, bringing the
prisoners prisoner to a secure position where handcuff can be applied as required.
Situations may escalate quickly and Custodial Officers may be required to respond
quickly to an incident with sharp sudden movements.
…
During off site visits only 1 to 2 officers may be available to undertake defence and
control strategies as needed.”
“This may also be required during off site travel or visits where the Custodial Officer
may need to respond in a public or unfamiliar area and ensure safety of all parties.”
A Position Description for Defence and Control Training:
This position description relevantly includes,
“During training movements and actions are within a controlled environment with
gradually increasing use of force if officers become more competent.
The premise of training is to ensure a Custodial Officers ability to intercept, stabilise
and control a situation which may arise with the prisoner.
Initial training is conducted over three days with a combination of theory and
practical sessions each day. The training is 80% practical with Custodial Officers
practising on each other. Custodial Officers also attend refresher training for two
days annually.”
“Involves repetition and frequency of dynamic body movements against force over a two
to (sic) day period.”
[2018] FWC 2465
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A document titled Summary of Job Demands, one for Case Management Officer, one for
Defence and Control – in Field and one for Defence and Control Training.
These detail the range of job demands and the frequency each is required.
For each job demand the document specifies the average time across a full day a worker
spends on this task as either, Occasional = 0 – 33%, Frequent = 34 – 66% or Constant = 67 –
100%. These frequencies, where applicable, follow the detail of the particular job demand
below.
Relevantly these job demands include,
Case Management Officer:
“Defence and control – when undertaking manoeuvres; transfer of weight from one to
two legs; lunging forward when restraining” Occasional = 0 – 33%
“Defence and control – May be required to escort prisoners with a degree of force. May
be in wet weather conditions where ground can become muddy and slippery, running
50 m in short bursts. Can be rough trip hazards.” Occasional = 0 – 33%.
“Potential for exposure to confrontational situations e.g. hostile or aggressive
prisoners”
Defence and Control – In Field:
“When approaching prisoner or escorting prisoner in restraint position when outdoors
in compounds. May be in any weather conditions whilst applying force. May be
required to run for a short period.” Frequent = 34 – 66 %.
Defence and Control Training:
“When undertaking manoeuvres; transfer of weight from one leg to 2 legs; lunging
forward when restraining.” Constant = 67 – 100%.
“While completing training tasks, may complete short runs or walk within the facility”
Occasional = 0 – 33%
[52] Whilst there was some debate amongst witnesses about how often some of these
particular job demands arise there is no dispute that the documentation from Serco details the
inherent requirements of Mr Hyde’s pre-injury position.
[53] Mr Hyde himself gave some evidence about these matters.6
[54] His evidence was that the general prison environment allows prisoners to move over
large areas unrestricted and the prisoners may tend to act on impulse in an unpredictable way
and they will take advantage of any opportunity that they can make use of. He agreed that he
may find himself in this environment either on his own or with someone else and he may need
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to apply the control and defence techniques and so may be exposed to danger. His opinion
was that recognising this he believed he could do the job and his ankle would be fine.
[55] He agrees that the control and defence techniques are very much about maintaining
balance and stability and his ankle is fundamental to balance and stability. He agrees that
when he braces himself for balance and stability being able to flex his ankle is quite important
for that.
[56] He agreed that the techniques that he is trained in are all about control, sudden lunges
and sudden acceleration to achieve a particular aim with a prisoner. And he agreed that to get
that propulsion to achieve the sudden forward lunge would involve some flexibility around
the ankle.
[57] Mr Hyde also agreed that a part of the control and defence techniques is the controlled
bringing down of a prisoner to the ground. He agreed that if he was trying to bring a prisoner
down to the ground he may be taking the prisoners weight onto himself and that this weight
would also be felt on the ankle and he agreed that being able to flex the ankle would be a
large part of the taking down of the prisoner.
[58] It was put to Mr Hyde that if he found himself on the ground getting up from the
ground in a dangerous situation with his fused ankle would have its own problems and his
answer was that he did not have an issue with it and he has quite a lot of movability in his
ankle. He agreed however that his treating Orthopaedic Surgeon has a different view.
[59] Mr Hyde agreed7 if he was reinstated to his pre-injury position he will invariably need
to at times apply the control and defence techniques and he understands Serco is concerned
about the risks to him in that situation but he feels he can do the job and that anybody who
works there whether or not they’ve had an ankle fusion are subjected to the same risks.
[60] He agrees that in the work environment Prison Officers very much rely on other
employees and to a point it is almost be life-and-death that people you work with do their jobs
properly.
[61] With respect to running as a requirement of the position, the documentation above
which details the inherent requirements does expressly include being able to run 50 m in short
bursts and to run for short periods.8
[62] Evidence was given by a number of witnesses regarding what is required in an
emergency situation which is known as a “code red”.
[63] Mr Carlson’s evidence was that the most common types of code red situations were
associated with either staff or prisoner assaults or medical emergencies. In such circumstances
the areas closest to where the alarms have been raised would dispatch staff immediately on
foot. His evidence is there is no expectation that Officers would run in response to a code red.
Similar evidence was given by Mr Parsons that Officers are not required to run in response to
a code red but should move with haste.
[64] Mr Hyde’s evidence was that it is not Serco’s policy that Officers run at any specific
pace in response to an emergency and it is emphasised that Officers should be mindful of
hazards and move at a comfortable pace. In Mr Hyde’s evidence he included an excerpt from
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Serco’s Occupational Health & Safety policy manual printed on 3 June 2007.9 Whilst I note
this includes various statements about being cautious in responding to a code red it also says,
“Often when responding to a code red, officers will respond quickly to a situation which
often involves running to another location.
…
Whilst running, the chances of losing your footing are increased.” (Underlining
added)
[65] Mr Hyde also referred to an email from 2009 which refers to an Officer sustaining
fractures to his wrist having slipped whilst running in response to a code red.
[66] Considering all this evidence I find that that while Officers are not required by Serco
to run, at times Officers do in fact run when responding to a code red emergency situation.
[67] The evidence is also that an Officer responding to a code red, when they arrive at the
location, is expected to immediately be able as necessary to implement DETT in a safe and
effective manner.10
[68] Mr Hyde’s evidence was that his condition and fitness had improved significantly
between 23 November 2016 and 1 May 2017. His evidence was that at November 2016 he
was only able to run for short distances of less than 1 km but by April 2017 he was able to
tolerate running for longer distances of approximately 1 km at a time and that his ability to
run longer distances has continued to improve.11
[69] On 3 June 2017, Serco issued Mr Hyde with a letter seeking further information from
him regarding his fitness for work and capacity to undertake the inherent requirements of his
role (the Show Cause Letter). The Show Cause Letter referred to the 1 May 2017 Report from
Dr Mukundala and stated,
“Serco’s view is that the report concludes that you cannot now perform the inherent
requirements of your job. Any modifications that Serco needs to consider as a result of
the report cannot be reasonably accommodated. Further, accommodations Serco
could reasonably make would still leave you performing restricted duties, not your full
range of duties.
Therefore, it is Serco’s view that you are incapable of performing the inherent
requirements of your job or any modifications thereof.
Consequently, you are now required to show cause by responding either in writing or
in an interview with Serco, as to why your employment should not be terminated due
to incapacity.”
[70] The letter invited Mr Hyde to provide any comments in response in writing within 10
days.
[71] Mr Hyde was placed on a period of paid leave by Serco.12
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[72] On behalf of Mr Hyde his union approached Serco and requested that the timeframe
for his response to the Show Cause Letter be extended. Mr Hyde during this period had the
assistance of his union in formulating his response to the Show Cause Letter.
[73] On 20 June 2017 Ms van der Merwe from Mr Hyde’s union wrote to Serco on Mr
Hyde’s behalf and raised the issue of Mr Hyde getting a second medical opinion.
[74] Serco was agreeable to this happening and allowed more time for this to occur.
[75] However Mr Hyde, assisted by his union, decided not to get a second medical report.13
[76] Ultimately Mr Hyde did not obtain a second medical opinion for Serco to consider
prior to Serco making the decision to dismiss him.
[77] Mr Hyde did provide a written response to the Show Cause Letter on 30 June 2017
and the union assisted him with this.14
[78] Mr Hyde’s four-page response to the Show Cause Letter15 explained in detail the
history of the matter. Mr Hyde complained that he had earlier received clearances to return to
work from both Dr Mukundala and Dr Afilika. He states he believes Dr Mukundala does not
have a complete understanding of the practical nature of his role which has led to his incorrect
conclusion that he is unable to perform the inherent requirements of the job. Mr Hyde
complains that his answers filled out honestly on the Physical Readiness Form for the DETT
have been used against him and do not suggest that he is unable to safely complete the DETT
refresher. Mr Hyde complains that he did not have an opportunity to discuss with Dr
Mukundala his account of the duties he is required to undertake. Mr Hyde disputes Dr
Mukundala’s findings largely based on a belief that Dr Mukundala failed to understand truly
the requirements of the position. Mr Hyde stated he is more than capable of performing the
full range of duties required and requested an opportunity to participate in the DETT refresher
which would provide a fair indication of his fitness to continue as a Prison Officer. Mr Hyde
points to his past commitment to his role and his successful achievements. Mr Hyde states he
sincerely wishes to return to his work and continue on with his career with Serco.
[79] Mr Hyde agrees that he had an adequate opportunity to respond to the Show Cause
Letter and had the support of the union to do so. The union also represented him at the final
termination meeting.16
[80] Mr Hyde agrees that it made sense that Serco would rely on Dr Mukundala’s medical
Report given he was his treating Orthopaedic Surgeon however he does not agree that the
Report was in clear terms.17
[81] Serco then met with Mr Hyde and his union representative on 11 September 2017 and
he was advised that his employment was being terminated as of that date. The letter of
termination was read out to Mr Hyde at his request.
[82] Serco paid to Mr Hyde five weeks’ pay in lieu of notice.
[83] On 2 October 2017 Mr Hyde’s legal representatives filed this application with the
Commission.
[2018] FWC 2465
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[84] On 1 November 2017 Mr Hyde’s legal representatives wrote to Dr White a Consultant
Occupational Physician advising him of Mr Hyde’s circumstances and seeking a report from
him as to Mr Hyde’s fitness for work.
[85] Dr White reviewed Mr Hyde in person on 10 November 2017.
[86] Dr White provided a report to Mr Hyde’s legal advisers dated 12 November 2017
wherein he detailed his opinion that Mr Hyde is able to perform his pre-injury duties, he is
able to perform defensive movements and have prisoner contact, there are no work
restrictions necessary and Mr Hyde is able to perform the DETT component of his role.
[87] The Applicant’s legal representatives did not file a witness statement from Dr White.
[88] Dr White’s 12 November 2017 report18 was accepted as evidence as well as a
supplementary report dated 20 January 201819 wherein Dr White states that he saw no
medical reasons why Mr Hyde would not be able to perform defensive techniques displayed
in a video of persons performing defensive techniques in a training environment. The
Respondent did not object to the reports being tendered into evidence however challenges
their relevance and validity.
Applicant’s submissions
[89] The parties presented the case on the basis that the test for determining whether there
was a valid reason for dismissal in a case relating to capacity was as set out in Lion Dairy &
Drinks Milk Ltd v Norman20 (Lion Dairy). A Full Bench of the Commission has since held
that test to be wrong, and the correct test is whether, at the time of the dismissal an applicant
suffered from the alleged incapacity, with such findings based on the relevant medical and
other evidence before the Commission: CSL Limited T/A CSL Behring v Chris Papaioannou21
(CSL Limited) at [77].
[90] The weight of the evidence before the Commission, which includes the evidence of an
Occupational Physician Dr White, is that the Applicant’s disability did not prevent him from
performing the inherent requirements of his role.
Dr Mukundala’s Report dated 1 May 2017
[91] The Report was prepared based on Dr Mukundala’s examination of Mr Hyde
conducted on 23 November 2016, and it was informed by instructions contained in an email
from the Respondent’s HR Advisor, Mr Lahad sent on 13 March 2017.22
[92] Amongst other things, the Applicant submits the instructions from Mr Lahad to Dr
Mukundala required Dr Mukundala to assume the Applicant was unable to run and could not
respond with defensive movements. The basis for those assumptions was not established. At
Exhibit A3, paragraphs 73 to 75 the Applicant’s evidence was,
“I do not agree [that I was unable to run and could not perform defensive movements]
and I do not know why Marc Lahad stated that I could not run or perform defensive
movements.”
[2018] FWC 2465
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[93] The Report was prepared without a contemporary examination of the Applicant. The
Applicant was last reviewed by Dr Mukundala on 23 November 2016, over 5 months prior to
the date of the Report.23
[94] As at 23 November 2016, the Applicant had an altered gait and was only able
to run “for relatively short distances of much less than 1 kilometre”.24 His situation had
changed by May 2017 when the Report was requested.
[95] It is submitted Dr Mukundala’s Report was tainted, unreliable or flawed to the extent
that it could be relied upon as evidence of the Applicant’s capacity as at the date of
termination.
Dr White’s report dated 12 November 2017
[96] Dr White’s report of 12 November 2017 was prepared based on a Fitness For
Work Assessment carried out on 10 November 2017.
[97] Dr White’s report contains clear findings that the Applicant is able to,
a. Perform his pre-injury duties;
b. Perform defensive movements and have prisoner contact; and
c. Participate in the Defensive Equipment Techniques Refresher.
Dr White’s report dated 20 January 2018
[98] Dr White’s further report was prepared with respect to the video evidence attached to
the witness statement of Mr Newell.25
[99] Dr Mukundala’s 1 May 2017 Report does not identify any certain tasks the Applicant
cannot perform other than running or sprinting.
[100] The Applicant submits the Respondent’s reasoning as described above was prejudiced
reasoning in that the Respondent concluded the Applicant was unable to perform the inherent
requirements based on his disability and not based on his capacity.
Respondent’s submissions
[101] Serco submits that the termination of the services of Mr Hyde on 11 September 2017
was,
a. for a valid reason related to Mr Hyde’s capacity to perform the inherent
requirements of his role as a Custodial Officer at Acacia Prison;
b. effected in circumstances where Mr Hyde was provided with procedural fairness in
that he was given an opportunity to respond to the reasons for dismissal relating to his
medical incapacity; and
[2018] FWC 2465
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c. a measured response of Serco with respect to the inherent requirements of his role
and the medical evidence before Serco at the time of termination of employment.
[102] It is the submission of Serco that the application should be dismissed.
[103] The Respondent submits there was a valid reason for the dismissal that related to Mr
Hyde’s capacity to perform the inherent requirements of his role in that,
a. Serco was in receipt of medical evidence from Mr Hyde’s treating Orthopaedic
Surgeon stating,
i. that Mr Hyde “would never be fit to perform his pre-injury duties at 100%
level”; and
ii. that Serco compromise Mr Hyde’s pre-injury duties and have a
supernumerary around to assist Mr Hyde respond to any emergency or
defensive movements.
[104] As to the proper approach to determining this matter Serco submit the facts and
circumstances of this application can be distinguished from the facts and circumstances in the
CSL Limited case. In the CSL Limited case, there was, prior to the implementation of the
termination of the employment a material difference between the two medical opinions both
of which were before the employer.
[105] It is submitted, on behalf of the Respondent, that in determining this application for an
unfair dismissal remedy, the Commission is not obliged or required to adopt either the Lion
Dairy approach or the Jetstar Airways Ltd v Neeteson-Lemkes26 (Jetstar) approach, in that at
the time of the termination of the employment of Mr Hyde,
a. there was no “apparent conflict” in the medical opinions that fell to Serco to be
resolved (or anyone); and
b. the un-contradicted evidence of the Applicant’s own Orthopaedic Surgeon (who
both recommended and performed the fusion of the Applicant’s ankle) confirmed that
the Applicant was suffering from an incapacity.
[106] To the extent that in these proceedings there was an attempt to create the appearance
of an apparent conflict in the medical opinions (which is not conceded by the Respondent)
this arose out of a medical report that was prepared at the instigation of the lawyers for the
Applicant for the purposes of the unfair dismissal proceedings, and was not a matter that was
put before the employer in and around the time of the termination. The only other medical
certificate provided by Dr Afilaka, (obtained at the instigation of the Applicant) did not
attempt to deal with the questions that were initially and repeatedly advanced by Serco with
respect to the Applicant’s injury, and were ultimately addressed in detail by the Applicant’s
treating Orthopaedic Surgeon, Dr Mukundala.
[107] The Applicant was not denied the opportunity to obtain and submit any such medical
evidence to contradict the written Report of the Applicant’s treating Orthopaedic Surgeon. To
the contrary, the Applicant and his advisers, in the form of his union, elected to not pursue
this option in circumstances where,
[2018] FWC 2465
17
a. they collectively sought and obtained an extension of the timeframes for
determination of the employer’s concerns regarding capacity; and
b. they were aware that the Respondent would make its decision based upon the
findings of the Applicant’s treating Orthopaedic Surgeon, Dr Mukundala.
[108] To the extent that there was any evidence of capacity before the Commission by way
of a medical opinion, it remains the medical opinion of Dr Mukundala, the Applicant’s
treating Orthopaedic Surgeon.
[109] In the alternative, it is submitted that there is nothing in the views of Dr White which
would create the necessary and/or sufficient evidentiary basis to result in a finding to the
effect that the conclusion reached by Serco was not valid, noting that at [77] of the CSL
Limited decision, the Full Bench held,
“In a dismissal related to the person's capacity, section 387(a) requires the Commission
to consider and make findings as to whether at the time of the dismissal, the Applicant
suffered from the alleged incapacity. Such findings are to be based on the relevant
medical and other evidence before the Commission.” (Underlining added)
[110] Irrespective of any apparent tension between the Lion Dairy approach and the Jetstar
approach, the Commission should find that at the time of the dismissal of the Applicant, Mr
Hyde was suffering from the incapacity (so described) and that the termination of the
employment was for a valid reason.
[111] It is submitted that there is little in the CSL Limited decision which articulates or
suggests any apparent error with reference to the principles contained in Lion Dairy.
[112] It is submitted that in the case of the Applicant in these proceedings, the Report of his
treating Orthopaedic Surgeon, Dr Mukundala, was and remains a sufficient evidentiary basis
for the employer to make an informed decision with respect to the capacity of the Applicant
and that on this basis alone, it was and remains a valid reason for the termination.
[113] It is submitted that on the evidence there was a valid reason connected with the
capacity of the employee that led to the decision to dismiss. If the Commission were to apply
the Jetstar approach (whilst noting the submission of the Respondent that CSL Limited can
easily be distinguished) the Commission, on the evidence before it, would comfortably find
that at the time of the dismissal, the Applicant clearly and unambiguously suffered from the
alleged incapacity.
Legislation
[114] Section 387 of the Act sets out the matters the Commission must have regard for when
determining an unfair dismissal remedy application.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
[2018] FWC 2465
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(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Applicable Principles
[115] The Applicant submits that the Full Bench decision in CSL Limited27 says that the test
in this case is for the Commission to determine whether at the time of the dismissal Mr Hyde
suffered from the alleged incapacity, with such findings based on the evidence before the
Commission at the hearing.28
[116] The Applicant submits that part of that evidence the Commission should have regard
for, based on CSL Limited, is the evidence of Dr White, including his reports dated 12
November 2017 and 20 January 2018.
[117] From that point onwards the Applicant’s submissions broadly follow the respective
principles in Lion Dairy.29
[118] The Respondent submits however CSL Limited is distinguishable from this matter but
thereafter also broadly follow the Lion Dairy principles.
[119] The Respondent submits the CSL Limited decision refers to the perceived “tension”
between the majority decision in Lion Dairy and Jetstar and [36] to [37] of CSL Limited
explain the nature of the perceived “tension”.
[120] The Respondent submits that in the circumstances of an unfair dismissal application
relating to the dismissed employee’s capacity, the apparent “tension” between Lion Dairy and
[2018] FWC 2465
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Jetstar refers to circumstances where there is some conflict in the medical opinions upon
which the decision to dismiss is made.
[121] The Respondent submits that Lion Dairy says it would “[u]sually be incumbent on the
employer to resolve that conflict” but Jetstar says that in the circumstances of any apparent
conflict in medical opinions, the Commission is required to consider and make findings as to
whether at the time of the dismissal, the Applicant suffered from the alleged incapacity based
upon relevant medical and other evidence before the Commission.
[122] The Respondent submits the facts and circumstances of this matter can be
distinguished from the facts and circumstances in CSL Limited.
[123] In the CSL Limited, there was, prior to the implementation of the termination of Mr
Papaioannou’s, a material difference of opinion between,
a. Dr Bloom, who was described as the occupational physician and who provided a
report pursuant to what was described as an independent medical examination; and
b. the diagnosis of Dr Congiu, who was described as Mr Papaioannou’s long term
treating psychiatrist.
[124] The difference was that Dr Congiu, noted that Mr Papaioannou’s condition was
temporary in nature and opined that the estimated period of recovery would be six months
however Dr Bloom gave a prognosis of recovery of within 12 to 24 months.
[125] Importantly both medical reports or assessments were provided to the employer prior
to termination.
[126] In the decision at first instance, the Commissioner found that the reliance of the
employer on the advice of Dr Bloom constituted,
a. a clearly defensible decision adopted by the employer; and
b. a valid reason for the dismissal.
[127] However, the ultimate finding of “harshness” which resulted in the order of
reinstatement had, as its evidentiary basis, the perceived denial of a benefit the Commission
found existed in the employer’s Agreement, which the Commissioner found was intentionally
designed to be generous and to cover long periods of absence by the employee. Accordingly,
the reinstatement order was an attempt to remedy the denial of the Applicant, Mr
Papaioannou, to a salary continuation scheme.
[128] On appeal the Full Bench recognised that at first instance it was apparent the
Commissioner’s decision was an application of the Lion Dairy approach.30
[129] Ultimately the Full Bench in CSL Limited held that,
“[75] The approach advanced by the majority in Lion Dairy is inconsistent with the
weight of authority and the proper construction of s 387 (a). It is, with respect, plainly
wrong.
[2018] FWC 2465
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[77] Contrary to the proposition in Lion Dairy, there is no basis to leave the
resolution of any conflict in medical opinion to the employer. The Commission is
frequently called upon to resolve evidentiary conflict, including the assessment of
expert evidence.
[77] The tension between Lion Dairy and Jetstar is to be resolved by the adoption of
the approach in Jetstar. In a dismissal related to the person’s capacity, s. 387 (a)
requires the Commission to consider and make findings as to whether, at the time of
dismissal, the Applicant suffered from the alleged incapacity. Such findings are to be
based on the relevant medical and other evidence before the Commission.”
(Underlining added)
[130] Considering the parties’ submissions on the implications of the Full Bench decision in
CSL Limited I agree with the Respondent that the Full Bench in CSL Limited was dealing
with situations where there were conflicts in the medical opinions known to the employer at
the time the decision to dismiss was made. This indeed was the case in both Lion Dairy and
the first instance decision the subject of appeal in CSL Limited. However I do not agree that
the Full Bench decision in CSL Limited is only applicable to unfair dismissal remedy
applications where there is conflicting medical opinion. The decision in my view has general
application to cases where a dismissal is related to the person’s capacity.
[131] The Full Bench in CSL Limited rejected the particular part of the Lion Dairy approach
which had previously held that the resolution of any conflict in medical opinion was to be left
to the employer and instead reinforced the requirement of section 387 (a) of the Act in
capacity cases for the Commission to consider and make findings as to whether at the time of
the dismissal the employee suffered from the alleged incapacity.
[132] I do not however accept the Applicant’s submission that the Full Bench’s reference in
CSL Limited at [77] to the Commission’s findings as to alleged incapacity at the time of
dismissal being based on the “…relevant medical and other evidence before the Commission”
is authority for the proposition that the Commission must have regard for a new medical
opinion an applicant obtains after dismissal which an applicant then argues demonstrates a
conflict in medical opinion which the Commission must resolve.
[133] In this matter at the time the decision to dismiss was made the opinion of Dr White
had not created any conflict with the medical opinions available to be considered by Serco
because Dr White’s opinion did not at that point in time exist.
[134] The evidence is no approach was made to Dr White for a medical opinion until after
Mr Hyde had been dismissed and in fact he was only approached after this application had
been made to the Commission.
[135] In this case when determining whether there was a valid reason for dismissal the
Commission should not have regard for Dr White’s evidence and his reports which were not
in existence at the time the decision to dismiss Mr Hyde was made.
[136] Dr White’s medical opinion was not a fact that existed at the time of the dismissal. In
this case the medical opinion and evidence of Dr White is not relevant to the determination of
whether or not there was a valid reason for Mr Hyde’s dismissal.
[2018] FWC 2465
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[137] Section 394, under which this application is made, is found within Part 3-2 of the Act
and section 381 sets out the Objects of Part 3-2. These Objects include, at (2), that the
procedures and remedies and the manner of deciding on and working out such remedies are
intended to ensure that a “fair go all round” is accorded to both the employer and employee
concerned.
[138] In my view it would also not be consistent with providing a “fair go all round” to
allow a medical opinion that did not even exist at the time an employer made a decision to
dismiss to be used to challenge the validity of the reasons for that decision.
[139] I do accept though that should I decide the dismissal was unfair that Dr White’s
evidence may be relevant when considering remedy.
Valid reason
[140] The medical opinions available at the time of the decision to dismiss which the
Commission should have regard for are the medical certificate of Dr Mukundala dated 24
November 2016, Dr Afilaka’s report dated 15 February 2017 and Dr Mukundala’s Report
dated 1 May 2017.
[141] The medical certificate of Dr Mukundala dated 24 November 2016 certifies Mr Hyde
“...is fit to work (full duties)” That medical certificate was issued in response to an email
request to Dr Mukundala which asked him to examine Mr Hyde’s ankle and included attached
documentation which specified the physical requirements of Mr Hyde’s job and asked Dr
Mukundala to comment on four questions with regard to Mr Hyde’s suitability to perform his
pre-injury duties, specifically defensive movements and the ability to have prisoner contact,
any side-effects from treatment/medication that may impact his ability to perform his duties,
any current work restrictions to safely accommodate his ankle injury and any other
information Serco should be aware of regarding his ankle.31
[142] Self-Evidently Dr Mukundala did not respond to the questions Serco asked him or
provide any detail for his opinion.
[143] Given that Dr Mukundala did provide a detailed response to these same questions at a
later date in his 1 May 2017 Report, I take the medical opinion expressed in this later Report
as superseding Dr Mukundala’s 24 November 2016 medical certificate.
[144] Dr Afilaka’s report dated 15 February 2017 stated that Mr Hyde will be fit to continue
his usual occupation as detailed in his position description as a Case Management Officer and
he will be able to go through the defence and control training and defence and control in field.
[145] Dr Afilaka was Mr Hyde’s general practitioner whereas Dr Mukundala was the
Orthopaedic Surgeon who had seen Mr Hyde and recommended the particular operation on
his ankle and had operated on Mr Hyde’s ankle. I accept therefore in this matter the opinion
of Dr Mukundala is to be preferred over the opinion of Dr Afilaka.
[146] I accept that the Report, an expert medical opinion of Dr Mukundala dated 1 May
2017, is the relevant medical opinion the Commission should have regard for when
determining whether Mr Hyde had the capacity to perform the full duties of his job.
[2018] FWC 2465
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[147] Mr Hyde himself agreed it made sense to have the opinion of Dr Mukundala rather
than going to another independent doctor or surgeon or consultant because Dr Mukundala
new all about his ankle.32
[148] Mr Hyde was aware in March 2017 of the questions Serco was asking Dr Mukundala
to respond to and that the questions were essentially the same as those which were originally
asked of Dr Mukundala on 18 November 2016. In fact Mr Hyde was copied into the email
dated 13 March 2017 from Mr Lahad to Dr Mukundala requesting his opinion and answers to
five particular questions.33
[149] At the time the expert medical opinion of Dr Mukundala was sought in early 2017 Mr
Hyde had no objections to this occurring nor did he object to the information included in the
email request dated 13 March 2017.
[150] The Applicant submits however the Commission should appreciate that Dr
Mukundala’s Report dated 1 May 2017 was based on Dr Mukundala’s examination of Mr
Hyde which had been conducted back on 23 November 2016. Separately the Applicant
submits that the instructions from Mr Lahad to Dr Mukundala also included statements which
were incorrect specifically,
“Since Richard has been back at work his range of movement in the ankle has
increased, he does not experience pain but remains in movements as he cannot have
prison contact as he is unable to run nor respond with defensive movements if need
be.”34
[151] Mr Hyde’s evidence is that some of this was not correct. Mr Hyde however did not
contact Dr Mukundala about this.35
[152] Mr Hyde’s evidence is that as at November 2016 he was only able to run on his
injured ankle for relatively short distances of much less than 1 km but by April 2017 he was
able to tolerate running for longer distances of approximately 1 km.36
[153] The evidence also was that, five weeks prior to Serco emailing Dr Mukundala, on 3
February 2017, Mr Hyde had completed the Physical Readiness Form for the DETT and in
doing so stated to Serco that he could not run 1 km.
[154] The Applicant submits the 1 May 2017 Report of Dr Mukundala was tainted,
unreliable or flawed and could not be relied upon as evidence of Mr Hyde’s capacity at the
date of termination.
[155] The Applicant submits that this Report should not be accepted as evidence of Mr
Hyde’s lack of capacity to do the job because of,
the incorrect instruction from Mr Lahad in the email to the effect that Mr Hyde was
unable to run and could not respond with defensive movements,
the fact Dr Mukundala last examined Mr Hyde in November 2016,
the absence of a physical capacity assessment being performed,
[2018] FWC 2465
23
the failure to consider Mr Lahad’s instruction that Mr Hyde’s range of movement in
the ankle had increased.
[156] A number of points can be made about these criticisms of Dr Mukundala’s medical
opinion.
[157] In answer to the first question asked of him Dr Mukundala’s conclusion that Mr Hyde
“…would never be fit to perform his pre-injury duties at 100% level” follows statements by
Dr Mukundala that he is confident Mr Hyde has recovered from the surgery, that his right
ankle joint has fused and that the movements of this joint level are completely abolished,
followed by the observation that Mr Hyde would therefore depend more on the flexibility of
other joints than the ankle joint that has been fused. It is not apparent that Dr Mukundala’s
opinion that Mr Hyde would never be fit to perform his pre-injury duties at 100% level was
infected by Mr Lahad’s emailed statement that Mr Hyde was unable to run or respond with
defensive movements. The assertion that it was is mere speculation by the Applicant’s
representatives.
[158] Further on in his answer to the first question Dr Mukundala states that Mr Hyde “[i]n a
case of emergency, he would definitely need aide from his colleagues as he would be unable
to sprint/run on this fused ankle joint” and then states that one has to remember the gait on
this fused joint is not normal and the downside of surgery is a loss of movement at the ankle
joint level. Again it is not apparent that Dr Mukundala’s opinion has been infected by Mr
Lahad’s incorrect statement that Mr Hyde was unable to run. Dr Mukundala did not refer to
Mr Lahad’s instruction that Mr Hyde “...is unable to run...” or use this wording, rather Dr
Mukundala expresses his opinion that Mr Hyde “…would be unable to sprint/run…” and his
explanation as to why this is the case is based on the state of Mr Hyde’s ankle following the
surgery.
[159] I do accept that Dr Mukundala’s opinion that Mr Hyde would be unable to run is, on
the evidence before the Commission at hearing, not correct. The evidence of Mr Hyde which I
accept is that by April 2017 he was able to tolerate running for distances of approximately 1
km.
[160] Dr Mukundala in his opinion however in answer to question one refers to Mr Hyde
being unable to “sprint/run” rather than only run and this opinion was expressed in the
context of “...a case of emergency...”. Further in the paragraph immediately before question
one Dr Mukundala says that Mr Hyde would find “...that whenever there is any need for
running or sprinting, he would find it very difficult as the ankle joint is completely fused.”
[161] I think it is reasonable to understand Dr Mukundala’s opinion as recognising that
sprinting and running are different.
[162] The concise Macquarie dictionary defines “Sprint” as follows,
1. to race at full speed, especially for a short distance, as in running, rowing, etc
2. to cover by sprinting: to sprint a hundred metres
3. a short race at full speed.
[163] Sprinting therefore means running at full speed for a short distance.
[2018] FWC 2465
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[164] I note that the Summary of Job Demands for a Case Management Officer includes
“…running 50 m in short bursts…”.37
[165] The evidence is that Mr Hyde was able to run for a distance of 1 km but there is no
evidence that he was able to sprint, meaning to run at full speed for a short distance.
Consequently Dr Mukundala’s opinion that Mr Hyde would be unable, or find it very
difficult, to sprint in a case of emergency stands.
[166] Secondly whilst it is correct Dr Mukundala last examined Mr Hyde in November 2016
there is nothing in the evidence that proves the state of Mr Hyde’s ankle had changed since he
was examined at this time. Mr Hyde’s evidence as to what had changed was limited to the fact
that since 2016 he has become able to tolerate running for longer distances. The absence of an
examination of Mr Hyde by Dr Mukundala in May 2017 is not a sufficient reason to reject Dr
Mukundala’s opinion.
[167] Separately Dr Mukundala was not asked to put Mr Hyde through a physical capacity
assessment and did not do so. There is no reason to conclude Dr Mukundala was unable to
reach a proper medical opinion based on his previous examination of Mr Hyde and his
knowledge of the state of Mr Hyde’s ankle.
[168] The argument that Dr Mukundala gave no consideration to Mr Lahad’s statement in
the email that Mr Hyde’s range of movement in the ankle had increased is also a mere
assertion. There is nothing in Dr Mukundala’s medical opinion that allows the Commission to
know whether Dr Mukundala was or was not influenced by this statement of Mr Lahad.
[169] Consequently I accept that the Commission should have regard for Dr Mukundala’s
medical opinion in the Report dated 1 May 2017.
[170] In the Report question one asked about Mr Hyde’s suitability to perform his pre-injury
duties, specifically defensive movements and his ability to have prisoner contact. In response
Dr Mukundala concludes that Mr Hyde would never be fit to perform his pre-injury duties at
100% level. His opinion was also that in case of emergency Mr Hyde would definitely need
aide from his colleagues as he would be unable to sprint/run on his fused ankle joint. He
suggested there would be a need to compromise Mr Hyde’s pre-injury duties and he highly
recommended Mr Hyde having a supernumerary around to respond to any emergency or
defensive movements whenever they are needed.
[171] In conclusion I am satisfied that the medical opinion of Dr Mukundala dated 1 May
2017 demonstrates that at the time of dismissal Mr Hyde could not perform the inherent
requirements of his job.
[172] In answer to the question of any current work restrictions Serco would need to be
aware of to safely accommodate Mr Hyde’s ankle injury Dr Mukundala repeated that Mr
Hyde would need help from his colleagues in the case of emergency situations where
sprinting/running and defensive movements are involved.
[173] Mr Hyde agrees that if he was reinstated to his job he would invariably on occasions
be required to apply control and defence techniques. He agreed there would be the
opportunity for a prisoner to seize upon him when he is on his own. In such a circumstance he
[2018] FWC 2465
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agreed he would apply his training and be expected to apply the control and defence
techniques, whether for a few moments or for a longer period of time. Mr Hyde agreed that he
could very well be doing this on his own as part of his normal duties and it is not a feature of
his position that there is a supernumerary with him all the time.38
[174] The work restrictions Dr Mukundala identified, to have aide from a colleague in the
case of an emergency situation where sprinting/running and defensive movements are
involved, is not a reasonable adjustment to Mr Hyde’s job in order to accommodate his
incapacity. It would not be a reasonable adjustment to require Serco to ensure Mr Hyde had a
supernumerary around whenever needed.
[175] Serco initially proposed that a medical opinion as to whether or not Mr Hyde was fit to
resume full duties be obtained from an independent medical expert. Mr Hyde agreed to this,
but Serco shortly thereafter agreed to have Mr Hyde’s own treating Orthopaedic Surgeon Dr
Mukundala provide that Report.39 Further having been provided with a copy of this Report
and the Show Cause Letter Mr Hyde, through his union representative, requested Serco allow
him more time in order to obtain an alternate medical report. Serco agreed to this and
extended the time period for Mr Hyde to respond to the Show Cause Letter. However Mr
Hyde, having consulted with his union, decided not to seek an alternate medical report.
[176] It was entirely reasonable for Serco to then rely upon Dr Mukundala’s Report when
Mr Hyde had been given the opportunity to challenge this Report by obtaining an alternate
medical opinion but chose not to do so.
[177] Based on Dr Mukundala’s Report of 1 May 2017 I find that Mr Hyde was not able to
perform the inherent requirements of his job at the time of his dismissal. This posed a risk to
the safety and welfare of other employees and to Mr Hyde himself had he returned to work as
a Custodial Officer. Mr Hyde’s inability to perform the inherent requirements of his job was a
valid reason for his dismissal.
Notification of the reason for dismissal
[178] Mr Hyde was notified of the reasons Serco was considering dismissing him in the
Show Cause Letter. Mr Hyde had been provided with a copy of Dr Mukundala’s Report of 1
May 2017.
Opportunity to respond to the reason for dismissal
[179] Mr Hyde had the opportunity to respond to the reasons Serco was considering
dismissing him before the final decision was made and he did so with a detailed written letter.
Refusal to allow a support person
[180] There was no refusal by Serco to allow Mr Hyde to have a support person present
during any discussions relating to the dismissal and in fact he was assisted by his union
representatives at the time.
[2018] FWC 2465
26
Size of the enterprise and human resource management expertise
[181] Serco is a large enterprise and has dedicated human resource management specialists
and expertise and the procedure followed by Serco was consistent with this.
Other matters
[182] The expert medical opinion was that Mr Hyde cannot perform the inherent
requirements of his job as a Custodial Officer. If this was ignored and Mr Hyde had resumed
work at the prison there would in my view have been risks to the safety of Mr Hyde himself
and other Officers as mentioned above. There would have also been risks to the safety of
prisoners and, because Custodial Officers sometimes escort prisoners off-site, risks to
members of the public. These concerns weigh against finding that the dismissal of Mr Hyde
was unfair.
[183] It is also a relevant matter that Mr Hyde has been employed since 2009.
Conclusion
[184] In all the circumstances the dismissal of Mr Hyde was not harsh, unjust nor was it
unreasonable. Mr Hyde was not unfairly dismissed.
[185] Consequently I will dismiss this application and an order [PR606765] to that effect
will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
R. Cosentino of Slater &Gordon Lawyers for the Applicant.
P. Brown of Baker & McKenzie for the Respondent.
Hearing details:
2018.
Perth:
January 30.
Final written submissions:
Applicant, 20 February 2018.
Respondent, 13 and 21 February 2018.
Printed by authority of the Commonwealth Government Printer
PR606764
[2018] FWC 2465
27
1 Exhibit R3, Attachment IS4.
2 Transcript at PN188.
3 Exhibit A3, Attachment F, p. 35.
4 Ibid., Attachment G, p. 36.
5 Ibid., Attachment E and Applicant’s closing submissions dated 20 February 2018 at paragraph 30.
6 Transcript at PN296 to PN315.
7 Ibid., at PN550 to PN553.
8 Exhibit A3, Attachment E, pp. 17 and 23.
9 Ibid., Attachment B, p. 8.
10 Exhibit R2 at paragraph 29.
11 Exhibit A3, Mr Hyde’s statement at paragraphs 81 to 83.
12 Transcript at PN275.
13 Ibid., at PN276 to PN287 and PN338.
14 Ibid., at PN333 to PN338.
15 Exhibit A3, Attachment J.
16 Transcript at PN341 to PN343.
17 Ibid., at PN288 to PN290.
18 Exhibit A5.
19 Exhibit A6.
20 [2016] FWCFB 4218.
21 [2018] FWCFB 1005.
22 Exhibit A3, Attachment G, p.36.
23 Ibid., Mr Hyde’s statement at paragraph 73.
24 Ibid., at paragraph 82.
25 Exhibit R2, Attachment WN1.
26 [2014] FWCFB 8683.
27 [2018] FWCFB 1005.
28 Applicant’s closing submissions dated 20 February 2018 at paragraphs 1 to 7.
29 [2016] FWCFB 4218 at [25].
30 [2018] FWCFB 1005 at [19].
31 Exhibit R1.
32 Transcript at PN214 to PN215.
33 Ibid., at PN218 to PN219.
34 Exhibit A3, Attachment G, p. 36 at paragraph 2.
35 Ibid., Mr Hyde’s statement at paragraphs 75 to 76.
36 Ibid., at paragraphs 81 to 82.
37 Ibid., Attachment E, p.17
38 Transcript at PN113 to PN121.
39 Exhibit A3, Mr Hyde’s statement at paragraphs 68 to 72.
