Fair Work Act 2009
s.394—Unfair dismissal

Reynato Reodica
v
Bunnings Group Limited
(U2014/324)

Application for unfair dismissal remedy - ability to perform the inherent requirements of a job(s).

[1] This decision concerns an application lodged on 6 February 2014 by Mr Reodica pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Bunnings Group Limited (Bunnings or the Company). The matter was set down for arbitration hearing in Sydney on 25 August 2014. Directions were issued for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 5 May 2014.

[2] At the hearing on 25 August 2014, Mr Reodica represented himself and Bunnings was represented by Ms N Howells-Schramm of the Victorian Chamber of Commerce and Industry. Mr Reodica gave sworn evidence on his own behalf. Mr D Hannaford gave sworn evidence for Bunnings.

Background

[3] The Applicant was first employed by Bunnnings at its Auburn New South Wales warehouse on 27 November 2010. That employment continued until it was terminated by Bunnings on 16 January 2014 on the ground that Mr Reodica was unable to perform the inherent requirements of any available positions within the Castle Hill warehouse, to which he had been transferred following the closure of the Auburn warehouse.

[4] Mr Reodica maintained that, at the date Bunnings terminated his employment, he was available to return to work on restricted/light duties and Bunnings did not make reasonable efforts to find a suitable job for him.

[5] Mr Reodica claims that the termination of his employment was without a valid reason and was harsh, unjust and unreasonable. He seeks an order for reinstatement and compensation.

Evidence

Mr Reodica

[6] Mr Reodica gave sworn evidence and submitted a witness statement 1. In summary, Mr Reodica’s witness statement was that:

● “During my employment with the respondent, I performed the role and full duties of operating the forklift, cutting boards and timbers, lifting bags of sand and cement, replenishing and recovering stocks, customer service, relief gatekeeper and eventually operating the cash register.”
● In October 2011 he suffered an umbilical hernia whilst helping a customer lift items.
● He underwent surgery for the hernia in March 2012 and “was given a specific warning that all my future operation needs to be intubated first and specific lifting restrictions 10 Kilos limit and need to be strictly observed to prevent recurrence.”
● He returned to work on ‘suitable duties’ in July 2012 as a full time gatekeeper “in a new relocated area that was over exposed to the cold temperature, wind gust and rain gust. As a result, I developed all body pains and mouth with sore gums and teeth problems.” He subsequently made a workers compensation claim in August 2012.
● From August 2012 until October 2012 he performed suitable duties operating the cash register at various locations within the store. That ceased in mid October 2012 when the Respondent refused to continue to offer suitable duties.
● After intervention by the Shop, Distributive & Allied Employees’ Association, Bunnings agreed to provide a gatehouse with power, heating and cooling but this did not occur.
● In January 2013 the Workers Compensation Commission instructed Bunnings to offer him suitable duties.
● In January 2013 his treating doctor issued a medical certificate stating that he was fit for pre-injury duties. “I did not agree with this so I did not sign the medical certificate.”
● He subsequently returned to work on suitable duties in February 2013 working as a cashier at the Service Desk. That area “is cold, windy and draughty” and on 4 February 2013 he cracked a tooth and informed Bunnings that he would not be able to work until he had undergone specialist dental treatment. 4 February 2013 was the last time he performed duty at Bunnings.
● In June 2013 he told the Store Manager of the Castle Hill store that he was ready to work and he was told that he would be transferred from the Auburn store, which was closing, to the Castle Hill store. He was not contacted further in that regard.
● “I attended a meeting at the Castle Hill store on 13 January 2014 to discuss my return to work. I offered to work anywhere in the store. I got the impression that I would be offered work in the building section.”
● “I attended another meeting at the Castle Hill store on 16 January 2014. Again, I offered to work anywhere in the store. I was dismissed on the basis the respondent could not guarantee that it would not be windy inside the store. I was not even given the opportunity to get a medical certificate.”
● “I was badly treated in that I was not offered a suitable position in the store when I was prepared to work anywhere inside the store. My termination was harsh, unjust and unreasonable because I was offered no work, but I was willing, able and ready to work.”
● “I am seeking reinstatement to my suitable position with Bunnings Group Ltd and to be compensated for lost wages and expenses.”

[7] In cross-examination, Mr Reodica agreed that during the total period he was employed by Bunnings, he only worked for some nine months due to injuries. 2 He went on to agree that prior to developing a hernia, his duties required him to lift more than 10 kilograms.3

[8] In further cross-examination, Mr Reodica:

● Agreed that he was on light duties between July and October 2012 due to body pains and problems with his teeth and gums. 4

Said that he did not work from October 2012 to February 2013 because he was not offered light duties. 5

Said that his manager put pressure on his family doctor to issue him with a full medical clearance in February 2013. 6

Agreed that when he resumed work on 4 February 2013, he still had a restriction of not lifting more than 10 kilograms and cracked a tooth on the same day. 7

● Agreed that when he met with Mr Hannaford in June 2013, he said that he was ready to work but that would have included the 10 kilogram limitation and a requirement that he stay out of the cold and wind. 8

Said that between June 2013 and January 2014, he did not provide a medical clearance to Bunnings because he had not yet resolved his dental problems. 9

Maintained that he made numerous attempts to contact Bunnings about his return to work. 10

Agreed that he did not have a medical clearance when he met with Mr Hannaford in June 2013. 11

Said that he was aware of the evidence of Mr Hannaford that it was not possible to provide a job within the Bunnings warehouse where the temperature would not fall below 22 degrees. 12

Agreed that he met with Mr Hannaford in January 2014 but did not provide any further medical evidence as to his fitness and was not asked for any. 13

Agreed that his medical condition had not changed but maintained that he could perform a different job role with restricted duties. 14

Mr Hannaford

[9] Mr Hannaford gave sworn evidence and submitted a witness statement 15.

[10] Mr Hannaford has been the Complex Manager for Bunnings Castle Hill warehouse for approximately two and a half years and has worked for Bunnings for a total of some six years.

[11] Mr Hannaford’s witness statement, went on to say, in summary that:

● In mid-June 2013 Bunnings Auburn warehouse closed. Employees at Auburn were asked to provide their preferred store for redeployment purposes. Mr Reodica nominated Castle Hill.
● He attended a meeting with Mr Reodica and the Acting Complex Manager for the Auburn warehouse, Mr Hawkins, on 14 June 2013. At that meeting he was made aware that the Applicant “was unable to work in cold and windy areas of the store and that previous medical advice stipulated he was unable to work in areas that were less than 22 degrees.”
● The above meeting discussed the Applicant’s capacity to return to work and Mr Reodica stated that he could not commit to any return date until his treating doctor returned from leave on 24 June 2013.
● Around late July 2013, he telephoned Mr Reodica who told him that he was short of funds and asked for a pay advance. Mr Hannaford informed the Applicant that this was not possible and Mr Reodica then informed him that he would advise Mr Hannaford when he was able to return to work.
● “I did not hear back from Mr Reodica until on or about 22 December 2013. I facilitated a meeting with Mr Reodica on 13 January 2014.”
● “During the meeting I asked ‘If you come back to work, how will it affect your teeth?’ He responded words to the effect that ‘[he] needs to work inside, out of the cold and wind and it would need to be 22 degrees.’ I responded ‘It it is windy, how would you serve our customers?’ He responded to the effect that ‘[he] would put on a face mask to keep the wind away from [his] face and teeth.”
● “I consulted with the State Human Resources Coordinator and determined that Mr Reodica was unable to perform the inherent requirements of his role. I also determined that there were no changes that could be made to his role that would accommodate his medical restrictions.”
● “The meeting with Mr Reodica resumed on16 January 2014. I communicated that Bunnings is unable to provide the working conditions he requires and that his employment would need to be terminated.”

[12] Attached to the witness statement of Mr Hannaford was a copy of his diary entry concerning the meeting with Mr Reodica on 13 January 2014.

[13] In cross-examination, Mr Hannaford was questioned by Mr Reodica concerning the availability of suitable duties which would have enabled Mr Reodica to return to work. Mr Reodica specifically drew attention to the building section of the warehouse. 16

[14] In further cross-examination, Mr Hannaford agreed that he did not ask Mr Reodica for a medical certificate when he met with him in January 2014. 17 In response to a question from me as to whether he considered Mr Reodica had been treated unjustly or unfairly by way of the termination of his employment, Mr Hannaford replied: “No, I don't. We obviously have Rey's health and wellbeing first at heart, and without having a suitable environment with Rey's condition, we were not able to provide a suitable working environment for Rey to work in, and we couldn't provide a safe place for Rey.”18 Mr Hannaford was then asked about the availability of office jobs at the warehouse and replied that there were no vacancies in that area.19

[15] In re-examination, Mr Hannaford was asked: “[C]an you please explain to the commission what alternative positions you had available for the applicant at the time of his termination?” and replied: “I only had positions available on the floor, which was builders area, which obviously was close to the elements.” 20 He was then asked: “In your opinion, were any of those roles suitable for the applicant?” and replied: “No, they weren't.”21

Written Submissions

Mr Reodica

[16] Mr Reodica filed a written outline of submissions 22. Much of the material in the submissions repeats that contained in Mr Reodica’s evidence and I will not deal with those matters again here.

[17] Mr Reodica went on to say that since July 2012 he has been “suffering and battling all body deep tissue muscular, deep to the root of the teeth and deep to the gums nagging aches, pains, sensitivity and numbness from cold weather, wine and rain.” His claim for workers compensation was declined in September 2012 and this led to Bunnings withdrawing suitable duties. Mr Reodica last worked for Bunnings on 4 February 2013 “as a cashier at the Service Desk near the cold and windy Main Entrance Door, but experienced pain in his mouth and cracked his tooth. The applicant regularly informed the respondent that he would not be able to work and that he needed more Specialist treatments for his medical, physio and dental condition.”

[18] “On 3 January 2014 the applicant attended a meeting to discuss his return to work. The applicant mentioned that he didn’t want to work in the wind and that he was prepared to work anywhere in the store. The applicant attended another meeting on the 16 January 2014 to discuss his return to work. The respondent terminated the applicant’s employment verbally on the basis that they couldn’t guarantee that there would be no wind or that the temperature within the store would always be at 22 degrees Celsius or above.”

[19] Mr Reodica went on to deal with the criteria prescribed by s.387 of the Act. In particular, he says that he was not given an opportunity to respond to the reason given for his termination. “The applicant went to the meeting [16 January 2014] believing he would be offered work in the building section of the store. The respondent should have given the applicant the opportunity to get a medical certificate to clarify the situation regarding his medical condition. The applicant was denied procedural fairness in relation to his termination.”

[20] “The respondent made no token effort to provide work for the applicant. Had the respondent made a genuine attempt in providing suitable work for applicant, then work would have been offered for the applicant within the store.”

Bunnings

[21] Bunnings filed a written outline of submissions 23. The submissions set out the factual background of Mr Reodica’s employment and I will not repeat those elements which are set out elsewhere in this decision, including in the evidence of Mr Reodica and Mr Hannaford.

[22] “The Applicant worked only one day between mid-October 2012 and 16 January 2014. On the day that the Applicant worked (4 February 2013), Sydney had an average maximum temperature of approximately 26 degrees [reference omitted]. Notwithstanding, the Applicant was unable to return to work the following week due to ‘aches and pains’ from exposure to the ‘cold and windy main entrance door’. The Applicant’s medical condition did not improve during his 14 months away from the workplace and he did not make an effort to stay in touch with the store or provide updated medical certificates. In all the circumstances the Respondent determined that the Applicant was unable to perform the inherent requirements of his role and that it could not reasonably accommodate the requirement that he avoid cold exposure, working near doorways or temperatures below 22 degrees.”

[23] The submissions go on to deal with the criteria prescribed by s.387 of the Act and make reference to case law to which I have paid regard. Broadly, Bunnings argues that:

“The Respondent’s stores are a large warehouse format with multiple entry/exit points. The Respondent mitigates the effect of extreme weather conditions by providing team members with polo shirts, polar-fleece vests, long-sleeved windcheaters, gloves, an apron, beanie and scarf. Team members in specific roles are provided with ‘japara’ raincoats and the Respondent rejects any assertion that it does not provide team members with appropriate clothing for cold conditions. The Respondent determined that it would not be viable to restrict the Applicant’s movements to areas of the store that would not be exposed to cold temperatures or wind.’ It is submitted that several months after the date of dismissal, and 14 months after his last shift, the Applicant is still unable to perform the inherent requirements of his former role. The Applicant’s role requires him to work in a warehouse environment where the temperature cannot be regulated to ensure the Applicant is not exposed to ‘cold weather’. Additionally, in order for the Applicant to perform the inherent requirements of his role he is required to move around the store and may be exposed to cold winds. Whilst the Respondent can and does offer warm, protective clothing to employees, the evidence provided by the Applicant was that this was not sufficient.”

[24] The submissions go on to say:

“The Applicant provided an updated medical certificate after the date of his dismissal. The certificate, dated 3 April 2014, stated: ‘Mr Reynato Reodica is able to return to his usual duties from today 03/04/2014. Please avoid exposure to cold weather and cold winds.’”

[25] Bunnings opposes reinstatement as a remedy and refers to relevant case law to which I have paid regard. In relation to possible compensation, Bunnings submits that Mr Reodica has not suffered any economic loss due to the termination of his employment as he has remained unfit to perform the inherent requirements of his role at Bunnings.

[26] Attached to the written submissions were a number of documents including Workcover NSW medical certificates, a Workcover NSW certificate of capacity and an internal record of the discussions with Mr Reodica held on 16 January 2014. I have paid regard to that material.

Oral submissions

Mr Reodica

[27] Mr Reodica made brief oral submissions. Mr Reodica said: “It's true that I have some restrictions on lifting and with my body aches and pains and my dental condition, but I am still willing and able to work because I am, you know, with such an injury I am also a functioning individual. And I have reason to believe that I should be given a suitable employment. Because the injury happens at Bunnings, I believe they have a duty to give me suitable jobs.” 24

[28] In response to oral submissions from Bunnings, Mr Reodica said that he still believed reinstatement to be a viable option because he was committed to hard work provided it can be done “safely and productively”. 25

Bunnings

[29] Bunnings submits that the evidence before me shows clearly that the Applicant is unable to perform the inherent requirements of his role. In relation to possible redeployment, Bunnings submits that no alternative work within Mr Reodica’s restrictions exist. “All of those conditions meant that the work that he was performing, or the work that he was capable of performing could not be provided, could not fit into those very restrictive conditions which the applicant required to be able to do his job safely. So we submit allowing the applicant to return to work would have put Bunnings in a position where they breached their occupational health and safety obligations. We don't deny that the applicant wanted to return to work, he was very keen to return to work, but could not. He was not fit and able to return to performing the role that he does in the area that he does that role.” 26 Bunnings further submits that it did not rush through the process which led to the termination of Mr Reodica’s employment but took some two years to see if his medical condition(s) would improve. That did not occur.

[30] In answering a question from me, Ms Howells-Schramm said that Mr Reodica was on leave without pay for some 18 months prior to the termination of his employment.

Conclusions and Findings

[31] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[32] In Container Terminals Australia Limited v Toby 27, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”28

[33] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 29 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[34] In J Boag and Son Brewing Pty Ltd v Allan John Button 30 (Boag), the Full Bench said:

“When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.” 31

[35] In X v Commonwealth 32, the High Court considered the question of inherent requirements in employment:

“The reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral [reference omitted]. Further, the reference to ‘inherent’ requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.” 33

[36] I respectfully agree with the observations of the High Court in X v Commonwealth and of the Full Bench in Boag and those decisions have significantly guided my consideration in this matter.

[37] In my view, based on the totality of the evidence and materials before me, Bunnings did everything it reasonably could have done to give Mr Reodica an extended period of time to see if his medical condition(s) would improve. On Mr Reodica’s evidence alone, if he were to return to work in Bunnings it would be with very significant restrictions. I accept the evidence from Bunnings that no position exists at its Castle Hill warehouse which could accommodate Mr Reodica’s restrictions. The Applicant’s self-stated physical condition precludes him from returning to work at Bunnings and Bunnings was entitled to form the opinion in April 2014 that the time had come to end the employment relationship. It is to Bunnings’ credit that it waited so long to do so when it could have acted earlier.

[38] Wherever the evidence of Mr Reodica conflicts with that of Mr Hannaford, I am satisfied that the evidence of Mr Hannaford is to be preferred. I do not consider that Mr Reodica was untruthful during proceedings but I believe that his evidence was coloured by a belief that he was treated badly by Bunnings.

[39] All in all, I therefore find that there was a valid reason for Bunnings to terminate Mr Reodica’s employment on the basis that he was no longer able to perform the inherent requirements of his job.

[40] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(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 FWA considers relevant.”

[41] In Byrne v Australian Airlines 34, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[42] In Parmalat Food Products Pty Ltd v Wililo 35, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. ...” 36

[43] The question of valid reason is dealt with above.

[44] It is clear that Mr Reodica was notified of the reason for the termination of his employment during the Company’s meetings with him on 13 and 16 January 2014 and I so find. It does not appear that Mr Reodica was denied an opportunity to respond to the Company’s conclusion that he was unable to perform the inherent requirements of his job. He knew that the Company was reviewing his position and did not provide it with any medical evidence which could have led it to form any other conclusion than the one it did. Given the evidence of Mr Reodica, it is difficult to see any likelihood that any argument he would put to the Company would have had any prospect of changing the Company’s mind as to the termination of his employment.

[45] The Applicant had a support person during the meeting on16 January 2014.

[46] The question of unsatisfactory performance (or misconduct) does not arise as nothing of the sort was alleged by Bunnings.

[47] The size of Bunnings’ enterprise and human resources expertise is relevant to the extent that Bunnings is a large organisation with dedicated human resource specialists. In effecting the termination of employment, Bunnings utilised such resources to effect the termination in a procedurally fair manner.

[48] I have also taken into account a number of other factors. These include Mr Reodica’s age, the length of his employment at Bunnings, his genuine attempts to medically rehabilitate himself, his genuine desire to return to work, his future employment prospects and the economic and personal effects of the termination of employment on him.

[49] All in all, I am unable to find that the Respondent’s treatment of Mr Reodica was harsh or unjust or unreasonable in all the circumstances of his dismissal. His medical condition has had a markedly adverse effect on his life but his inability to perform work at Bunnings without restrictions is not his fault or that of Bunnings. There is no inference that Mr Reodica was other than a competent employee. His dismissal was an inevitable result of his medical condition(s).

[50] In reaching my decision I have paid regard to all oral and written evidence, submissions and materials put to me.

[51] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a fair go all round in these proceedings.

[52] The application is dismissed. An order reflecting this decision is in PR555150.

COMMISSIONER

Appearances:

R Reodica, the Applicant.

N Howells-Schramm, for Bunnings Group Pty Ltd.

Hearing details:

2014.

Sydney:

August 25.

 1   Exhibit Reodica 2

 2   Transcript PN98.

 3   Transcript PN105.

 4   Transcript PNs107-108.

 5   Transcript PNs109-110.

 6   Transcript PNs112-115.

 7   Transcript PNs119-120.

 8   Transcript PNs123-125.

 9   Transcript PNs130-131.

 10   Transcript PNs133-135.

 11   Transcript PN138.

 12   Transcript PN149.

 13   Transcript PN170.

 14   Transcript PNs172-174.

 15   Exhibit Bunnings 2.

 16   Transcript PN236 and following.

 17   Transcript PNs260-263.

 18   Transcript PN283.

 19   Transcript PN288.

 20   Transcript PN301.

 21   Transcript PN302.

 22   Exhibit Reodica 1.

 23   Exhibit Bunnings 1.

 24   Transcript PN351.

 25   Transcript PN378.

 26   Transcript PN362.

 27   Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.

 28   Ibid at para 15.

 29   (1995) 62 IR 371 at 373.

 30   [2010] FWAFB 4022.

 31   Ibid at [22].

 32   167 ALR 529.

 33   Ibid at 102.

 34   (1995) 185 CLR 410.

 35   [2011] FWAFB 1166

 36   Ibid at para 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555149>