| [2019] FWC 4512 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Brett Geary
v
KONE Elevators Pty Ltd
(C2018/6315)
COMMISSIONER HUNT |
BRISBANE, 28 JUNE 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Applicant’s position of employment and inherent requirements of employed position – work tasks applicant can be directed to perform with regard to long-term medical condition – whether notification of transfer within respondent’s enterprise was a ‘major change’.
[1] Mr Brett Geary has made an application to the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. The application concerns a dispute about directions for Mr Geary to perform certain work in his employment with KONE Elevators Pty Ltd (KONE).
[2] Mr Geary’s employment is covered by the KONE Service Employees Northern Region & Gold Coast Region Enterprise Agreement 2014 (the Agreement).
[3] A conference between the parties was conducted before me at the Commission’s offices in Brisbane on 26 November 2018. The matter could not be resolved at the conference and directions were issued for the filing of material.
[4] Mr Geary filed written submissions in support of his application and several signed statements from co-workers, although those co-workers did not give evidence at the hearing of this matter. The signed statements from his co-workers are to the effect that they have observed Mr Geary in the workplace and he is unable to travel in elevators.
[5] KONE filed written submissions and a witness statement given by Mr Anthony Dowdle, Service Operations Manager. Mr Geary filed submissions in reply to KONE’s submissions.
[6] This matter was heard before me on 11 & 12 March 2019. Mr Geary appeared and gave evidence on his own behalf. Mr Roger Law, a co-worker of Mr Geary’s and an elected delegate for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), appeared as Mr Geary’s support person during the hearing. During the hearing Mr Law was sworn as a witness and gave evidence on Mr Geary’s behalf. Mr David Miller, National Manager, Workplace Legal Services, AI Group appeared for KONE, instructed by Ms Christine Martin, Legal Counsel of KONE.
[7] Prior to the hearing, Mr Geary sought orders for the appearance of Mr Sean Ellwood, Field Service Manager, and Mr Murray Wilson, Supervisor at the hearing. I ordered Mr Ellwood and Mr Wilson to appear at the hearing of this matter. Both Mr Ellwood and Mr Wilson appeared and gave evidence as witnesses of the Commission.
[8] KONE manufactures and installs elevators, escalators, automatic doors and other automatic machinery typically used in buildings. KONE installs its products in new buildings and also provides maintenance service for its installed products. Mr Geary was first employed by KONE as a Trades Assistant in 1996. Mr Geary’s employment was covered by his original letter of appointment from 1996 and by subsequent enterprise agreements.
[9] Mr Geary worked in KONE’s ‘elevator repair team’ from the commencement of his employment until in or about 2006. After 2006 Mr Geary transitioned to work in KONE’s ‘escalator repair team’. The predominant difference between Mr Geary’s duties in each of those teams was that he was not required to perform work on elevators while he was part of the escalator team.
[10] Mr Geary’s case is that during 2002 an incident occurred during the course of his work where he was trapped in a suspended elevator that had lost power, after which and over several years he developed severe claustrophobia specifically related to elevators. Mr Geary states that his medical condition was well-known to KONE and that KONE transferred him to the escalator team because of his condition.
[11] During July 2018 KONE decided that it would re-allocate Mr Geary to the elevator team due to operational requirements of the business, which Mr Geary opposed on the basis of his severe claustrophobia. Mr Geary referred to a medical assessment undertaken on him in May 2015 by Dr Ron Edmonds, on account of Mr Geary’s return to work after he had been treated for multiple skin lesions. Dr Edmonds noted in his report:
“Brett is physically capable of carrying out lift servicing if required. He says he has not done this for some years and does not feel comfortable in lifts. Any psychological concerns re working in lifts are outside the scope of this assessment and if deemed necessary should be further assessed with a formal independent clinical assessment.”
[12] KONE’s case is that no further inquiries were undertaken at that time. In 2018 KONE informed Mr Geary that the statement did not amount to a suggestion that Mr Geary suffered from severe claustrophobia or acrophobia, and maintained its direction that Mr Geary return to the elevator repair team.
[13] On 31 July 2018 Mr Geary attended a meeting with KONE regarding his employment. Mr Geary produced a medical certificate with additional information about his condition. On the basis of that certificate KONE stood him down from his employment alleging that he could not carry out his pre-injury duties. KONE requested that Mr Geary provide further information about his medical condition. Mr Geary was required to utilise paid leave entitlements, and when the leave entitlements were exhausted, he was on unpaid leave.
[14] During July and August 2018 Mr Geary obtained further medical evidence regarding his condition from his treating medical practitioner, Dr Allan Miles. On 2 August 2018, Dr Miles wrote to Mr David Hodge, Regional Service Manager, regarding Mr Geary’s medical condition and stated in part:
“…Brett is completely able to perform standard critical functional job demands such as:-
…
Frequent work in confined spaces ---- as long as those confined spaces relate to escalators and travelators
It is my belief that Brett can perform all work and duties associated with escalators and travelators and this includes working in confined spaces that relate to escalators and travelators only.
It is my belief that Brett can perform all work and duties associated with lifts, except any work that involves being in confined and enclosed lift environments, that could be detrimental to his health and any of his co-workers who happened to be with him at the time.”
[15] On 30 August 2018 Dr Miles wrote to Mr Dowdle regarding Mr Geary’s medical condition and stated in part:
“Mr Geary has told me that a number of years ago while working on a lift, he was trapped for 1 to 2 minutes in a darkened lift car when the power suddenly ceased. There was no possible emergency exit, and this had a significant effect on him at the time. Quite reasonably he continued at work hoping to get rid of this phobia that he now felt was starting to develop. However this in fact has not got better, if anything slightly worse…
Brett says to be exposed to such environments without proper free space to escape has been a major contributing factor to his phobia deteriorating to the condition as it is today which is in fact, severe claustrophobia. I am attempting to explore an avenue of desensitising him, if possible, and if this cant [sic] be done then I believe he is unlikely to ever be able to resume all his preinjury duties…”
[16] On 20 September 2018, KONE presented Mr Geary with a return to work (RTW) plan to facilitate his return to work while accommodating his medical condition. Mr Geary rejected the RTW plan as it described his medical condition as “non-work related”, and it stated that his return to work was on “restricted duties”. Mr Geary alleged that was an inappropriate description of his duties given he had been performing escalator work, and not elevator work for approximately 13 years.
[17] The parties continued to discuss Mr Geary’s return to work. On 9 November 2018 and in the course of those discussions Mr Geary filed the present application. The parties continued to discuss Mr Geary’s RTW plan. Mr Geary returned a signed copy of the RTW plan to KONE on 4 December 2018, expecting to promptly return to work. I understand that Mr Geary returned to work on 10 December 2018. Mr Geary’s duties in his employment are those of a Trades Assistant except subject to the following restrictions:
“Working in enclosed spaces associated with lift equipment
• E.g. lift pit, inside a lift car or on a lift top which does not have a clear exit
• Or any other associated environment as per your medical condition and highlighted in your Risk Assessment”
[18] In an email from Ms Christine Martin, Legal Counsel KONE to my chambers on 7 December 2018, Ms Martin stated:
“…
In KONE’s view, it is reasonable for KONE to be provided with a small number of days to make the accommodation internally by assessing its current workload, and identifying what customer portfolios are suitable for Mr Geary’s restricted duties (noting that Mr Geary’s restrictions are relatively substantial and he is unable to work alone, or in basements or shopping centers where a sizable portion of KONE’s escalator work is carried out).”
[19] Mr Geary submitted that several clauses of the Agreement are relevant to the dispute in this matter. Regrettably, the clauses are not numbered. They are extracted as follows, identified (a) to (d):
(a) “EMPLOYEE DUTIES
An employee shall perform such work as may be reasonably required by the employer from time to time during both ordinary hours and overtime, provided that such work is consistent with the classification in which he/she is usually employed.
KONE may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training provided that such duties are not designed to promote deskilling.
Any direction issued by KONE shall be consistent with KONE’s responsibilities to provide a safe and healthy working environment.
The objectives of the parties to this Agreement are focused on ensuring our Company’s success through the application of the KONE values:
• First in Customer Loyalty
• A Winning Team of True Professionals
• The Most Competitive People Flow Solutions
• Preferred Maintenance Partner
• Top Modernisation Provider” (emphasis retained)
(b) “CONSULTATION TERM
(1) This term applies if KONE:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on the Employees;
(2) KONE must notify the relevant Employees of the decision to introduce the major change
(3) The relevant Employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and
(b) the Employee or Employees advise KONE of the identity of the representative; KONE must recognises the representative.
(5) As soon as practicable after making its decision, KONE must:
(a) discuss with the relevant Employees and their representative (if appointed):
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the Employees; and
(iii) measures KONE is taking to avert or mitigate the adverse effect of the change on the Employees; and
(b) for the purposes of the consultation – provide, in writing, to the relevant Employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the Employees; and
(iii) an other matters likely to affect the Employees.
(6) However, KONE is not required to disclose confidential or commercially sensitive information to the relevant Employees.
(7) KONE must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.
(8) If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of KONE, the requirements set out in paragraph (2) and subclauses (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on Employees if it results in:
(a) the termination of the employment of Employees; or
(b) a major change to the composition, operation or size of KONE’s workforce or to the skills required of Employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain Employees; or
(f) the need to relocate Employees to another workplace; or
(g) the restructuring of jobs.”
(c) “JOB SECURITY
KONE must ensure the wages and conditions of employees of contractors, labour hire companies and Group Trading Schemes engaged to do work covered by this Agreement are no less favourable than the wages and conditions provided for in this Agreement for equivalent or similar work.”
(d) “BOUNDARY/LIMITS TO WORK TASKS
It is agreed that the Employee shall perform the duties required of them provided they are within their skill, experience and training and that they are given adequate supervision and a safe working environment. KONE supports a multi-skilled operation and any boundary/limits to work tasks based upon classification or union membership is prohibited.”
[20] In summary, Mr Geary’s original application sought a declaration that:
• KONE had knowledge of his medical condition and issues regarding elevator work and should not have required him to perform elevator work;
• His full-time employment on escalators and travellators since 2006 should not be regarded as restricted duties;
• He should be reimbursed for all paid and unpaid sick leave and medical expenses associated with the matter.
[21] In its original response to Mr Geary’s application KONE maintained that it had not had knowledge of Mr Geary’s medical condition when it directed Mr Geary to return to elevator work. KONE maintained that it was critical for Trades Assistant employees to ‘move freely across KONE’s different product lines’. KONE maintained that it had been entitled to direct Mr Geary to perform elevator work. KONE submitted that after learning more about Mr Geary’s condition, it had attempted to arrange a return to work plan for Mr Geary to return to escalator work only, but considered that Mr Geary had been unwilling to co-operate. KONE denied that Mr Geary was entitled to any relief.
[22] I directed the parties to provide their views on what questions were to be answered through the arbitration of this matter, which both parties initially failed to do. I suggested to the parties the following five questions to be answered by arbitration in this matter:
1. Can KONE require Mr Geary to perform elevator work having regard to his long-term medical condition?
2. What is the classification in which Mr Geary is usually employed under the Agreement?
3. Is the performance of elevator work an inherent requirement of Mr Geary’s employment?
4. Does the clause titled ‘Boundary/Limits to Work Tasks’ on page 14 of the Agreement act to allow Mr Geary’s work tasks to be limited in the sense that they do not include elevator work?
5. Was the notification by KONE to Mr Geary to perform elevator work a ‘major change’ pursuant to the clause entitled ‘Consultation Term’ on page 13 of the Agreement?
[23] Although the parties initially expressed some further views on the questions proposed by me, both parties eventually accepted that the above five questions were to be the questions for arbitration in this matter.
[24] I note that the evidence and submissions of the parties in this matter have been produced to the Commission in a somewhat piecemeal manner, possibly due to the continued discussion between the parties regarding the dispute prior to the hearing of this matter and due to Mr Geary’s appearance as a self-represented litigant in this matter. New material was produced by both parties during the course of the hearing. I do not say this as a criticism of either party. Whilst not all of the submissions and evidence before me may be referred to in this decision, all of such have been considered.
[25] KONE raised jurisdictional objections to the Commission determining the dispute in accordance with the Agreement. The ‘Dispute Settling Procedures’ clause within the Agreement is produced below:
“DISPUTE SETTLING PROCEDURES
(1) If a dispute relates to:
(a) a matter arising under the Agreement; or
(b) the National Employment Standards;
this term sets out procedures to settle the dispute.
(2) An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.
(3) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.
(4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
(5) The Fair Work Commission may deal with the dispute in 2 stages:
(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
(6) While the parties are trying to resolve the dispute using the procedures in this term:
(a) During the Dispute Settling Process work will continue as directed by the company as they would have normally prior to the matter giving rise to the dispute, providing that those directions are safe and legal. An Employee must comply with a direction given by KONE to perform other available work at the same workplace, or at another workplace, unless:
(i) the work is not safe; or
(ii) applicable Occupational Health And Safety Legislation would not permit the work to be performed; or
(iii) the work is not appropriate for the Employee to perform; or
(iv) there are other reasonable grounds for the Employee to refuse to comply with the direction.
(7) The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.”
[26] KONE objected to the dispute being within the Commission’s jurisdiction as it submitted that the dispute was not a matter related to a matter arising under the Agreement, nor did it relate to the National Employment Standards (NES) within the Act.
[27] KONE submitted that the extent of the Commission’s jurisdiction in this matter is confined to the scope of ss.738, 739 of the Act, which provide for the Commission to deal with a dispute which arises under an enterprise agreement where that agreement includes a procedure for dealing with disputes and which provides the Commission may deal with the dispute. KONE acknowledged that the Agreement contains such a term.
[28] However, KONE submitted that the Commission’s jurisdiction to deal with Mr Geary’s application is limited to the clauses of the Agreement for which Mr Geary alleges there is a dispute. KONE submitted that those clauses are:
• The ‘Employee Duties’ clause;
• The ‘Consultation Term’ clause; and
• The ‘Job Security’ clause.
[29] KONE submitted that Mr Geary’s dispute is “…an objection…to work in an Elevator Crew”. KONE submitted that the dispute does not touch upon or require the interpretation of any of the above clauses, and that there is nothing within those clauses or within the Agreement as a whole which might be the subject of Mr Geary’s dispute or require interpretation to determine whether KONE has a right to require Mr Geary’s transfer to the elevator repair crew. KONE submitted that it has the right to require that Mr Geary is transferred to the elevator repair crew and that process is not a matter for resolution by reference to any clause within the Agreement.
[30] Mr Geary maintained that his dispute relates to the effect of the clauses set out above at [19], and the Commission has jurisdiction to consider this matter pursuant to s.739 of the Act. Mr Geary submitted that KONE’s direction transferring Mr Geary to the elevator repair crew infringed upon KONE’s obligations to:
• Provide him with a safe and healthy working environment under the ‘Employee Duties’ clause;
• Consult with him regarding a major change to his employment, as required by the ‘Consultation Term’ clause;
• Ensure that Mr Geary’s wages and conditions are no less favourable than the wages and conditions set out in the Agreement for the same or similar work; and
• Provide a safe working environment pursuant to the Boundary/Limits to Work Tasks clause.
[31] Relevant to whether the dispute is related to the NES, neither party’s submissions prior to or during the hearing addressed the Commission’s jurisdiction to consider this matter relevant to the NES set out in the Act. Following the hearing, I communicated to the parties through my chambers that it had not been canvassed during the hearing whether the Commission had jurisdiction to consider this matter relevant to the NES set out in the Act; consideration had only been given to the clauses of the Agreement.
[32] I indicated to the parties my preliminary view that there may be two relevant periods regarding the jurisdictional issue:
• From 31 July 2018 to 4 December 2018, during which period Mr Geary was required to access personal leave; and
• From 4 December 2018, after which Mr Geary signed and returned to KONE a return to work plan.
[33] I directed the parties to provide further submissions regarding the Commission’s jurisdiction to consider this matter relevant to the NES under the Act, and both parties filed further written submissions, as directed.
[34] KONE submitted that while there may have been matters in dispute between the parties, those matters did not arise from any dispute arising from any particular clause in the Agreement or regarding the NES, and as such do not fall to be determined by the Commission.
[35] KONE did, however, communicate to Mr Geary on 15 March 2019 that as a goodwill gesture, and in view of his long tenure and value to the business, that it would, without admission or prejudice, credit Mr Geary the pay that he would have received had he not been placed on unpaid sick leave or part time hours during the period 20 July 2018 to 4 January 2019.
[36] Mr Geary submitted that the Commission does have jurisdiction to consider this matter under the NES. Mr Geary asserted that KONE had taken adverse action against him for a discriminatory reason and that KONE had unduly pressured him to accept a return to work plan before he could return to work, which Mr Geary submitted infringed upon his rights to request a change to his working arrangements pursuant to s.65 of the Act.
Can KONE require Mr Geary to perform elevator work having regard to his long-term medical condition?
[37] Mr Geary stated that this dispute arose because KONE transferred him to the elevator repair team in the circumstances that KONE knew he would have significant difficulty completing the duties of his employment within that team due to his claustrophobia, which was described in medical records possessed by KONE and was common knowledge within his workplace. 1
[38] Mr Geary stated that the first indication that KONE would have had about his issues working with lifts was during an incident in or about 2013. Mr Geary had attended with 8 – 10 other KONE employees to a lift that had become stuck near the top floor of a building. The circumstances of the malfunction required a number of KONE employees to enter the lift to act as additional weight while one employee used the lift’s manual brakes to control the descent of the lift. I understand that this procedure is described as a ‘monoparty’.
[39] Mr Geary stated that he refused to enter the lift, and upon his refusal, Mr Sean Ellwood, Field Service Manager, said to him words to the effect, “fucking get in”. Mr Geary recalled that Mr Murray Wilson, Supervisor, took him aside and suggested to him that he should consult his doctor about his medical condition.
[40] Mr Geary stated that he was embarrassed and ashamed by the exposure of his issues with lifts during the monoparty incident. He had not told any of his co-workers, friends or family about his claustrophobia prior to the monoparty incident. Mr Geary stated that after the monoparty incident, he felt more comfortable discussing his claustrophobia with his co-workers, and he considered that it became common knowledge 2 amongst his co-workers, including Mr Wilson.
[41] Mr Geary’s evidence is that during the meeting of 31 July 2018 he asked the attendees about KONE’s existing knowledge of his issues with elevators. Mr Geary recalled that Mr Dowdle stated in reply, “There may have been some speculation about [Mr Geary’s] issues with lifts.” Mr Geary recalled that following Mr Dowdle’s statement, Mr Wilson ‘just looked at the floor and made no comment.’
[42] Mr Geary referred to the 2015 medical assessment report of Dr Edmonds described above at [11]. He submitted that both Dr Edmonds’ report and Mr Dowdle’s statement demonstrated that KONE should have been aware that he was not fit to perform elevator work.
[43] Mr Geary stated that Dr Edmonds had asked him during his assessment about his capacity to work in lifts, reading from a document provided to him by KONE. It is Mr Geary’s evidence that he explained to Dr Edmonds that he had walked seven flights up the fire escape stairs to be examined by Dr Edmonds, and he explained to him why.
[44] Mr Geary noted that the medical assessment described his position of employment as ‘Escalator Service Team T.A.’. Mr Geary submitted that he would not have passed that medical assessment if he had been required to perform elevator work at that time.
[45] Mr Geary submitted that he was employed by KONE as a member of the escalator service team and, in reliance on the Employee Duties clause of the Agreement and his long-term medical condition, could not be directed to perform elevator work by KONE.
[46] Replying to KONE’s submissions that Trades Assistants could work only with the supervision of a qualified tradesperson, Mr Geary stated that for extended periods of time over the years of his employment his only other co-worker within the escalator and travellator team had not been a qualified tradesperson. Despite this, the work of the escalator and travellator team was performed “effectively and without incident”. 3
[47] Replying to KONE’s submissions that KONE’s operational requirements necessitated Mr Geary’s transfer to the elevator repair team, Mr Geary submitted that there was no genuine requirement for him to be transferred to a position which KONE knew he was medically unfit to perform.
[48] Mr Geary noted KONE’s submissions acknowledged that “in the past, there may have been some anecdotal evidence of a concern on the part of [Mr Geary]”. 4 Mr Geary took issue with KONE’s characterisation that its knowledge of his claustrophobia was based on ‘anecdotal evidence’. He submitted that his medical condition was known by Mr Ellwood and Mr Wilson as a result of the monoparty incident and was common knowledge within his workplace, but was ignored by KONE until it became an issue of ‘crucial significance’ after KONE transferred Mr Geary to the elevator repair team.5
What is the classification in which Mr Geary is usually employed under the Agreement?
[49] Mr Geary submitted that he has been employed in two positions over his 23 years of employment at KONE. For the first 10 years of his employment he was employed as part of the lift repair crew, and for the last 13 years he has been employed as part of the escalator and travellator crew.
[50] Mr Geary noted KONE’s submission that the following definition of a Trades Assistant was applicable to his role:
“a person who has not obtained a trade qualification and who is not an apprentice working on the installation , modernization, repair and/or maintenance of lifts and escalators assisting a Tradesperson.”
[51] Mr Geary disagreed that that definition reflected the nature of his work duties.
[52] Mr Geary submitted that there is no practical distinction between his role and the role of a qualified tradesperson, and it is expected that all work tasks are performed equally. Mr Geary submitted that the escalator and travellator crew consists of only two people, and the work of that crew could not be completed if Mr Geary was limited to assisting a qualified tradesperson. Further, Mr Geary submitted that there had been ‘extended periods of years’ where no qualified tradespersons were allocated to the escalator and travellator crew.
[53] Mr Geary submitted that he had been required to train new, inexperienced employees who had joined his crew, which he submitted was outside the scope of the Trades Assistant role.
[54] Mr Geary stated that he had asked KONE on several occasions to assist him in acquiring a fitter classification, the next classification up from Trades Assistant, using his experience as recognised prior learning, but KONE had never offered him such assistance.
[55] Replying to KONE’s submissions, Mr Geary questioned why KONE had attempted to characterise his job description upon his return to work as being on ‘restricted duties’ where he was performing the exact same duties that he had performed for the previous 13 years. Mr Geary submitted that the term ‘restricted duties’ which KONE had originally proposed to insert in his return to work plan could not be included in his job description.
Is the performance of elevator work an inherent requirement of Mr Geary’s employment?
[56] Mr Geary repeated his submissions regarding Dr Edmonds’ medical assessment of 19 May 2015 regarding this question. He submitted that had elevator work been an inherent requirement of his employment he would not have passed Dr Edmonds’ assessment.
[57] Mr Geary also referred to a letter he received from WorkCover Queensland dated 3 January 2019, rejecting an application he made for workers’ compensation on 7 August 2018. Mr Geary referred to the following paragraph within that letter:
“Employer’s Response
A response was received from Mr Adam Pearson who confirmed you are an employee of Kone Elevators Pty Ltd.
Mr Pearson confirmed that you have been a worker since 17 January 1996. Mr Pearson describes that the role has not changed as you are employed as a trade assistant within the repair crew however you have been working with team specialising in escalators/travelators for approximately 12 years. Mr Pearson confirmed that Kone Elevators Pty Ltd were not aware that you suffered from claustrophobia and the management decision to change you from escalators to lifts was a business decision to cross skill staff.”
[58] Mr Geary submitted that KONE itself had described to WorkCover Queensland that Mr Geary was specifically employed to perform escalator and travellator work and submitted “not once in 13 years have I been requested to work on lifts.” 6 Mr Geary submitted that ‘lift duties’ were not an inherent requirement of his employed position.
[59] Replying to KONE’s submissions, Mr Geary maintained that in the last 13 years of his employment in the escalator and travellator team he had not once been requested to or had performed works on elevators. Mr Geary submitted that ‘the escalator and travellator work roster was a full-time roster’ and his payslips during the last 13 years had been labelled “escalators”.
Does the clause titled ‘Boundary/Limits to Work Tasks’ on page 14 of the Agreement act to allow Mr Geary’s work tasks to be limited in the sense that they do not include elevator work?
[60] Mr Geary again referred to Dr Edmonds’ 2015 medical report. Mr Geary noted that the medical report stated that its purpose was “...in the interests of prevention of occupational injury/illness placement of employees in positions suited to their medical capabilities…” 7 Mr Geary submitted that Dr Edmonds’ report limited the tasks he could competently perform to escalator and travellator duties due to his medical issues.
[61] Mr Geary submitted that the requirement within the ‘Boundary/Limits to Work Tasks’ clause that “employees shall perform the duties required of them provided…they are given adequate supervision and a safe working environment” has the effect that his work tasks are limited in the sense that they do not include elevator work.
Was the notification by KONE to Mr Geary to perform elevator work a ‘major change’ pursuant to the clause entitled ‘Consultation Term’ on page 13 of the Agreement?
[62] Mr Geary submitted that the decision to transfer him to the elevator repair team was a major change to his employment pursuant to the ‘Consultation Term’ clause.
[63] Mr Geary submitted that the major change to his employment arose after KONE lost two large contracts, including one for services to Queensland Rail. As a result of losing those contracts, four KONE employees were displaced and needed to be transferred to other parts of the business. Mr Geary submitted that one displaced employee who had worked night shifts as part of the escalator and travellator team was transferred to Mr Geary’s position while he was transferred to the elevator repair team. Mr Geary submitted that the displaced employee had been willing and able to work in the elevator repair team, but nonetheless had been transferred to Mr Geary’s position. 8
[64] Mr Geary submitted that he had worked full-time for 23 years, but following the rejection of his workers’ compensation claim he had been directed to work part-time hours of four hours per day. Mr Geary submitted that that change was a major change to his income and normal work duties.
[65] Mr Geary stated that after he provided KONE with his return to work plan he had presented for work on 4 December 2018, but Mr Wilson had sent him home on leave without pay as there was no work that Mr Geary was able to perform. Mr Geary submitted that the restrictions within his return to work plan (set out at [17] above) had made him ‘virtually unemployable’ and submitted that that had been KONE’s intention in inserting those restrictions in his return to work plan.
[66] Mr Geary stated that on 24 December 2018 after further discussions with KONE it was agreed that Mr Geary would return to work on a full-time basis and would be permitted to “work alone & in basements and all sites whether they were deemed suitable or unsuitable.” 9
Statement and evidence in reply to Mr Dowdle’s statement
[67] Prior to the hearing of this matter Mr Geary filed a statement in reply to Mr Dowdle’s statement. Mr Geary gave further evidence regarding the evidence of Mr Dowdle at the hearing of this matter which was not fully articulated in his reply statement.
[68] Mr Geary disagreed with Mr Dowdle’s evidence regarding the transfers of an inexperienced and an experienced KONE employee to facilitate upskilling, which resulted in his own transfer. Mr Geary stated that he had discussed the matter with both of those employees, as follows.
[69] Mr Geary alleged that the inexperienced employee, Mr Chris Dodd, had requested to be moved from the escalator and travellator team to a team performing elevator work, but had not requested any form of training. Mr Geary alleged that Mr Wilson had met with Mr Dodd and informed him that Mr Geary was being transferred to the elevator repair team, whereupon Mr Dodd had asked why Mr Geary was being transferred when it was Mr Dodd that wanted to perform elevator work. The experienced employee, Mr Darryl Fox, had requested to be moved from the elevator repair team but had not indicated any desire to train or upskill other employees.
[70] Mr Geary agreed that on 10 July 2018 he received a phone call from Mr Wilson and Mr Dowdle during which they informed him he would be transferred to the elevator repair team. Mr Geary submitted that at the time of that phone call, Mr Wilson knew that Mr Geary “…would not be able to accept” the proposed changes to his employment, and that if Mr Dowdle was unaware of any medical record within KONE’s files of Mr Geary’s medical condition, that was due to the negligence of Mr Dale Baker, KONE’s safety officer during 2015, to file and/or take action on Dr Edmonds’ 2015 medical report. 10
[71] During his evidence given at hearing, Mr Geary referred to a letter from his treating medical practitioner that had been provided to KONE after 10 July 2018, but before the meeting of 31 July 2018. The medical letter, dated 16 July 2018, stated:
“Dear Sir/Madam,
Mr Brett Geary is a regular patient of mine and has been for over 35 years. Over the years I’ve got to know him quite well. He has come tonight concerned about his latest regular work position, which entails him working on lifts.
Initially this did not cause him any concern, but over the years several work place incidents have occurred with him working in lifts, that has caused him to develop a significant phobia working in such enclosed environments. He is now experiencing significant difficulty working on the lifts that he has been asked to do, and it is in fact starting to have an adverse effect on his health. It has reached the stage that he is worries about having a panic attack that could endanger his health and the health of his co-workers.
I have advised him that I feel it is in his health’s best interest to cease working on lifts and see if another form of work environment can be obtained.
…”
[72] On 17 July 2018 and in response to the above email and medical letter, Mr Hodge emailed Mr Geary, copying-in amongst others Mr Dowdle and Mr Wilson:
“Thanks Brett for the email and advise [sic] below.
I have looped in Tony and Murray the concerns raised and they will review the below letter around your highlighted working restrictions with HR and be back in touch as we need to ensure your safety in the field first and foremost.
Stay safe and I hope you have enjoyed your extended holiday.
Regards
David Hodge
Regional Service Manager
Queensland & Northern Territory”
[73] Replying to Mr Dowdle’s statement that Trades Assistant employees are required to be flexible in their work and support qualified tradespersons across KONE’s range of products, Mr Geary submitted that he had held only two positions of employment within 23 years of working for KONE. He stated that the one other Trades Assistant within the Brisbane area had held only a few positions of employment over 30 years of work with KONE. Mr Geary stated that he had performed duties ‘above and beyond that required by a Trades Assistant’.
[74] Mr Geary disagreed with Mr Dowdle’s statement that his transfer to the elevator repair team was not a ‘major change’ to his employment. Mr Geary submitted that KONE’s knowledge of his inability to work in lifts, on both an organisational level and being ‘common knowledge’ within KONE’s workforce, had the effect that transferring Mr Geary to the elevator repair team was “…not within the contractual terms of the agreement between [KONE] and Brett Geary…”. 11
[75] Further, Mr Geary submitted that his transfer to the elevator repair team resulted from KONE’s loss of two large contracts necessitating the redeployment of four other KONE employees, which in turn resulted in Mr Geary’s own transfer. Mr Geary submitted that his transfer was merely a part of a major change to KONE’s enterprise following the loss of those contracts and the redeployment of several KONE employees.
[76] Replying to Mr Dowdle’s statement regarding KONE’s knowledge of Mr Geary’s claustrophobia, Mr Geary confirmed that he does not submit that KONE knew that he suffered from ‘severe claustrophobia’ at the time of his transfer. Rather, he submits that KONE knew from Dr Edmonds’ report and the common knowledge amongst his co-workers that he could not enter or work on lifts. Mr Geary noted his belief that had KONE investigated his medical condition further following Dr Edmonds’ report, his claustrophobia would have been diagnosed at that time.
[77] Mr Geary confirmed that he had described to Dr Edmonds his discomfort with lifts and working in confined spaces only after asked specifically by Dr Edmonds whether Mr Geary was willing and able to work on lifts, which Dr Edmonds read from a letter supplied to him by KONE. Mr Geary disagreed with Mr Dowdle’s statement that KONE had not been notified of Mr Geary’s issues with lifts because of the informality of Dr Edmonds’ comments; he submitted that Dr Edmonds’ comments appeared in a medical assessment requested by KONE and therefore could hardly be described as informal.
Evidence and submissions given at hearing
[78] During Mr Ellwood’s evidence, I asked Mr Geary whether he had known prior to the 2013 monoparty incident that he would be required to enter a lift for the monoparty. Mr Geary could not recall whether he had known that he would be required to enter an elevator prior to attending the monoparty incident.
[79] During Mr Wilson’s evidence, Mr Geary confirmed that he had eventually entered the lift during the monoparty incident at the urging of his co-workers, although he was highly embarrassed. Mr Geary stated that he had thought the doors of the lift would remain open during the monoparty, and he would not have entered the lift if he had known the doors would be closed. 12 I expressed surprise to learn so late in the hearing that Mr Geary had, in fact, entered the elevator.
[80] Mr Roger Law appeared as Mr Geary’s support person for the duration of the hearing of this matter. As the hearing progressed, I considered it appropriate for Mr Law to be sworn as a witness for Mr Geary. Mr Law did not give a witness statement prior to the hearing and as such, his evidence is limited to his oral evidence given during the hearing of this matter.
[81] Mr Law stated that he received a phone call from Mr Geary regarding his transfer to the escalator repair team after Mr Geary had discussed his transfer with Mr Wilson and Mr Dowdle on 10 July 2018. Mr Geary had told him that he was concerned about the transfer.
[82] Mr Law stated that as of 10 July 2018, he understood that ‘people in the office’ including Mr Wilson, Mr Dowdle and Mr Ellwood were aware of Mr Geary’s issues regarding lifts. Mr Law considered that those persons would have known of Mr Geary’s issues with lifts through dealing with Mr Geary over several years, although he conceded that he did not have any direct knowledge that Mr Wilson, Mr Dowdle and Mr Ellwood knew of Mr Geary’s condition as of 10 July 2018.
[83] After receiving Mr Geary’s phone call on 10 July 2018, Mr Law called Mr David Hodge and told him of Mr Geary’s condition. Mr Law described to Mr Hodge that Mr Geary’s condition was generally known within KONE’s workforce.
[84] Mr Law stated that on 11 July 2018 he attended a bargaining meeting regarding KONE’s proposed enterprise agreement. Before the commencement of that meeting, Mr Law and Mr Hodge stepped outside to discuss Mr Geary’s condition and his proposed transfer. Mr Law told Mr Hodge, “You can’t just shift him to lifts because [Mr Geary’s condition] is known in the workforce”. After returning to the meeting the other attendees noticed Mr Law was agitated and all attendees left the meeting room to discuss the issue. Mr Law stated that those persons were Mr David Hodge (Regional Service Manager), Mr Peter Baxter (Employee and Industrial Relations Manager Australia/NZ) and Mr David Torrance (Regional Director).
[85] Mr Law recalled that Mr Hodge described that a member of the elevator repair team, Mr Dodd, had requested additional training regarding escalators and travelators. Accordingly, KONE had decided that a trade-qualified fitter should be transferred to the escalator and travelator team to facilitate Mr Dodd’s training.
[86] Mr Law recalled that Mr Baxter asked why Mr Geary could not have trained Mr Dodd, given Mr Geary’s significant experience with escalators and travelators, and it was confirmed that Mr Dodd could only lawfully be trained by an employee with a trade certification.
[87] Mr Law gave evidence about his recollection of the meeting of 31 July 2018, which he had attended with Mr Geary. Mr Law recalled that Mr Geary had maintained during the meeting that KONE possessed documents describing his medical condition, although did not at that time expressly refer to Dr Edmonds’ 2015 medical report, while KONE maintained that no such documentation existed.
[88] I put to Mr Law that Dr Edmonds’ 2015 medical report stated that Mr Geary was “…capable of carrying out lift servicing if required.” and “...any psychological concerns re working in lifts are outside the scope of this assessment and, if deemed necessary, should be further assessed with a formal Independent Clinical Assessment.” Mr Law submitted that, had KONE had that document before them during the meeting of 31 July 2018, it would have been apparent that Mr Geary had a medical condition affecting his ability to perform elevator work.
[89] Mr Geary asked Mr Law whether he could confirm that Mr Wilson had told him that if KONE lost the Queensland Rail contract, as many as four employees ‘may have to go, maybe even himself’. Mr Law recalled Mr Wilson saying that some employees ‘may have to go, maybe even himself’ if KONE lost the Queensland Rail contract, although he could not recall the date of Mr Wilson’s comments.
[90] In cross-examination, Mr Law confirmed that he first became aware of the existence of Dr Edmonds’ 2015 medical report on 22 October 2018. Mr Law confirmed his understanding that although Mr Geary may have referred as early as 10 July 2018 to a medical report that dealt with his issues with lifts being ‘out there’, it was not until later in 2018 that Mr Geary determined that Dr Edmonds’ report was the report he had had in mind earlier.
Evidence of Mr Anthony Dowdle
[91] Mr Anthony Dowdle has worked for KONE since 1988 and has held the position of Service Operations Manager within KONE’s Brisbane operations since 2007. Mr Dowdle’s duties include managing the operations of the maintenance and service areas of KONE’s business. He is tasked within ensuring that KONE’s maintenance and service teams are properly staffed.
[92] Mr Dowdle stated that most of KONE’s field employees are qualified electricians or mechanical fitters. It is more difficult to move those employees between teams as it can upset the capabilities of a team by moving a qualified tradesperson. For that reason, Trades Assistant employees are required to be more flexible in their work between teams. Mr Dowdle noted that there was only one other Trades Assistant working in Brisbane, and that employee had been required to move between teams on several occasions.
[93] Mr Dowdle stated the escalator team was mostly stable, but employees had been required to move from that team on previous occasions. Mr Dowdle gave an example of when a permanent night shift escalator team was created to deal with a particularly large contract, and volunteers from the existing escalator team were sought to transfer to the newly created team.
[94] Mr Dowdle stated that the terms of Mr Geary’s employment were fixed by his original letter of appointment and the Agreement. Mr Dowdle stated that the Agreement did not provide a definition of the Trades Assistant classification. However, Mr Dowdle stated that a new enterprise agreement covering KONE’s ‘Northern’ and ‘Gold Coast’ region employees had been voted up and was at the time of the hearing before the Commission for approval. That agreement included a definition of the Trades Assistant position which Mr Dowdle stated reflected KONE’s existing understanding of the position, and is as follows:
“a person who has not obtained a trade qualification and who is not an apprentice working on the installation, modernization, repair and/or maintenance of lifts and escalators assisting a Tradesperson.”
[95] Mr Dowdle stated that Mr Geary possessed the necessary skills, competencies and training to fulfil the Trades Assistant role in any of the escalator, elevator or elevator repair teams, and the work that Mr Geary would have been required to perform in the elevator repair team would have been within his skills, competency and training to complete.
[96] Mr Dowdle stated that KONE did not consider the change to Mr Geary’s work to be a “major change…in relation to its enterprise” as contemplated by the Agreement’s ‘Consultation Term’ clause.
[97] Mr Dowdle stated that in mid-2018 he was advised by Mr Wilson that a member of the escalator and travelator team, Mr Dodd, had requested upskilling regarding escalators. At the same time, an experienced and trade-qualified mechanical fitter on the elevator repair team, Mr Fox, requested to move to a different team and also expressed interest in upskilling other employees. KONE decided that Mr Fox would be transferred to the escalator team to help upskill Mr Dodd. As a result, another member of the escalator team was required to transfer to the elevator repair team and KONE decided that Mr Geary should be transferred to the elevator repair team.
[98] When asked whether Mr Geary would have been better-qualified to train Mr Dodd, Mr Dowdle acknowledged that Mr Geary had significant experience with both elevator work and escalator and travelator work, but also stated that Mr Geary was not a qualified tradesperson, as Mr Fox is. Further, Mr Fox is a highly experienced KONE employee. Mr Dowdle stated that Mr Geary could not have supervised Mr Dodd’s upskilling because he was not a qualified mechanical fitter.
[99] Mr Dowdle stated that on 10 July 2018 he and Mr Wilson called Mr Geary to advise him of the proposed change. After advising Mr Geary of the proposed change, Mr Geary stated that it ‘did not work for him’ and he did not agree to the change. Mr Dowdle asked Mr Geary why the change did not work for him, and Mr Geary said to Mr Dowdle, “You know”. Mr Dowdle was confused by Mr Geary’s response and asked, “What do I know? What are you talking about?” to which Mr Geary responded, “My condition”. Mr Dowdle recalled that he said words to the effect that he was not aware of Mr Geary’s condition and nothing had ever been formally tabled.
[100] Mr Dowdle stated that at the time of the call he was not aware that Mr Geary had any such medical condition. In answering questions from Mr Geary, Mr Dowdle stated that prior to 10 July 2018 he had only heard rumours that Mr Geary did not like to work in lifts and had witnessed Mr Geary working around and on top of lifts. Mr Dowdle stated that he learned about the monoparty incident from Mr Wilson after 10 July 2018. When asked by me, Mr Dowdle agreed that prior to 10 July 2018 he had heard rumours that Mr Geary did not like to travel in lifts, but had not known that Mr Geary suffered from any diagnosed condition, including claustrophobia.
[101] Mr Dowdle stated that after the phone call he reviewed KONE’s employment records relating to Mr Geary, but could find no reference to Mr Geary’s medical condition preventing him from working in elevators, apart from the medical report of Dr Allan Miles of 30 August 2018; after KONE’s decision to transfer Mr Geary to the elevator repair team.
[102] Mr Dowdle was shown a copy of Dr Edmonds’ 2015 medical report. He stated that he was first shown a copy of that report in or about November 2018, although he had been told by Mr Wilson during 2015 that Dr Edmonds had cleared Mr Geary to return to work.
[103] Mr Dowdle noted Mr Geary’s reference to the medical clearance assessment prepared by Dr Ron Edmonds in May 2015, and stated that Mr Geary “…does not feel comfortable in lifts...”. Mr Dowdle stated that Dr Edmonds’ assessment was conducted to ascertain Mr Geary’s fitness for work after he had been treated for multiple skin lesions and had nothing to do with Mr Geary’s discomfort in confined spaces. Mr Dowdle noted that Dr Edmonds’ assessment expressly stated that “…psychological concerns RE working in lifts are outside the scope of this assessment…”. Mr Dowdle stated that due to the informality of Dr Edmonds’ reference to Mr Geary’s issues with lifts, KONE did not take Dr Edmonds’ report as a notification that Mr Geary was unfit to work in or around elevators.
[104] It was confirmed that Mr Dowdle was copied-in to Mr Hodge’s reply email of 17 July 2018 (set out above at [72]) to Mr Geary’s email providing the letter from his treating medical practitioner (set out above at [71]). Mr Dowdle agreed that he knew of the contents of Dr Miles’ letter as of the meeting of 31 July 2018 and knew at the least that Mr Geary had a significant phobia regarding entering lifts.
[105] Mr Dowdle stated that after KONE received Dr Miles’ medical report of 30 August 2018 describing Mr Geary’s claustrophobia in more detail, KONE attempted to work with Mr Geary to provide him with work that he was fit to undertake and which he could perform safely.
[106] In answering questions from Mr Law, Mr Dowdle stated that Mr Geary’s first proposed return to work plan was drawn up by himself, Mr Wilson and Mr Adam Pearson, KONE Safety Manager. Mr Law noted to Mr Dowdle the statements made in Ms Martin’s email of 7 December 2018 and the restrictions to his work duties described in that email, and asked Mr Dowdle how KONE had determine that Mr Geary could not work “…alone, or in basements or shopping centers where a sizable portion of KONE’s escalator work is carried out.” Mr Law put to Mr Dowdle that such restrictions went beyond what was necessary to cater for Mr Geary’s condition. Mr Dowdle stated that KONE had imposed restrictions on Mr Geary’s work that it considered necessary to ensure that Mr Geary was not put in any area that may aggravate his condition.
[107] In answering further questions from me, Mr Dowdle stated that KONE’s current approach to managing Mr Geary’s duties was for Mr Geary to “...identify any areas of concern for himself which he feels may exacerbate his condition before he commences any task” which is identified by Mr Geary in the completion of risk assessment forms completed by all KONE employees. Mr Dowdle could not point to any medical documentation supporting the restrictions described in Ms Martin’s email of 7 December 2018.
[108] Mr Dowdle conceded that the restrictions of Mr Geary’s work described in Ms Martin’s email of 7 December 2018 could perhaps have been better described and confirmed that Mr Geary could perform escalator work in basements and shopping centres provided that he is accompanied by another KONE employee. Mr Dowdle also conceded that the restriction that Mr Geary must be accompanied by another KONE employee when performing any escalator work was not reflected in the return to work plan signed by Mr Geary on 4 December 2018.
Evidence of Mr Sean Ellwood
[109] Mr Sean Ellwood appeared and gave evidence at hearing of this matter held on 12 March 2019. Mr Ellwood did not give a witness statement prior to the hearing and as such, his evidence is limited to his oral evidence given during the hearing of this matter.
[110] Mr Ellwood employed by KONE as a Field Service Manager. His duties relate to KONE’s elevator and elevator repair teams within the Brisbane metropolitan area. Mr Ellwood stated that he does not have any responsibility or supervisory duties over Mr Geary, although he had occasionally relieved in a supervisory role when Mr Geary’s ordinary supervisor was on leave or was otherwise unavailable.
[111] In cross-examination, Mr Geary put to Mr Ellwood that during the monoparty incident in or about 2013 he had told Mr Geary to “fucking get in” to the lift. Mr Ellwood estimated that he was involved in approximately 10 monoparties per year, with eight to ten employees attending each monoparty. Mr Ellwood could not recall the monoparty incident in or about 2013 at all.
[112] I asked Mr Ellwood what he may have done in the scenario that an employee that had attended for a monoparty refused to get into the lift. Mr Ellwood stated that he ‘would have found it a little bit odd and would have told them to get into the lift’. Mr Ellwood stated that the ordinary process for a monoparty was simple; an employee would be designated to manually control the lift’s brake and all present employees would then enter the lift, with the lift descent taking ‘30 seconds or so.’
[113] Mr Geary sought Mr Ellwood’s comment on KONE’s acknowledgement in its submissions that, “in the past, there may have been some anecdotal evidence of a concern on the part of [Mr Geary]” 13. Mr Ellwood stated that he had become aware that Mr Geary has issues with entering lifts ‘within the last couple of years’. He stated that he had never officially been told about Mr Geary’s issues with lifts but had instead learned of the matter through rumour and as a result of overhearing at least three telephone calls between Mr Wilson and Mr Geary during which Mr Geary’s issues had been discussed.
[114] Mr Ellwood stated that within the last two years he had overheard Mr Wilson requesting Mr Geary to obtain medical advice or an opinion about his condition. Mr Ellwood understood at the time of overhearing that phone call that Mr Geary’s condition was ‘a fear of elevators’.
[115] Mr Ellwood could not recall any discussions between him and Mr Wilson about Mr Geary’s condition. Mr Ellwood stated that Mr Wilson may have said to him words to the effect, “That’s the fourth time I’ve asked Brett now and he still hasn’t done anything”.
[116] In answering a question from me, Mr Ellwood agreed that Mr Geary’s condition is an odd one to have for a KONE employee. He could not recall ever expressing that opinion to Mr Wilson.
[117] Mr Murray Wilson appeared and gave evidence at the hearing of this matter held on 12 March 2019. Mr Wilson did not give a witness statement prior to the hearing and as such, his evidence is limited to his oral evidence given during the hearing of this matter.
[118] Mr Wilson stated that he is employed by KONE as a Supervisor, and supervises the escalator team and elevator repair team in addition to other functions within KONE’s business. Although his supervisory role has recently expanded, he has supervised the escalator team, including Mr Geary’s employment, for approximately 10 years.
[119] When asked by Mr Geary, Mr Wilson stated that he had been involved in the decision to move Mr Geary from the escalator team to the elevator repair team.
[120] Mr Wilson confirmed that on 10 July 2018 he had called Mr Geary and had notified him that he was going to be moved from the escalator team to the elevator repair team. He agreed that during that phone call Mr Geary had raised concerns about performing elevator work. Mr Wilson agreed that he attended a meeting on 31 July 2018 during which Mr Geary produced a medical certificate regarding his claustrophobia condition.
[121] Mr Geary referred Mr Wilson to KONE’s submissions that “in the past, there may have been some anecdotal evidence of a concern on the part of [Mr Geary]” 14 and asked Mr Wilson what, if any, knowledge he had of Mr Geary’s claustrophobia and particularly whether Mr Wilson recalled the monoparty incident described by Mr Geary.
[122] Mr Wilson did recall that the monoparty incident occurred in what he described as ‘the Ludowici building’. He confirmed that several KONE employees had attended the site to perform a monoparty after a lift became stuck on the top floor of the building. Mr Wilson recalled that he and Mr Ellwood had chosen employees to conduct the monoparty after ‘ringing around the troops’ and asking whichever employees were closest to the site to assist in the monoparty. Mr Wilson recalled that Mr Ellwood had been present at the time of the incident, although he did not recall Mr Ellwood swearing at Mr Geary. Mr Wilson recalled that Mr Geary had been hesitant to enter the lift at the time, but had eventually entered the lift.
[123] Mr Wilson stated that he did not recall taking Mr Geary aside or requesting or instructing Mr Geary to consult his doctor after the monoparty incident.
[124] I asked Mr Wilson when next he had discussed Mr Geary’s condition with him or other KONE employees. Mr Wilson stated that on approximately six other occasions he had asked Mr Geary to obtain a doctor’s certificate regarding his condition which Mr Wilson could show to KONE management to prove Mr Geary’s condition needed to be taken into account. Mr Wilson stated that the issue usually arose following discussions of employees moving between teams or when employees had been asked to participate in a monoparty and Mr Geary had stated that he could not move teams or participate in the monoparty because of his claustrophobia.
[125] Mr Wilson confirmed that if Mr Geary was in the area of a monoparty incident he could be required to participate in the monoparty. It is Mr Wilson’s evidence that people participating in a monoparty might be within a lift from 20 seconds to one minute.
[126] Mr Wilson estimated that he first discussed with Mr Geary the need for a doctor’s certificate regarding his medical condition ‘about six years ago’. Mr Wilson recalled that the most recent time he had asked Mr Geary to provide a doctor’s certificate Mr Geary had responded to the effect that there was ‘no need for him to get a doctor’s certificate because his doctor understands him’. 15
[127] I asked Mr Wilson whether he had disclosed to anyone else within KONE any of his discussions with Mr Geary about his medical condition. Mr Wilson stated that some of their discussions had occurred ‘out in public’ and people would have overheard him asking Mr Geary about his condition. However, he admitted that he had at best encouraged Mr Geary to see his doctor about his condition but otherwise had done nothing with the information. 16 Mr Wilson stated that he had not thought it appropriate to order an independent medical examination to assess Mr Geary’s claustrophobia because he had no proof that Mr Geary did in fact suffer from claustrophobia other than his word.
[128] Mr Wilson stated that within the last few years he probably would have told Mr Dowdle or other KONE personnel about Mr Geary’s claustrophobia, although none of those discussions were recorded in writing and he could not recall the content of any of those discussions.
[129] Mr Geary put to Mr Wilson that about 18 months prior to the date of the hearing there had been an occasion where several KONE employees had been required to go to the Brisbane airport. Ultimately, four employees had been chosen to go to the airport, but arrangements were made so that Mr Geary did not have to go to the airport as the airport security may have required him to travel in a lift during the attendance. Mr Wilson stated that he could not recall the incident described by Mr Geary.
[130] Mr Wilson recalled receiving Mr Geary’s medical certificate of 16 July 2018. He stated that he passed the medical certificate on and kept a copy of the medical certificate with Mr Geary’s timesheet.
[131] I sought Mr Wilson’s view on suggestions made by Mr Geary in his written material prior to the hearing, that during the meeting of 31 July 2018 Mr Dowdle had admitted that ‘there may have been some speculation’ about Mr Geary’s issues with lifts which Mr Wilson had not commented upon. Mr Wilson could not recall saying anything during or after that meeting about Mr Geary’s medical condition.
[132] Mr Law put to Mr Wilson that during the meeting of 31 July 2018, Mr Hodge said that Mr Geary would not be authorised to return to work until a doctor cleared him to return to work. Mr Wilson could not recall Mr Hodge making that statement.
[133] Mr Law put to Mr Wilson that he and Mr Dowdle had repeated throughout the meeting that there was no medical record of Mr Geary’s claustrophobia, which Mr Wilson agreed with. Mr Wilson understood that the outcome of the meeting had been that Mr Geary was required to provide further evidence as to why Mr Geary could not work on lifts.
[134] Mr Law asked Mr Wilson why, after the meeting of 31 July 2018 and on the basis of the medical certificate of 10 July 2018, KONE had not allowed Mr Geary to continue performing escalator work only ‘on full duties’ while it determined an appropriate approach to Mr Geary’s medical condition. Mr Wilson stated that he did not know why KONE had decided to stand Mr Geary down from his employment.
[135] I asked Mr Wilson why he had never raised Mr Geary’s claustrophobia to other areas of KONE’s business. He stated that he had asked Mr Geary to provide a doctor’s report so that he could raise the issue with KONE’s management.
[136] Mr Wilson confirmed that he had read Mr Geary’s RTW plan and a further risk assessment regarding Mr Geary. Mr Wilson understood that the risk assessment restricted Mr Geary from working by himself and further at several shopping centres due to concerns about Mr Geary being confined in certain basement areas at those shopping centres. Mr Wilson stated that he thought that those restrictions exceeded the available medical evidence of restrictions to be placed on Mr Geary’s work duties.
[137] Mr Wilson confirmed in re-examination that as of 10 July 2018 Mr Wilson had not received from Mr Geary any medical evidence regarding his claustrophobia or stating that he was unable to enter a lift. Mr Wilson confirmed that as of 10 July 2018 he had considered it reasonable to direct Mr Geary to transfer to the elevator repair team.
[138] In re-examination, Mr Wilson stated that monoparties were relatively infrequent, occurring perhaps six times each year within his area of responsibility. Mr Wilson could not recall any other occasion besides the ‘monoparty incident’ of in or about 2013 that Mr Geary had been required to participate in a monoparty.
Can KONE require Mr Geary to perform elevator work having regard to his long-term medical condition?
[139] KONE submitted that the primary consideration regarding this question was that Mr Geary should not and cannot be put to work unless he has the appropriate skills and capacity and it is safe for him to do that work. 17
[140] Relying on the evidence given by Mr Dowdle, KONE submitted that Mr Geary had worked as a Trades Assistant since 1996. KONE’s submitted that the skills and functions of the Trades Assistant role were principally to assist qualified tradespersons in their role. KONE submitted that ‘a certain degree of flexibility’ was required of tradespersons themselves, including that they have the skills to work in multiple areas of KONE’s business as operational requirements demand.
[141] KONE submitted that the only clause within the Agreement which may limit an employee to working within a particular part of the business was the ‘Employee Duties’ clause and its restriction that employees can only perform tasks that are within their, “skill, competence and training...” and “Any direction issued by KONE shall be consistent with KONE’s responsibilities to provide a safe and healthy working environment.”
[142] KONE submitted that Mr Geary has the necessary skills, competence and training to work across KONE’s entire business, and the work that Mr Geary could be directed to perform in any part of KONE’s business is consistent with the Trades Assistant classification. KONE submitted that there is no difference in classification or the general skills required of a Trades Assistant working with elevators and a Trades Assistant working with escalators.
[143] KONE submitted that putting Mr Geary’s long-term medical condition to one side for the sake of its argument, there would be no reason why KONE could not direct Mr Geary to transfer from escalator to elevator work as KONE’s operational requirements had necessitated in the circumstances.
[144] Turning to consider Mr Geary’s long-term medical condition, KONE submitted that it was not aware of any long-term medical condition of Mr Geary’s and had no records of such, including the claustrophobia condition that Mr Geary submitted that he suffers from.
[145] Regarding Mr Geary’s submissions that Mr Wilson and other KONE employees had witnessed Mr Geary refuse to enter an elevator, KONE accepted that “in the past, there may have been some anecdotal evidence of a concern on the part of [Mr Geary].” 18 However, KONE maintained that Mr Geary had not pressed his concerns further at the time and KONE had no formal records and did not possess any medical evidence that might support Mr Geary’s claustrophobia.
[146] Regarding Mr Geary’s 2015 medical assessment, KONE submitted that that medical assessment had nothing to do with claustrophobia and noted that Dr Edmonds, who had conducted that assessment, specifically declined to comment upon or assess Mr Geary’s claustrophobia condition.
[147] As set out in Mr Dowdle’s statement, KONE submitted that the first formal medical documents it received regarding Mr Geary’s claustrophobia were the reports of Dr Allan Miles during August 2018. KONE submitted that since it was formally advised of Mr Geary’s medical condition it had strived to “come to terms with [Mr Geary] as to what work he can and cannot do.” 19 KONE maintained that it would not require Mr Geary to undertaken any work that he is medically unfit to do.
What is the classification in which Mr Geary is usually employed under the Agreement?
[148] KONE submitted that Mr Geary is employed as a Trades Assistant, and has been employed in that classification since 1996. KONE noted Mr Dowdle’s statements about KONE’s understanding of the scope of the duties of the Trades Assistant classification and the proposed definition of a Trades Assistant to be included in KONE’s proposed enterprise agreement (see [94] above).
Is the performance of elevator work an inherent requirement of Mr Geary’s employment?
[149] KONE submitted that the essence of the Trades Assistant role is that they are able to provide assistance to a tradesperson for any of KONE’s products, including escalators and elevators, and it is an inherent part of the Trades Assistant role that they can ‘move freely’ across different product lines and can be directed to perform elevator or escalator work as KONE’s operational requirements dictate.
[150] KONE submitted that although Trades Assistants can express a preference to work with particular crews, they cannot unilaterally select where and with which crews they wish to work. KONE submitted that nothing within the Agreement or agreed particularly with Mr Geary limits KONE’s ability to direct him to work where KONE’s reasonable operational requirements dictate that he needs to work.
[151] KONE submitted that Mr Geary has the skill, competence and training to perform both escalator and elevator work.
Does the clause titled ‘Boundary/Limits to Work Tasks’ on page 14 of the Agreement act to allow Mr Geary’s work tasks to be limited in the sense that they do not include elevator work?
[152] Again, KONE submitted that the essence of the Trades Assistant role is that they have the skill, competence and training to assist Tradespersons throughout KONE’s business and across all of its product lines. KONE noted that, “…adequate supervision and a safe working environment must be and is always provided.” 20 KONE submitted that the clause does not limit Mr Geary’s work tasks to not include elevator work.
[153] KONE noted that the clause operates to support multi-skilling of its employees, which it submitted is essential to its business. KONE submitted that its employees are often required to move between teams or crews to support multi-skilling.
Was the notification by KONE to Mr Geary to perform elevator work a ‘major change’ pursuant to the clause entitled ‘Consultation Term’ on page 13 of the Agreement?
[154] KONE submitted that the notification to Mr Geary to perform elevator work was not a ‘major change’. KONE submitted that for the ‘Consultation Term’ clause to operate, both subparagraphs (1)(a) and (1)(b) of that clause must be met, requiring that:
(a) KONE has made a definite decision to introduce a major change to production, program, organisation structure or technology in relation to the enterprise; and
(b) the change is likely to have a significant impact on the employees.
[155] KONE acknowledged that moving Mr Geary from the escalator repair crew to the elevator crew could be a “significant change” to his employment, seemingly satisfying subclause (1)(b) of the ‘Consultation Term’ clause. 21
[156] However, KONE submitted that subclause (1)(a) of the ‘Consultation Term’ clause could not be enlivened by its direction to move Mr Geary from the escalator repair crew to the elevator crew. KONE argued that moving Mr Geary from one team or crew to another was contemplated by his employment contract and the Agreement and did not meet the bar set by the ‘Consultation Term’ clause that there must be a major change to production, program, organisation structure or technology in relation to KONE’s enterprise. KONE submitted that the highest characterisation of its direction to Mr Geary was that it had transferred him from one division to another, which still required no change to the terms and conditions of his employment.
[157] It is necessary to determine if there is appropriate jurisdiction vested in the Commission to determine the dispute between the parties. The Commission will only be entitled to determine the questions for arbitration if the dispute is in relation to a matter arising out of the Agreement, or the NES.
[158] In determining whether there is jurisdiction relevant to the ‘Employee Duties’ clause, I note that KONE may reasonably require an employee to perform work from time to time provided that such work is consistent with the classification in which he/she is usually employed. (my emphasis)
[159] It appears to me that the matter before the Commission is not relevant to which classification Mr Geary is employed in. He is a Trades Assistant, whether he is working on escalators or elevators. The ‘Classifications’ clause at page 19 of the Agreement distinguishes between an Electrical Fitter, Electrical Mechanic, Fitter, and so on. I do not accept that there is jurisdiction to determine the dispute relevant to the ‘classification’ in which Mr Geary is usually employed.
[160] The next sentence within the ‘Employee Duties’ clause references an employee’s skill, competence and training. Having regard to the authority in AMWU v Berri Pty Limited 22 I do not consider it appropriate to read ‘competence’ as ‘capacity’. Mr Geary has the skill, competence and training to perform elevator work. I accept that there are issues surrounding his capacity to safely perform elevator work. I do not accept that there is jurisdiction to determine the dispute relevant to Mr Geary’s skill, competence and training.
[161] The following sentence in the ‘Employee Duties’ clause is as follows:
“Any direction issued by KONE shall be consistent with KONE’s responsibilities to provide a safe and healthy working environment.”
[162] I consider it appropriate that if, as KONE asserts, Mr Geary is employed to perform all of the duties of a Trades Assistant, including both escalator and elevator work, any direction to perform such work shall be consistent with KONE’s responsibilities to provide a safe and healthy working environment. If, for example, another employee was pregnant, it would be incumbent on KONE, in issuing any direction to that employee, to provide a safe and healthy working environment and a dispute could arise over that issue, capable of being determined by the Commission. I accept that there is jurisdiction of the Commission to determine the dispute by virtue of the requirement by KONE, in issuing a direction to an employee, to provide a safe and healthy working environment.
[163] The question of jurisdiction relevant to the ‘Consultation Term’ clause within the Agreement essentially became a question for arbitration. It is, more appropriately, a question of jurisdiction.
[164] I accept KONE’s submissions that requiring Mr Geary to move from the escalator team to the elevator team could be a significant change to Mr Geary. I also accept KONE’s submissions that subclause 1(a) of the clause has not been satisfied, as KONE did not make a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise. It simply required Mr Geary (alone) to move from one team to another, and absorbed a small number of other employees into its teams on the loss of a substantial contract. I do not accept that there is jurisdiction to determine the dispute having regard to the ‘Consultation Term’ clause within the Agreement.
[165] I do not consider there is any jurisdiction within the ‘Job Security’ clause as it in place to ensure indirectly hired personnel are to be paid no less favourably than direct employees. Relevant to the ‘Boundary/Limits to Work Tasks’ clause, I do not consider that jurisdiction arises relevant to the terms ‘skill, experience and training’. For the same reasons as I have adopted above with the use of the words ‘skill, competence and training’, I do not consider that there is jurisdiction on those terms.
[166] However I do consider that there is a dispute between the parties relevant to the words, ‘and that they are given adequate supervision and a safe working environment’. For the same reasons I have stated above, upon KONE asserting that Mr Geary may be required to perform elevator crew work, there is jurisdiction to determine if, given his condition, he can ever have a safe working environment.
[167] Accordingly, on the issue of whether jurisdiction arises as to whether the dispute is in relation to a matter arising out of the Agreement, the answer is yes. As to whether the dispute arises out of the NES, Mr Geary was originally directed to go on personal leave. At some point in time he exhausted his paid leave accruals and was then on unpaid leave. Following the hearing, KONE communicated on a without prejudice basis that it would reimburse Mr Geary for all of this extensive period of time. Given that the payment was made on a without prejudice basis, I determine that Mr Geary’s dispute was in relation to the NES, and in particular to personal leave, and whether KONE could properly exercise a direction to Mr Geary to take personal leave.
Question 1 - Can KONE require Mr Geary to perform elevator work having regard to his long-term medical condition?
[168] The ‘Employee Duties’ clause provides that an employee shall perform such work as may be reasonably required by KONE, provided that such work is consistent with the classification in which he/she is usually employed, and such duties as are within the employee’s skill, competence and training and are not designed to promote de-skilling. Any direction issued by KONE must be consistent with KONE’s responsibilities to provide a safe and healthy working environment.
[169] Mr Geary’s letter of appointment of 16 January 1996 states that he is employed as a ‘Trades Assistant’. 23 The Agreement’s ‘Employee Rates’ clause provides hourly rates of pay for a Trades Assistant and a Trades Assistant Casual. The ‘Classifications’ clause defines the classifications under the Agreement; notably it does not include a definition for a Trades Assistant. However, the Trades Assistant classification will be defined as set out in Mr Dowdle’s evidence above at [94] in KONE’s next agreement and KONE submits that the Trades Assistant classification already matches that definition.
[170] Although Mr Geary submits that he has performed work over and above the type of work contemplated by the definition of a Trades Assistant described by Mr Dowdle, Mr Geary has not identified any other classification under the Agreement that he may hold. In fact, Mr Geary’s submission that KONE had not assisted him to acquire a Fitter classification favours a finding that Mr Geary has remained a Trades Assistant throughout his employment. While he may from time to time have been required to perform duties outside of what is typically required of a Trades Assistant, I am satisfied that Mr Geary has been employed as a Trades Assistant for the entire duration of his employment with KONE.
[171] There is nothing within the Agreement that recognises any difference between a Trades Assistant that performs elevator work and a Trades Assistant that performs escalator and travellator work. The Agreement does not describe the different crews or teams that perform different types of maintenance and installation work within KONE’s enterprise. I am persuaded by KONE’s submissions that Trades Assistants must have the skills, competencies and training to perform both elevator work and escalator and travellator work and that they must be able to move flexibly between each of those types of work.
[172] KONE’s creation of different teams to perform elevator work and escalator and travellator work is an operational decision; it is simply how KONE has determined to best divide its work amongst its employees. Whilst I recognise that Mr Geary at various times worked in teams performing elevator work and has at other times worked in teams performing escalator and travellator work, I am not satisfied that moving from one of KONE’s teams to another changed Mr Geary’s classification as a Trades Assistant. I do not accept Mr Geary’s submission that his classification prior to 10 July 2018 was a Trades Assistant performing only escalator and travellator work.
[173] It uncontested by the parties that Mr Geary performed elevator work for the first 10 years of his employment. Neither party submits that Mr Geary did not then and does not now have the skills, competencies, experience and training to perform elevator work. I am satisfied that Mr Geary has the skill, competence, experience and training to perform elevator work.
[174] The Agreement does not offer any guidance on what is meant by ‘designed’, ‘de-skilling’, or the entire phrase ‘designed to promote de-skilling’. Viewing the clause objectively, I consider that a reasonable person would understand the phrase ‘duties…not designed to promote de-skilling’ to mean duties that are not intended to bring about the result that a particular job requires less skill to be performed. I do not consider that the construction of the ‘Employee Duties’ clause is ambiguous or susceptible of more than one meaning.
[175] The Agreement’s ‘Work Health and Safety’ clause states “The parties to the Agreement agree that a safe and secure workplace is important and will comply with work health and safety laws.” Other than that sentence, the Agreement is not clear as to what KONE’s responsibilities to provide a safe and healthy working environment actually are.
[176] I do not accept Mr Geary’s submissions that because a medical practitioner in 2015 certified him fit for work relevant to his skin lesions, but noted Mr Geary’s concerns regarding elevators, that KONE was on notice that he had a significant injury. My findings are that the report was not made for the purpose of examining Mr Geary’s other illnesses or injuries; it was received by KONE and filed away. In fact, nobody could find this stated report, and it was necessary for Mr Geary to find an alternative way to have the report reproduced.
[177] Mr Wilson’s evidence is very concerning. He had approximately six telephone discussions with Mr Geary about Mr Geary’s potential condition, however nothing further was done about it. He left the matter to Mr Geary, when a prudent employer would have made firm and formal inquiries of Mr Geary’s condition. Mr Ellwood overheard three of Mr Wilson’s telephone calls to Mr Geary, yet he too did not embark on an inquiry.
[178] Some managers within KONE knew that Mr Geary might have an issue, but nobody took carriage of the situation. There was implicit knowledge that Mr Geary might have difficulties entering an elevator, yet during the monoparty incident in 2013, he did so.
[179] While working on escalators and travellators for 13 years is a very considerable period of time, I do not accept that Mr Geary was employed on the escalator and travellator team to the hypothetical exclusion of the elevator team. I consider that KONE would have been and is within its rights to require Mr Geary to perform elevator work. There was no contract entered into in any manner or form to promise to Mr Geary that he would only perform escalator or travellator work.
[180] Accordingly, I find that KONE can require Mr Geary to perform elevator work.
[181] As to the second limb of the question, KONE is required, pursuant to the Agreement, to provide a safe and healthy working environment. Mr Geary has stated that he is unable to safely work in elevators. Mr Geary’s inability to perform elevator work due to the safety concerns that would arise if he was required to do so must be a factor in KONE’s consideration if it asserts that it cannot offer restricted duties to Mr Geary. In my view, fairness under the unfair dismissal provisions of the Act would also need to be considered by KONE.
Question 2 – What is the classification in which Mr Geary is usually employed under the Agreement?
[182] As set out above in paragraphs [168] to [172], I am satisfied that Mr Geary is employed by KONE as a Trades Assistant. Mr Geary’s classification does not delineate between the performance of elevator work and escalator and travellator work.
[183] In hindsight, a better question for arbitration might have been ‘Is Mr Geary usually employed as an escalator and travellator technician to the exclusion of an elevator technician?’ If that were the question for arbitration I would find that Mr Geary is not, as a matter of contract between the parties an escalator and travellator technician to the exclusion of an elevator technician.
Question 3 – Is the performance of elevator work an inherent requirement of Mr Geary’s employment?
[184] The Agreement does not deal with the inherent requirements of the Trades Assistant position. On the evidence before me, I am satisfied that the performance of elevator work is an inherent requirement of Mr Geary’s employment. Accordingly, the answer to the question for arbitration is yes.
[185] However, his condition has been accommodated for a very large number of years, with and without KONE’s knowledge. For the better part of 13 years, Mr Geary’s condition has been a largely private matter for him, and I accept that KONE did not definitively know about it. In recent years, however, a small number of managers have become informally aware that there was an issue, but no formal inquiries were made.
[186] It appears to me that KONE can, with some modification of its crews, accommodate Mr Geary’s condition. That is, it appears to me that it can make some reasonable adjustments. Reasonable adjustments need not be promised to an affected employee for the length of their employment. That would, understandably, be too far a stretch. It is noted that Mr Geary is (now) 63 years of age. He has stated that he has a small number of years that he would like to continue to work for KONE before he retires.
[187] In determining this dispute, I agree that KONE can state that Mr Geary is required to perform all of the work it reasonably requires of him, but in consideration of his very lengthy service, and 13 years without servicing elevators, it is open to KONE to, at least at six-monthly intervals, determine whether it might be able to reasonably accommodate Mr Geary’s condition whilst affording him restricted duties. It would, in my view, form part of the Commission’s consideration in an unfair dismissal application if Mr Geary was dismissed.
Question 4 – Does the clause titled ‘Boundary/Limits to Work Tasks’ on page 14 of the Agreement act to allow Mr Geary’s work tasks to be limited in the sense that they do not include elevator work?
[188] Mr Geary acknowledges that he has the skill, competence and training to complete the duties that he is required to perform as part of the elevator repair team. However, the nature of KONE’s elevator repair work is that many of those duties must necessarily be performed in small and/or confined spaces and in, under or on top of elevators, including suspended elevators; environments that Mr Geary cannot enter without injury due to his severe claustrophobia. Mr Geary submits that the ‘Boundary/Limits to Work Tasks’ clause limits the duties he is capable of performing where an elevator work duty can only be performed in a small, confined or otherwise claustrophobic elevator space as that environment cannot be a ‘safe working environment’ for him.
[189] I consider that Mr Geary is working in and has been given a safe working environment, even if called upon to do elevator work. It is Mr Geary’s condition that makes it unsafe for him, but the interpretation of the clause is whether the employee is given a safe working environment. I conclude that it is safe, but Mr Geary’s personal circumstances make it unsafe for him, but that it does not render the working environment unsafe at large.
[190] For the reasons above, the answer is no.
Question 5 – Was the notification by KONE to Mr Geary to perform elevator work a ‘major change’ pursuant to the clause entitled ‘Consultation Term’ on page 13 of the Agreement?
[191] For the reasons above, at [164], the answer is no.
[192] For the reasons set out above I answer the question for arbitration as follows:
Question 1 – Can KONE require Mr Geary to perform elevator work having regard to his long-term medical condition?
Answer: Yes.
Question 2 – What is the classification in which Mr Geary is usually employed under the Agreement?
Answer: Trades Assistant.
Question 3 – Is the performance of elevator work an inherent requirement of Mr Geary’s employment?
Answer: Yes.
Question 4 – Does the clause titled ‘Boundary/Limits to Work Tasks’ on page 14 of the Agreement act to allow Mr Geary’s work tasks to be limited in the sense that they do not include elevator work?
Answer: No.
Question 5 – Was the notification by KONE to Mr Geary to perform elevator work a ‘major change’ pursuant to the clause entitled ‘Consultation Term’ on page 13 of the Agreement?
Answer: No.
Concerning material filed while the decision was reserved
[193] On 16 June 2019, Mr Geary communicated to my chambers, copying in KONE that he had been issued with a show cause letter dated 11 June 2019. The letter was provided, together with a medical report of Dr Jennifer Gunn produced on 17 May 2019 following an examination of Mr Geary on 17 May 2019.
[194] The show cause letter included the following:
“…Therefore, KONE is of the view that as the medical advice from Dr. Gunn says you appear to be unwilling to enter lifts, it means you are unable to undertake duties which are fundamental to the position you hold.
Furthermore, you have consistently shown you are unwilling to undertake any treatment to address and remedy your self-diagnosed medical condition. In this regard KONE has been very reasonable and very patient over several years, in suggesting a range of options to you to deal with this matter but you have not shown any willingness to co-operate or participate meaningfully in any return to work plan.
In the circumstances, you are instructed to show cause to KONE why your employment should not be terminated.
You should put your reasons to me by way of written response by no later than close of business on 19th June 2019………..
……..
David Torrance
Regional Director”
[195] The medical report of Dr Gunn included the following statements, and I note that the Commission was not supplied with the ‘file forwarded by KONE’ to Dr Gunn:
“He reported he took the matter to the Fair Work Commission at the end of 2018, probably November 2018 and he reported as a result he signed a return to work without prejudice. He denied that he had appealed the Fair Work decision and he denied that the Fair Work Commissioner had found against him.”
and
“I note the file forwarded by KONE Elevators Pty Ltd. I note the repeated files with return to work plans and due to wording – Mr Geary taking exception and not proceeding. I note the finding of the Fair Work Commissioner and the requirement for Mr Geary to return to work in whatever position KONE thought appropriate.”
[196] I am not in any way critical of Dr Gunn, as she may have been supplied with incorrect information. Until this decision, no decision has been made by the Commission relevant to Mr Geary. It is concerning that the show cause letter above describes Mr Geary being required to enter lifts, which is said by KONE to be duties which are fundamental to the position he holds. This is precisely the matter before the Commission to determine; not for KONE to threaten Mr Geary’s employment, and, it seems, inform Dr Gunn that it had been determined when it had not.
[197] Of further concern is the statement within the show cause letter that KONE has been patient with Mr Geary over several years, suggesting a range of options for him to deal with his matter. On the evidence before the Commission, that is simply not true. KONE has argued before me that it had no general knowledge prior to mid-2018 that Mr Geary had a condition. It is clear that Mr Wilson knew that there some issue, but he didn’t intervene.
[198] As a result of the material provided to chambers, the following email was sent to the parties on my behalf on 17 June 2019:
“Dear parties,
The Commissioner’s decision in this matter remains reserved. It is anticipated the decision will be released shortly.
The Applicant’s correspondence of 16 June 2019 has been received. It is noted that the Applicant is required to reply in writing to the Respondent’s letter of 11 June 2019, requiring him to ‘Show Cause: Refusal to Undertake inherent duties’.
It is noted that a jurisdictional objection remains before the Commission as to the application of the dispute settling procedure within the KONE Service Employees Northern Region & Gold Coast Region Enterprise Agreement 2014 (the Agreement).
Whilst noting the jurisdictional objection, the Commissioner draws the parties’ attention to the “Dispute Settling Procedures” term on pages 41 – 42 of the Agreement, which provides in part:
“(6) While the parties are trying to resolve the dispute using the procedures in this term:
(a) During the Dispute Settling Process work will continue as directed by the company as they would have normally prior to the matter giving rise to the dispute, providing that those directions are safe and legal……….”
The Commissioner’s preliminary view is that the Respondent’s letter of 11 June 2019 may set out a course of action that could contravene the above term.
On that basis, the Commissioner considers that it may be necessary to issue an Interim Order to ensure that the terms above are met. The effect of the Interim Order, it is anticipated, would prevent the Respondent from requiring the Applicant to show cause as to why his employment should not be terminated.
The Commissioner seeks each party’s views on the Commissioner’s proposition to issue an Interim Order regarding this matter…”
[199] Later that day Mr Geary communicated that he would request an interim order is made should KONE not adhere to the Disputes Settling Procedure within the Agreement.
[200] KONE communicated on 17 June 2019 that noting the decision was to be shortly issued, it was prepared to defer any further action pursuant to the show cause letter issued to Mr Geary pending receipt of my decision. Mr Geary communicated on 18 June 2019 that he was satisfied with KONE’s undertaking and he did not press an application for an interim order.
[201] Further, I noted to the parties that I had been made aware of Dr Gunn’s medical report of 17 May 2019 and KONE’s show cause letter and it was my preliminary opinion that those documents could include information which should be taken into account in my decision. As such, I allowed the parties to make any written submissions that they wished to make regarding those documents.
[202] Mr Geary provided written submissions regarding Dr Gunn’s report and KONE’s Show Cause letter. Mr Geary contested the accuracy of the information set out in Dr Gunn’s report of the matters that Mr Geary disclosed to her during his examination on 17 May 2019.
[203] KONE declined to make any submissions regarding Dr Gunn’s medical report or the Show Cause letter.
[204] I confirm that I have not had regard to any of the material from [193] to [203] in determining the questions for arbitration.
COMMISSIONER
Appearances:
B Geary and R Law for the Applicant.
D Miller of AI Group for the Respondent.
Hearing details:
2019.
Brisbane.
March 11 to 12.
Final written submissions:
Applicant, 27 March 2019.
Respondent, 20 March 2019.
Printed by authority of the Commonwealth Government Printer
<PR709823>
1 Applicant’s submissions in reply. dated 22 February 2019, Exhibit A6, pg 1.
2 Applicant’s submissions, dated 16 January 2019, Exhibit A2, pg 1.
3 Applicant’s submissions in reply. dated 22 February 2019, Exhibit A6, pg 1.
4 Respondent’s submissions on questions for arbitration, 15 February 2019, pg 2.
5 Applicant’s submissions in reply. dated 22 February 2019, Exhibit A6, pg 2.
6 Applicant’s submissions, dated 16 January 2019, Exhibit A2, pg 3.
7 Medical Clearance Assessment Initial Report, 19 May 2015, Dr Ron Edmonds, Exhibits A2.
8 Applicant’s submissions, 16 January 2019, Exhibit A2, pg 4; Applicant’s submissions in reply. dated 22 February 2019, Exhibit A6, pg 3.
9 Ibid, pg 4.
10 Applicant’s reply to statement of Anthony Dowdle, dated 22 February 2019, pg 1.
11 Ibid, pg 2.
12 Audio record of Hearing of 12 March 2019, 3:23:55.
13 Applicant’s reply to statement of Anthony Dowdle, dated 22 February 2019, pg 2.
14 Ibid, pg 2.
15 Audio record of Hearing of 12 March 2019, 3:26:50.
16 Audio record of Hearing of 12 March 2019. 3:28:30.
17 Respondent’s submissions on questions for arbitration, 15 February 2019, pg 1.
18 Ibid, pg 2.
19 Ibid, pg 2.
20 Ibid, pg 4.
21 Ibid, pg 4.
23 Statement of Mr Anthony Dowdle, 15 February 2019, TD-1.