DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chi Nguyen
v
KDR Victoria Pty. Ltd. T/A Yarra Trams
(U2018/3593)

Application for an unfair dismissal remedy; whether there was a valid reason for dismissal; whether Applicant was permanently unfit for duty; notification of reason and opportunity to respond; dismissal unfair.

Introduction

[1] On 6 April 2018, Mr Trung Chi (Charlie) Nguyen (Applicant) applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant commenced employment with a predecessor of KDR Victoria Pty Ltd T/A Yarra Trams (Respondent) on 15 August 1979. 1 The Applicant worked at the Brunswick depot for the entirety of his employment with the Respondent and has been a tram driver for the majority of the employment period.2 The Applicant was dismissed by the Respondent by letter dated 16 March 2018 effective immediately.3 The Applicant was paid five weeks pay in lieu of notice.4 At the time of dismissal the Applicant was 73 years of age.5

[2] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 6 These matters are not in dispute and I find that:

•  The application was made within the prescribed time pursuant to s.394(2) of the Act;

•  The Applicant was, at the time of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;

•  The Respondent was not a small business employer within the meaning of the Act and so the Small Business Fair Dismissal Code does not apply; and

•  The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] For the reasons which follow, I have concluded that the Applicant’s dismissal was unfair.

Background, factual context and factual findings

[4] The dismissal of the Applicant, which in shorthand, was for the reason that the Applicant was said to be permanently unfit for duty, occurred against the backdrop of the National Standard for Health Assessment of Rail Safety Workers (Standard). The examination and assessment conducted by a medical practitioner of the capacity of a rail safety worker is made in accordance with the medical criteria contained in the Standard relevant to the particular condition or disorder. It is convenient therefore to begin with a summary of the legislative regime under which the Standard operates and to set out relevant provisions of the Standard.

[5] The Rail Safety National Law (RSNL) was first enacted in South Australia in 2012, as a schedule to the Rail Safety National Law (South Australia) Act 2012. Each other Australian State and Territory has either replicated that RSNL or passed a law to the effect that the RSNL is the rail safety law in that State or Territory. The RSNL operates as a law of Victoria by s.6 of the Rail Safety National Law Application Act 2013 (Vic). It does not regulate tram operators. 7 That regulation is achieved through the Rail Safety (Local Operations) Act 2006 (Vic) (RSLO Act). The RSLO Act has application to Victorian railways excluded from the coverage of the RSNL. It has the effect of mirroring obligations in the RSNL and applies to the Respondent.8 Among the many obligations, there is a requirement that a rail transport operator ensure, so far as is reasonably practicable:

“(b) that each rail safety worker who is to perform rail safety work in relation to the operator’s railway operations-

(i) is of sufficient good health and fitness to carry out that work safety; and

(ii) is competent to undertake that work ...” 9

[6] The Rail Safety (Local Operations) (Accreditation and Safety) Regulations 2017 (Vic) contain requirements about the health and fitness of rail safety workers. Relevantly, regulation 32 requires rail transport operators to implement a health and fitness program that complies (so far as is reasonably practicable) with the Standard.

National Standard for Health Assessment of Rail Safety Workers

[7] The Standard was developed to provide guidance to rail transport operators for managing the risks associated with ill health of rail safety workers. It is by reference to this Standard that the Applicant’s capacity was assessed.

[8] The purpose of the Standard is outlined in section 1.1 relevantly as follows:

“1.1. Purpose of this Standard

Under the Rail Safety National Law (RSNL), rail transport operators are required to manage the risks posed by the ill-health of rail safety workers. This National Standard for Health Assessment of Rail Safety Workers (the Standard) provides practical guidance for rail transport operators to meet these obligations. This responsibility is an essential part of an operator's rail safety management system 1, which aims to minimise risks and protect the safety of:

•  the public

•  rail safety workers and their fellow workers

•  the environment.” 10

[9] The application and scope of the Standard is set out in section 1.2, which relevantly provides:

“1.2. Application and scope of this Standard

This Standard applies to all rail transport operators and to all rail safety workers. This Standard takes effect on 1 February 2017. On it taking effect it will replace the National Standard for Health Assessment of Rail Safety Workers, June 2012. This Standard relates to health assessments and procedures for monitoring and managing the health and fitness of workers in relation to their ability to perform rail safety duties.” 11

[10] Part 2 of the Standard is entitled “the health risk management system”. It provides that the “requirements for rail safety worker health assessments are to be determined by a risk management approach” and that this “aims to ensure the level and frequency of health assessments conducted is commensurate with the risk associated with the tasks performed by rail safety workers”. The aim is said to be as follows:

“The aim of the health risk management process is to:

•  identify what could go wrong in the case of physical or psychological ill-health;

•  assess the consequences; and

•  establish appropriate controls for the risks associated with ill-health.

The health risk management process focuses on a consideration of the extent to which the worker’s physical or psychological health could contribute to a serious incident on the rail network that may result in either:

•  the death of a person; or

•  incapacitating injury to a person; or

•  a collision or derailment involving rolling stock that results in significant damage; or

•  any other occurrence that results in significant property damage.

A further consideration is the extent to which the worker’s health affects their own safety and that of fellow rail safety workers.” 12

[11] Section 5.2.3 notes that “certain tasks will have specific requirements, for example, colour vision, hearing or musculoskeletal attributes”. Section 5.2.4 deals with functional and practical assessments and relevantly provides the following:

“In some situations, a clinical health assessment may need to be supplemented by a functional or practical test to confirm fitness for duty. For example, a functional assessment of some neurological conditions or of musculoskeletal capacity may be applied to confirm the worker’s ability to perform the particular tasks required of them.

…

Practical or functional assessments of musculoskeletal function may be conducted by people appropriately trained in the test procedure and with experience of the tasks involved, such as an occupational therapist, a physiotherapist, a principal driver or other experienced staff. Such people should work in conjunction with the Authorised Health Professional.

A principal driver (or equivalent) is a senior driver with wide experience who is often involved in training other drivers. A worker with borderline impairment may be referred to a principal driver for a practical test to assess work performance. This is particularly relevant to musculoskeletal and neurological impairments. Similarly, other experienced staff may assist in assessing work performance of Safety Critical Workers in other jobs. Such an assessment should be arranged through the worker’s manager.” 13

[12] Relevantly, section 5.3.3 addresses triggered health assessments and includes the following:

“Triggered health assessments overlay the scheduled periodic health assessments and enable early intervention, appropriate management and timely monitoring of health problems that are likely to affect safety.

Referral for a triggered health assessment may be prompted by a number of different circumstances. In turn, these circumstances will determine the nature and extent of the health assessment required, as illustrated in the following examples.

Health assessment triggered by concerns about a worker’s health

Triggered assessments provide an opportunity to investigate health concerns that arise between periodic assessments. Rail transport operators should be alert to indicators of ill health, such as recurrent absenteeism, repeated incidents and recent traumatic events, and should discuss these with the rail safety worker. This may lead to a triggered referral for a health or neuropsychological assessment, retraining in competencies or referral to an Employee Assistance Program.

...

The nature and extent of the health assessment in these circumstances will depend on the individual’s condition and the status of their treatment, and will be determined by the Authorised Health Professional. The rail organisation should request a triggered assessment based on advice provided by the Authorised Health Professional in the previous health assessment report. It is not the responsibility of the rail organisation to determine the extent of the assessment required.

…

Assessments relating to further investigation to diagnose/treat a medical condition (Fit Subject to Review or Temporarily Unfit for Duty)

Similar to above, a periodic assessment may flag the need for further investigation or treatment to establish fitness for duty or to treat a specific condition. The worker may be categorised Temporarily Unfit for Duty or Fit Subject to Review while tests are being conducted or while specialist opinion is being sought about a particular condition. The Authorised Health Professional will request a review to consider these further inputs. This triggered review will be specific in nature and will relate to the condition or treatment in question. It will not comprise another full assessment.

The rail organisation should request a triggered assessment based on advice provided by the Authorised Health Professional in the previous health assessment report. It is not the responsibility of the rail organisation to determine the extent of the assessment required.” 14

[13] The Standard also provides standard terminology for reporting and managing rail safety workers’ fitness for duty, including: 15

5.4.1. Fit for Duty Unconditional

This indicates the worker meets all criteria in the Standard and is to be reviewed in line with the normal periodic health assessment schedule.

5.4.2. Temporarily Unfit for Duty

This indicates that the worker does not meet the criteria for Fit for Duty Unconditional and cannot presently perform current rail safety duties. Their health situation is such that they may pose a risk to safety and therefore should not continue current rail safety duties. They must undergo prompt assessment to determine their ongoing status and be definitively classified. Temporarily Unfit for Duty may also be applied in situations where a clear diagnosis has not been made-for example, in the case of an undifferentiated illness where a worker is being investigated for blackouts. The worker may be assessed as fit for alternative duties.

5.4.3. Fit for Duty Conditional

This indicates that the person meets all criteria in the Standard provided that they wear appropriate aids (e.g. corrective lenses, hearing aids, prostheses).

5.4.4. Fit for Duty Subject to Review

This indicates the worker does not meet the criteria for Fit for Duty Unconditional; however, the condition is sufficiently controlled to permit current rail safety duties. Continuation of normal duties is conditional on the worker being reviewed more frequently than the periodic health assessment schedule. The review period is specified by the Authorised Health Professional.

This classification may also apply as a provisional classification for a newly diagnosed condition which does not pose an immediate risk to safety but requires further investigation. In this situation, workers must undergo prompt assessment to determine their ongoing status and be definitively classified.

5.4.5. Fit for Duty Subject to Job Modification

This indicates the worker does not meet the criteria for Fit for Duty Unconditional, but could perform current rail safety duties if suitable modifications were made to the job. These modifications may include:

•  modification of physical equipment

•  roster changes, or

•  worker supervision.

Job modifications may not be practicable in various areas of rail safety work. The worker may also be classified Fit Subject to Review if more frequent review of their condition is required.

5.4.6. Permanently Unfit for Duty

This indicates that the worker does not meet the criteria for Fit for Duty Unconditional or Fit for Duty Subject to Review (or any other conditional category). Their condition is permanent (defined as unfit for 12 months or more) and they will not be able to perform current rail safety duties in the foreseeable future. Normal company policies such as redeployment may be considered.

[14] Section 6.6.3 sets out particular musculoskeletal requirements as follows:

“6.6.3. Musculoskeletal requirements

It is not possible to make generic statements regarding the musculoskeletal capacity required for Safety Critical Work because the nature of such work can vary widely. All jobs, whether Category 1 or Category 2, need to be assessed regarding their inherent requirements and hence the musculoskeletal capacities required to perform them. Most Category 1 Safety Critical Workers require soundness of limbs, neck, back and good balance. Category 2 tasks such as train controlling require only limited musculoskeletal capacity. In the case of Category 3 workers, the assessment focuses on their mobility and capacity to move quickly from the path of an oncoming train. The following are provided as examples and are not intended to be exhaustive for every task.

•  train driving requires good musculoskeletal capacity to:

– sit and drive the train using the arms and legs;

– walk about the train on uneven track and ballast - a fault in a wagon may involve sustained effort for it to be shunted out of the train;

– join heavy couplings, bend and check bogies;

– enter and exit the cab to and from the ground routinely and in an emergency - in an emergency, there may be quite a drop between the lowest step and the ground;

– move rapidly from the path of an oncoming train.

•  flagman (hand signaller) duties require good musculoskeletal capacity to:

– move quickly over uneven track and ballast;

– place detonators quickly and accurately on the track;

– signal to trains;

– move rapidly from the path of an oncoming train.

•  shunting requires good musculoskeletal capacity to:

– move over uneven track and ballast;

– rapidly board or alight from trucks or carriages;

– open or close stiff, large coupling mechanisms;

– switch points;

– move rapidly from the path of an oncoming train.

•  train controlling requires only limited musculoskeletal capacity:

– controllers typically work in an indoor environment and do not have to access the track;

– they require musculoskeletal capacity to work with computer screens and keyboards, paper records and telephones.

•  tram driving requires good musculoskeletal capacity to:

– sit for long periods;

– operate master control;

– board and alight from tram for operational purposes including emergency situations.” 16

[15] Section 12.2 of the Standard deals with clinical assessments and section 12.2.3 considers musculoskeletal capacity. That section provides:

“12.2.3. Musculoskeletal capacity

An assessment of locomotor function should be aligned with the specific inherent job requirements and job demands of the worker’s role, as described by the rail operator in the request for health assessment (refer to Section 6.6.3. Musculoskeletal requirements). It will generally involve assessment of the following:

•  gait—the ability to walk on flat and uneven surfaces;

•  spine—the strength and range of movement of the cervical and lumbosacral spine;

•  limbs—the power and range of movement of the upper and lower limbs;

•  pain—the presence of musculoskeletal pain that may impede movement and its adequacy of treatment; and

•  balance—the person’s sense of balance, which may be assessed using the Romberg test.” 17

[16] Section 19.3 addresses musculoskeletal conditions. Section 19.3.2 contains essentially the same material as is found at section 6.6.3 of the Standard. It relevantly states:

“19.3.2. Risk assessment of Safety Critical Workers

It is not possible to make generic statements regarding the musculoskeletal capacity required for Safety Critical Work because the nature of such work can vary widely. All jobs, whether Category 1 or Category 2, need to be assessed regarding their inherent requirements and hence the necessary musculoskeletal capacities to do them. Most Category 1 Safety Critical Workers require soundness of limbs, neck, back and good balance. For example:

…

•  tram driving requires good musculoskeletal capacity to

- sit for long periods

- operate master control

- board and alight from tram for operational purposes including emergency situations”  18

[17] Section 19.3.3 provides:

“19.3.3. General assessment and management guidelines

The aim the health assessment is to detect those Safety Critical Workers who may have difficulty in performing their duties due to a musculoskeletal condition, or who may be at increased risk of injury, and to identify those workers who would benefit from job modification. The assessment should therefore be tailored to the risk assessment as per above.

The examining doctor should take a thorough history, noting information such as:

•  the person’s day-to-day functional capacity

•  performance in other roles

•  history of injuries, the circumstances of any injuries, their severity and recovery time

•  exacerbating and relieving factors.

The examination should evaluate the following in regard to the anticipated tasks as per risk assessment for the job:

•  gait—the ability to walk on flat and uneven surfaces

•  spine—the strength and range of movement of the cervical and lumbar–sacral spine

•  limbs—the power and range of movement of the upper and lower limbs

•  pain—the presence of musculoskeletal pain that may impede movement and its adequacy of treatment

•  balance—the person’s sense of balance, which may be assessed using the Romberg test.

In some cases, the treating doctor may also be contacted to discuss the worker’s condition and fitness.

The clinical examination may need to be supplemented by a functional assessment or practical demonstration that the worker can meet particular requirements (refer to Section 5.2.4. Functional and practical assessments). Such practical assessment tasks (PATs) cannot override the medical standards, they can only supplement the doctor’s decision about the ability to perform rail safety tasks where the Standard is imprecise.” 19

[18] The medical criteria for Safety Critical Workers with musculoskeletal disorders is found in Table 24 and is set out below: 20

[19] Applying the Standard to the assessment of the capacity of a rail safety worker with a musculoskeletal condition seems to me to involve a three stage process. First, as set out in section 19.3.3 of the Standard, the health assessment that is to be undertaken is to be tailored to the risk assessment as set out in section 19.3.2. In conducting a health assessment, the examining doctor should take a thorough history and evaluate the worker’s gait, spine, limbs, pain and balance having regard to the anticipated tasks inherent in the worker’s job. The examination may be supplemented by a functional assessment or practical demonstration that the worker can meet particular requirements.

[20] Secondly, the assessment must consider whether the medical criteria for a Safety Critical Worker with a musculoskeletal disorder is met. This is set out in Table 24 of the Standard and relevantly provides that a person is not Fit for Duty Unconditional, if a lack of range of movement, pain, weakness, instability or other impairment from a musculoskeletal condition results in either an:

•  inability to perform the inherent job requirements of the rail safety work in question; or

•  increased risk of exacerbation of a pre-existing injury.

[21] Thus, there are two distinct circumstances in which a rail safety worker with a musculoskeletal condition would not be Fit for Duty Unconditional, though these may overlap in a given case. A relevant rail safety worker with a musculoskeletal condition will not be Fit for Duty Unconditional if, as a result of the condition, he or she is unable to perform the inherent requirements of the worker’s rail safety work. Alternatively, a rail safety worker whose musculoskeletal condition does not result in an inability to perform the inherent requirements of the relevant rail safety work may nevertheless not be Fit for Duty Unconditional if the condition results in an increased risk of exacerbation of a pre-existing injury.

[22] The second circumstance relates to “an increased risk of exacerbation” of a pre-existing injury. It seems therefore that as a consequence of a musculoskeletal condition there is inherently a risk of an exacerbation of a pre-existing injury. The circumstance is not concerned with risk of exacerbation per se, but rather an “increased risk” of exacerbation. That is, an increase to the risk already present.

[23] Thirdly, following the assessment, the worker’s fitness for duty must be classified in accordance with the Standard reporting framework set out in section 5.4 of the Standard.

[24] For present purposes, once the Applicant had been assessed as not meeting the criteria in Table 24, that is, he was not a person who was Fit for Duty Unconditional, there were four relevant classifications which could have applied. These were as earlier described in sections 5.4.2, 5.4.4, 5.4.5 and 5.4.6.

[25] In this case the Applicant was classified as Permanently Unfit for Duty as described in section 5.4.6. For convenience, the text of section 5.4.6 is reproduced here:

“5.4.6. Permanently Unfit for Duty

This indicates that the worker does not meet the criteria for Fit for Duty Unconditional or Fit for Duty Subject to Review (or any other conditional category). Their condition is permanent (defined as unfit for 12 months or more) and they will not be able to perform current rail safety duties in the foreseeable future. Normal company policies such as redeployment may be considered.” 21

[26] The parties did not make any submissions as to the proper construction of section 5.4.6. It seems to me that the section is capable of at least two constructions which would result in a different outcome.

[27] The first sentence is uncontroversial. It is a precondition for a worker to be classified as Permanently Unfit for Duty that the worker does not meet criteria for Fit for Duty Unconditional or Fit for Duty Subject to Review or any other conditional category.

[28] The second sentence has two elements. First, the condition must be permanent. Secondly, the worker will not be able to perform current rail safety duties in the foreseeable future. “Permanent” is defined by the words in brackets which immediately follow and provide that permanent is “defined as unfit for 12 months or more”. Assuming the reference to “unfit” is intended to convey a meaning that the worker is unfit for duty, then on one view their condition is only permanent if at the time that the classification is made, the worker has been unfit for duty for at least 12 months or more. This is a backward looking assessment and is plainly readily verifiable. The backward looking nature of the first element of the assessment finds support from the words that follow as to the capacity of the worker to perform current rail safety duties in the “foreseeable future”. If that be right then the classification of Permanently Unfit for Duty may only be given in respect of a worker with a musculoskeletal condition if at the date of the classification:

•  the worker does not meet the criteria for Fit for Duty Unconditional as set out in Table 24 (or one of the other conditional categories);

•  that unfitness has existed for 12 months or more; and

•  the worker will not be able to perform current rail safety duties in the foreseeable future.

[29] The alternative construction is that the assessment of the condition is permanent is made by reference to a current and forward looking assessment, that is, it will continue for 12 months or more, and beyond that period the worker would not be able to perform current rail safety duties in the foreseeable future.

[30] This latter construction seems to be the construction that the Respondent applies as is evident by the summary of the classification set out in its Rail Safety Worker Health Assessment Category 1, 2, and 3 Request and Report Form. That form provides the following:

“Permanently Unfit for Duty – does not meet the medical criteria for current duties and cannot perform these duties in the foreseeable future (>12 months).” 22

[31] Ultimately, for reasons that will become apparent later, it is unnecessary for me to resolve this issue, although for my own part I consider that the better view is the first construction. To avoid confusion and the prospect of future misapplication, the Respondent may wish to make representations to relevant authorities to clarify the scope of the classification of Permanently Unfit for Duty in section 5.4.6 of the Standard. In arriving at my conclusion, in the absence of argument about the proper construction of section 5.4.6 of the Standard, I have applied the second construction in my assessment of the medical evidence as to the Applicant’s capacity as at 16 March 2018.

Applicant’s employment and relevant medical history

[32] As indicated earlier, the Applicant was employed by the Respondent and its predecessors from 1979 to 16 March 2018. The Applicant was advised of his dismissal by letter dated 16 March 2018 (Termination Letter). 23 The Termination Letter advised of the Respondent’s decision to terminate the Applicant’s employment on the basis that the Applicant was unable to perform the inherent requirements of his position. The Respondent informed the Applicant that he would receive five weeks pay in lieu of notice as well as any entitlements which may be due to him on termination.24 According to records provided by the Respondent, on the day prior to dismissal the Applicant had accumulated approximately 19.5 weeks of paid sick leave and approximately 12 weeks of other leave.25 There is no dispute that at the time of his dismissal, the Applicant was a Rail Safety Worker who was a Category 1 Safety Critical Worker.

[33] The medical history relevant to the Applicant’s dismissal commenced in 2010 when the Applicant was experiencing lower back pain and consulted his family doctor, Dr Minh Dzung Ho. 26 The Applicant says that at first the pain was mild and occasional and it was easy to manage the back issues with painkillers prescribed by Dr Ho.27 The Applicant began to experience more serious pain in the middle of 2017 and in July 2017 he took some sick leave supported by a medical certificate from Dr Ho.28

15 November 2017 medical assessment

[34] By letter dated 9 November 2017, the Applicant was directed by the Respondent to attend a triggered medical assessment to be conducted by Dr Stuart Turnbull on 15 November 2017 for the purpose of assessing the Applicant’s fitness for work and his ability to return to work. 29 At this stage, the Applicant was on personal leave and had not been cleared to return to work.30 The Applicant attended the assessment on 15 November 2017 which he says was conducted by Dr Turnbull31 and he says he was informed that he was “fit for work” but did not return to work as he had not been cleared to do so by Dr Ho.32 The Health Assessment Report of 15 November 2017 shows that the Applicant was assessed to be Temporarily Unfit for Duty and that he required treatment of medical condition with a review in three weeks.33 The Health Assessment Report was completed and signed by Dr Stephanie Dickinson and Dr Dickinson gave evidence that she completed the assessment.34 Further, Dr Dickinson says that there is no record of Dr Turnbull completing a health assessment for the Applicant.35 I accept that Dr Dickinson conducted the assessment. The weight of evidence supports that conclusion. The Health Assessment Report is signed by Dr Dickinson36 and it is most improbable Dr Dickinson would have signed a report about an assessment conducted by another practitioner. Dr Dickinson also gave cogent evidence about her recollection of the assessment.37 Dr Dickinson also consulted the records kept at the medical practice, and the records did not disclose the Applicant consulting Dr Turnbull or of Dr Turnbull completing a health assessment concerning the Applicant.38

[35] I accept that the Applicant has a firm conviction, reflected in his initial evidence and when recalled that he had consulted Dr Turnbull and not Dr Dickinson on 15 November 2017. 39 But that does not mean that the Applicant could not have been honestly mistaken as I think he was. The Applicant had not seen the Health Assessment Report signed by Dr Dickinson before his evidence on 20 September 2018.40 Apart from his recollection, the only document in the Applicant’s possession about the health assessment conducted on 15 November 2017 was the letter from the Respondent dated 9 November 2017 in which he was advised that his appointment would be with Dr Turnbull.41 The written assessment said by the Applicant to have been shown to him by Dr Turnbull on 15 November 201742 was not produced and Dr Dickinson’s evidence was that there is no record of any written assessment having been completed by Dr Turnbull for the Applicant.43

4 December 2017 functional assessment

[36] The Applicant was directed by the Respondent to attend a second health assessment on 4 December 2017, which was organised by Ms Deborah Kingdom (Employee Attendance Advisor). 44 Ms Kingdom gave evidence that she also requested a functional assessment to be undertaken to enable a more complete picture of the Applicant’s fitness.45 The Applicant was told by Dr Dickinson that he would be informed of the result of the assessment by his manager.46 The Applicant says he continued to consult Dr Ho, continued to exercise, go to the gym and use the spa as recommended.47 The functional assessment was conducted by Ms Sarah Furian48 and the report completed by Dr Dickinson on 14 December 2017 is said to be based on that functional assessment.49

[37] Ms Furian did not give evidence, but according to Dr Dickinson, Ms Furian is experienced at conducting functional assessments for the purposes of health assessments under the Standard. 50 It is apparent from the assessment prepared by Ms Furian that she had been provided with the details of the physical requirements of the tram driver position. The physical assessment undertaken appears to be directed to those requirements. The assessment identified weakness, instability, restricted range of movement in lumbar area, difficulty getting in and out of a chair, pain when making certain movements and when seated for an extended period. Ms Furian’s assessment concluded:

“Overall interpretation for functional assessment:

After assessing Chi's functional capacity and reviewing both his medical and injury history, it is apparent that he has a significant increased risk of injury in his position as a tram driver. Although he doesn't struggle to walk around, there are certain positions that he does deem to be quite difficult which could potentially have a negative impact on his position as a tram driver. His decreased balance and functional reach score indicated a high risk of falling, especially on uneven ground plus the sustained sitting was worrying as he did indicate each route could take up to 2 hours to complete.

Overall the main concerns are:

- Increased risk of falls

-Decreased balance

-Pain whilst in a seated position for long durations

- Potential decreased reaction time in emergency situations

It is recommended that Chi continues to see a physiotherapist to deal with the pain and to also increase his quality of life so he can continue to be independent in time to come. It is also recommended that he uses a lumbar support whilst in a seated position, especially if he continues to drive a tram as it could potentially alleviate pain whilst on a route.” 51

[38] It is to be observed that Ms Furian’s recommendation contemplates a return by the Applicant to tram driver duties and makes an adjustment recommendation in that event.

14 December 2017 – Dr Dickinson’s assessment

[39] Dr Dickinson said that she had made her final assessment on 14 December 2017 that the Applicant was “Permanently Unfit for Duty” after a discussion with Dr Turnbull, who was her senior. 52 As earlier noted, this was completed taking into account Ms Furian’s earlier functional assessment.

[40] The evidence from Dr Dickinson about the manner and circumstances in which she came to conclude that the Applicant was Permanently Unfit for Duty as a tram driver, is to say the least, unsatisfactory. This is all the more so given the potential consequences of that conclusion upon the career of a man who for nearly four decades had served as a tram driver.

[41] During cross examination, Dr Dickinson gave the following evidence:

“PN1109

And you knew that he had a very specific kind of condition; correct?---Correct.

PN1110

That could be dealt with by, for example, a rheumatologist.  I'm just giving one example.  There's probably other specialties that deal with it that are better than that; correct?---But I'm not the treating doctor.  I'm the assessing doctor.

PN1111

I'm not asking you that question.  I'm asking you, you were aware that there were other specialists who were better placed to assess his condition at the time?  Sorry, there are specialists who were better placed to assess his condition at the time; correct?---Yes.

PN1112

You took no step to refer him to a specialist, did you?---No, I don't refer to treating doctors as the assessing doctor.

PN1113

You didn't contact his general practitioner and have a conversation with his general practitioner about the condition?---No.

PN1114

And you wrote on the form something that would suggest that he could get treatment within three weeks?---No, it was to be reviewed in three weeks, not that he could get treated in three weeks.

PN1115

What was the point of reviewing it in three weeks and putting the words, "requires treatment of medical condition" before those words?---To see if there had been any change after he'd been reviewed by his GP.

PN1116

You didn't say "requires review by a GP", you wrote "requires treatment of medical condition".  Quite different; correct?---Possibly.

PN1117

Now you said something interesting in the course of your evidence about 4 December, and I think you repeated it a moment ago when I asked you a question.  Did you see Mr Nguyen on 4 December or not?---I don't know.

PN1118

I see.  Yet you're so sure that you saw him on 15 December?

PN1119

THE DEPUTY PRESIDENT:  November.

PN1120

MR REITANO:  15 November?---November.  Yes.

PN1121

Is it possible that you made a mistake, and that what happened was you saw him on 4 December and you didn't see him on 15 November?---No.

PN1122

And that that mistake has translated itself through the various pieces of paper that have been generated that we've seen here?---No.

PN1123

So you say, and you tell me if this is right, on 14 December on the basis of a consultation that you don't remember on 4 December you assessed this man as permanently incapacitated for work?---Sorry, can you repeat those dates again?

PN1124

You say that on basis of a consultation – sorry, on 14 December you say on the basis of a consultation that you don't remember on 4 December you assessed this  man as permanently incapacitated for work?---No, I think the dates are that – no, I know the dates are that I saw Mr Nguyen on 15 November.  I have notes in his medical records that guarantee that I saw him on 15 November.  He attended on 4 December and had a functional assessment with Sarah Furian, the exercise physiologist.

PN1125

Yes?---And at some later date when the exercise physiologists report had been written and completed then I made an assessment.

PN1126

So review in three weeks doesn't mean you reviewing him in three weeks?---Yes, it does.

PN1127

Right?---That's what I intended it to mean.

PN1128

You say that you have no recollection of a consultation on 4 December when you decided that this man, who had been employed for 40 years, was permanently incapacitated for work?---I intended it to be a review with me in three weeks, but Yarra Trams did not book him in for an appointment with me in three weeks.  They booked him in for a functional assessment with an exercise physiologist.

PN1129

Presumably then on 14 December you were able to say, well, I need to review this man, if it didn't occur on 4 December; correct?---No, that's up to Yarra Trams.

PN1130

You conducted no assessment, is that what you're telling his Honour, on 4 December?---I'm unsure whether I saw him.  It was not for a booked in assessment, because Yarra Trams did not book him in for an assessment with me as a booked in assessment.

PN1131

What you've done is you've made a mistake and you filled out a form that had the date, 15 November, on it rather than 4 December; correct?---No, that's incorrect.

PN1132

Are you in the habit of conducting assessments by not having assessments?---I'm unsure of what you mean by that.

PN1133

You say on 4 December that there was no assessment conducted yet on 14 December you assessed him as permanently unfit?---No, I'm saying that on 15 November Mr Nguyen had a combined periodic and triggered medical with me.  In December he had a functional assessment with the exercise physiologist.  When the exercise physiologist had completed her report then I made the final assessment after discussion with Dr Stuart Turnbull, who is my senior, that Mr Nguyen was permanently unfit.  That is the timeline.

PN1134

You said that you were going to conduct a review of him in three weeks?---I said to Yarra Trams that I wanted to see him in three weeks.

PN1135

You didn't do that, did you?---Yarra Trams did not book him in for an appointment.

PN1136

I'm not concerned about what Yarra Trams did or didn't, I'm asking you what you did.  You didn't do that, did you?---I reviewed the functional assessments.

PN1137

You didn't conduct a review as was contemplated by the form that you filled in, "Requires treatment of medical condition, review in three weeks", did you?  Correct?---Well, I'm unsure whether I saw him after the functional assessment or not.

PN1138

You - - -?---I don't recollect.

PN1139

The reason - - -?---As you say, I've seen so many rail workers, I can't recall.

PN1140

Yes.  And you saw Mr Nguyen not on 15 November, but on 4 December?---I most definitely saw Mr Nguyen on 15 November.  I have the notes in his records to prove it.

PN1141

And the reason why you wanted to review him was that you wanted to make sure in any – you don't have notes for that, do you, of the review you conducted?---I don't have notes for me seeing him on 4 December, that's correct.

PN1142

And the reason why you don't is because you didn't see him.  Is that what you say?---I didn't see him formally in a formal assessment.

PN1143

You didn't conduct any assessment formal or informal, did you?---Sorry, was that a question?

PN1144

You didn't conduct any – yes, it was a question actually?---I thought it was rhetorical.

PN1145

You didn't conduct any assessment, did you, formal or informal; correct?---I reviewed – I didn't – I'm not sure whether I saw him on that day.  I've said that before, I'm not sure whether I saw him on that day.  I don't recall.

PN1146

THE DEPUTY PRESIDENT:  Dr Dickinson, presumably if you see five to 10 people a day there's a schedule of appointments which are determined in advance?---Yes.

PN1147

And how far in advance are you booked out?---Two to three weeks.

PN1148

So when you get a request that's dated 9 November, how do you fit someone in three or four days later?---Well, sometimes there's cancellations.

PN1149

All right?---I'm not involved in the booking process.

PN1150

What happens to this assessment form when you complete it?  What do you do with it?---It's sent back to Yarra Trams, but I'm not involved in that process.

PN1151

Do you know how it's sent back?---I believe it's emailed to the manager.

PN1152

And when you saw Mr Nguyen on 15 November, did you make notes?---Yes.

PN1153

Are they recorded on the computer?---On the computer system and on paper notes that have been scanned into the computer system.

PN1154

MR REITANO:  Could I ask you, the review that you intended to conduct was a medical review, wasn't it?---Yes, a triggered medical.

PN1155

No, no, the review that you say that you intended to conduct in three weeks' time after medical treatment - - -?---Yes.

PN1156

- - -was a medical review, wasn't it?---Yes.

PN1157

I just want to make it absolutely clear, you say you have no recollection of whether you did that medical review or not?---I intended it to be a triggered rail medical.

PN1158

I'm not asking you what you intended to do, I'm asking you whether on 4 December you have any recollection of conducting a medical review of Mr Nguyen?---No, I don't.

PN1159

Right.  And I'm suggesting to you that's because you didn't conduct one?---Well, I'm not sure

PN1160

You agree with the proposition that a functional assessment can't override the requirement for applying the medical criteria, don't you?---We often use functional assessments in conjunction with a medical.

PN1161

Do you agree with the proposition that a functional assessment cannot override the requirement to apply the medical criteria in such an assessment?---No, it can't override it.

PN1162

So if you didn't see Mr Nguyen, on your evidence, between 15 November and 14 December, there was no medical criteria that you could rely on to come to the conclusion that he was permanently incapacitated; correct?---I don't agree.

PN1163

So you were just wasting time suggesting that there should be a review in three weeks' time on 15 November?---But he still had functional limitations at that time.

PN1164

When you assessed him on 15 November your assessment was that he required a review (medical review) in three weeks' time; correct?---Correct.

PN1165

The purpose of that review was to determine whether he was fit for duty, temporarily unfit for duty, et cetera, et cetera; correct?---Yes.

PN1166

If you had not conducted a medical review after 15 November then there was nothing that had changed since 15 November that would've meant that he would be in some different category?---Sorry, can you repeat the question?

PN1167

So no 15 November you say you saw him on your evidence?---Yes, I - - -

PN1168

And you assessed him as temporarily unfit, to be reviewed in three weeks; correct?---Yes.

PN1169

Following treatment.  And we've been through that as well.  If you did not conduct any medical review after 15 November you could not apply the medical criteria to determine that he was permanently incapacitated for work; correct?---No, because part of the medical criteria is the functional abilities, and his functional abilities were tested during the functional assessment.

PN1170

The test that you say you conducted on the 15th, the medical test that you say you applied on 15 November, led you to conclude that it was appropriate to review the situation following treatment in three weeks' time; correct?---Correct.

PN1171

The functional assessment could not override that medical criteria; correct?---The functional assessment can give information about his functional ability and that's what's important - - -

PN1172

Absolutely - - -?--- - - -for assessing his ability to perform his role.

PN1173

The functional assessment could not override the application of the medical criteria; correct?---I guess so.

PN1174

Thank you.  That's what the standard says.  That's where I'm reading the words from?---Okay.

PN1175

So if you didn't conduct any medical review after 15 November, there was no basis on medical grounds that you could come to the conclusion that he was permanently incapacitated; correct?---Yes.

PN1176

Do I take it you agree with my proposition when you say yes?---Yes.” 53

[42] From Dr Dickinson’s evidence the following may be concluded:

•  Dr Dickinson examined the Applicant on 15 November 2017 following which she assessed the Applicant as Temporarily Unfit for Duty, that he requires treatment of a medical condition and that he is to be reviewed in three weeks; 54

the review that was to be conducted in three weeks of the Applicant was intended to be a medical review, that is, one in which Dr Dickinson participated with the Applicant;

Dr Dickinson expected the Respondent to arrange an appointment for the medical review of the Applicant;

an appointment for a medical review by Dr Dickinson was not made;

•  Dr Dickinson did not conduct a medical review of the Applicant;

•  the Applicant attended for a functional assessment conducted by Ms Furian, an exercise physiologist;

•  the functional assessment was provided to Dr Dickinson;

•  functional assessments are often used in conjunction with a medical for the purposes of assessing the fitness of workers;

•  a functional assessment does not override a requirement to apply medical criteria to an assessment whether a worker is temporarily or permanently unfit for duty;

•  on 14 December 2017, Dr Dickinson concluded that the Applicant was Permanently Unfit for Duty, meaning that the Applicant did not meet the medical criteria for current duties and cannot perform these duties in the foreseeable future, that is, greater than 12 months;

•  this conclusion was reached by Dr Dickinson after reviewing the functional assessment and consulting with Dr Turnbull but without conducting a medical review as foreshadowed in her earlier assessment made on 15 November 2017; and

•  Dr Dickinson agreed that as she did not conduct a medical review after 15 November 2017 there was no basis on medical grounds for Dr Dickinson to come to the conclusion that the Applicant was permanently incapacitated.

[43] Dr Turnbull was not called to give evidence.

16 January 2018 meeting

[44] On 16 January 2018, the Applicant attended a meeting with the Respondent supported by Mr John Anderson of the Australian Rail Tram and Bus Industry Union (RTBU). The Respondent was represented by Mr Victor Foudoulis (Manager of Lines – Brunswick & Essendon) and Ms Kingdom. 55 The Applicant was informed that the result of the 14 December 2017 health assessment was that he had been assessed as Permanently Unfit for Dork as a tram driver.56 Mr Anderson suggested that given the contradictory opinions, a further assessment should be conducted.57 Ms Kingdom agreed to arrange an appointment for his fitness to be reviewed by another doctor.58 Ms Kingdom gave evidence that during the meeting neither herself nor Mr Foudoulis requested that the Applicant obtain a report from his specialist.59

[45] At the meeting the Applicant provided the Respondent with a letter from Dr Ho dated 12 January 2018 which relevantly includes:

“…Mr Nguyen has been in my care since 27 September 2010…

During the course of providing medical treatments, prescribing medications, one of (sic) main medical conditions he has is lower back pain. Mr Nguyen occasionally experience (sic) lower back pain since 2010. After several medical X-Ray and MRI for his spine, the result concludes that “there’s multilevel degenerative changes noted within the lumbar spine.” This lower back pain is due to sitting long hours during the day.

In addition, there is moderate canal stenosis L3/L4. He is currently taking medications such as Panadol and Lyrica 75mg for his lower back pain.

He was refer (sic) to a specialist and was advised to incorporate hydrotherapy into his daily routine such as going to the sauna and spa or attending physiotherapy, which involves body movement exercises instructed by an instructor at a public gymnasium or get regular massage.

In the long term with medical treatments and regular hydrotherapy along with physiotherapy appointments will help reduce the pain in his lower back.

In the meantime, it is strongly advised that he take sick leave when he experience severs (sic) lower back pain and return to work when he feels better…” 60

24 January 2018 medical assessment

[46] On 24 January 2018, the Applicant attended a third health assessment which was conducted by Dr Khayyam Altaf. 61 Dr Altaf assessed the Applicant Temporarily Unfit for Duty, recommended neurosurgical assessment for further management and a review in three months.62 Ms Kingdom agreed that at this stage the Applicant had sufficient leave to carry the Applicant through for the three months suggested by Dr Altaf.63 Later in her evidence Ms Kingdom appeared to be a little more uncertain.64 Mr Foudoulis gave evidence that he did not at any stage prior to 16 March 2018 make any enquiries about how much sick leave the Applicant had.65 In any event, it is not controversial that the Applicant had sufficient accumulated leave entitlements. The quantum of these as at the date of dismissal has been earlier set out.

[47] Dr Altaf was not called to give evidence.

Dr McCartney’s review and subsequent events

[48] The Applicant was directed to attend a meeting on 14 February 2018. He attended with his son Mr Martin Nguyen and Mr John Gunn (delegate of the RTBU). Also in attendance were Mr Foudoulis and Ms Kingdom. 66 At the meeting, the Applicant was advised that he was assessed as Temporarily Unfit for Duty by Dr Altaf and that Dr Robert McCartney (Chief Medical Officer of Yarra Trams) reviewed the assessments (of Drs Dickinson and Altaf) and had determined that he was Permanently Unfit for Duty.67 The Applicant says that he had never been examined by Dr McCartney and had never even met him.68 Dr McCartney’s opinion is evidenced in an email he sent to Ms Kingdom.69 Dr McCartney indicates in that email that he would be happy to review “if the driver has any medical evidence or specialist opinion that can prove he will be fit with appropriate treatment.” Dr McCartney gave evidence that he gave his opinion based on the information provided and did not ask Dr Altaf, Dr Dickinson or Dr Ho for further information.70 Dr McCartney did not examine the Applicant. Dr McCartney explained that he agreed with Dr Dickinson’s assessment that the Applicant was Permanently Unfit for Duty. He said he preferred that assessment to Dr Altaf’s view that the Applicant was temporarily unfit. Dr McCartney explained his reasoning as follows:

“---I would - in understanding the definitions under the standards, we have to make a determination on someone's fitness, that is able to do the job and able to do it without a risk of exacerbation of their underlying condition, and then so that was a - I think everyone was agreeing on that.  Then it was just a matter of timeframes.  It was my opinion that there'd be no intervention that would alter that in the next 12 months and therefore I agreed - - -” 71

[49] Dr McCartney had earlier explained that on 24 January 2018 he had received an email from Dr Altaf asking Dr McCartney to review his assessment of the fitness of the Applicant. 72 Dr McCartney said that he had been provided with Dr Altaf’s assessment, the earlier assessment prepared by Dr Dickinson, the results of a functional assessment conducted in December 2017 and a letter from Dr Ho dated 12 January 2018.73 The text of Dr Ho’s letter has been earlier set out. Dr Dickinson and Dr Altaf agreed that the Applicant was not fit to perform his role as a tram driver at the time of their respective assessments. Dr McCartney’s evidence was that the area of disagreement as between Drs Dickinson and Altaf concerned whether it was possible that the Applicant’s condition could be adequately treated.74

[50] As already noted, Dr McCartney preferred the assessment of Dr Dickinson. Dr McCartney gave evidence that he considered it was highly unlikely that any further treatment will result in sufficient functional restoration to enable the Applicant to perform the inherent requirements of his role without risk of exacerbating his condition. 75 He gave reasons for his view as follows:

“(a) That Mr Nguyen was 73 years of age. At that age, the human body, and chronic conditions such as that suffered by Mr Nguyen, tend not to improve. In my many years of experience, I have not observed a patient with Mr Nguyen's clinical history (suffering for so long from this particular degenerative spinal condition at his age) improve over time. The natural course of the condition is one of general deterioration as the condition progresses. What usually happens is that functional capacity decreases over time. While exercise and activity can improve symptoms and restore some function for some patients, it does not change the underlying condition or the risk of developing sudden acute debilitating back pain.

(b) That Mr Nguyen had required strong medication for many years. In those circumstances I considered it unlikely that his condition, or the symptoms associated with it, would improve.

(c) Tram driving involves being in a seated position for long periods of time and there can be jolting, jarring and heavy vibration, all of which when in a seated position increase risk of aggravating a back condition or developing back pain. If Mr Nguyen needed to assist either himself or passengers to evacuate a tram in an emergency situation, this would give rise to a further risk of aggravating his underlying back condition.” 76

[51] Dr McCartney’s opinion was communicated by email to Ms Kingdom on 8 February 2018. The opinion was as follows:

“Opinion

This fellow is not currently fit to safely work as a Tram Driver.

His musculoskeletal condition (causing lack of range of movement, pain, weakness, instability or another impairment) results in:

•  An inability to perform the inherent job requirements of a Tram Driver

•  An increased risk of exacerbation of a pre-existing injury.

He could be determined to be Fit for Duty Subject to Review if the condition can be adequately treated and function can be restored.

It is on this possibility that the AHPs appear to disagree.

It is my opinion that, given the nature of this fellow's spinal condition and his age, it is very unlikely that further treatment will result in sufficient functional restoration where the Tram Driver will be able to perform the inherent job requirements without an increased risk of exacerbation of a his pre-existing condition.

Further, he is very unlikley (sic) to be able to perform the duties safely and effectively in the next 12 months.

As such, I agree with the first AHPs opinion.

However, if the driver has any medical evidence or specialist opinion that can prove he will be fit with appropriate treatment, I am happy to review.

Please do not hesitate to contact me at anytime to discuss.” 77

[52] A number of things may be observed about Dr McCartney’s assessment and his evidence about it. First and most obvious is that it was conducted on the basis of a paper review. That is, his assessment consisted of reviewing the assessments made earlier by Drs Dickinson and Altaf, the functional assessment prepared by Ms Furian, and some relevant medical history provided by Doctor Ho.

[53] When making his assessment, Dr McCartney appears to have considered that the Applicant’s musculoskeletal condition which caused a “lack of range of movement, pain, weakness, instability or another impairment” resulted in an inability to perform the inherent job requirements of a tram driver and an increased risk of an exacerbation of a pre-existing injury. 78 The observations about pain, weakness, instability and a lack of range of movements may appear to have been discerned from the functional assessment conducted by Ms Furian, although it seems just as likely that he was merely reciting that which appears in Table 24 of the Standard, which is earlier reproduced and which relevantly provides that a person is not Fit for Duty Unconditional if “lack of range of movement, pain, weakness, instability or another impairment” from a musculoskeletal condition results . . .”. I consider it is the latter particularly given the reference to “another impairment” in both the opinion and in Table 24 of the Standard.

[54] Secondly, Dr McCartney posits in his opinion that the Applicant “could be determined to be Fit for Duty Subject to Review if the condition can be adequately treated and function can be restored” 79 and observes that it is on “this possibility that the AHPs appear to disagree”.80 This observation can only have been sensibly made by inference since Dr Dickinson’s written assessment contains no reasons. Dr Altaf’s summary of the reasons set out in his email to Dr McCartney of 24 January 2018 seems also to be made by inference taken from that which appears, not in Dr Dickinson’s assessment but, in the functional assessment.81 Only Dr Altaf’s reasons for his assessment are known and are set out in the email to which reference has just been made. Dr McCartney did not, as already noted, speak with either of Drs Dickinson or Altaf.

[55] Thirdly, Dr McCartney agreed that Dr Altaf’s opinion was within the reasonable range of options that were available and would not discredit his opinion. 82 Dr McCartney’s evidence was also that he did not rule out the possibility that the treatment might assist the Applicant.83 This possibility is also noted in his written opinion.84

[56] Fourthly, Dr McCartney’s evidence was that the reason he had set out in his opinion that if the Applicant had any medical evidence or specialist opinion that could prove he was fit with appropriate treatment that he would be happy to review his assessment, was because he was making his assessment or basing his opinion on the limited information he had to hand. 85 Dr McCartney did not ask Dr Altaf nor Dr Dickinson nor Dr Ho for any further information and he did not take a history from the Applicant.86

[57] Fifthly, Dr McCartney’s evidence was that in providing his opinion it was not his role to “provide an AHP opinion”. 87 Ultimately, Dr McCartney’s preference for Dr Dickinson’s assessment was that he considered that there would be no intervention over the next 12 months which would alter the fact that the Applicant was unable to do his job without risk of exacerbating the underlying musculoskeletal condition.88

[58] Sixthly, when Dr McCartney provided his opinion he could not have known that Dr Dickinson had not conducted a medical review after giving her first opinion on 15 November 2017 or that Dr Dickinson accepts that there were no medical grounds for coming to her conclusion in the assessment of 14 December 2017.

[59] The Applicant was given 7 days to obtain a specialist report for Dr McCartney to reconsider and a further meeting was arranged for 22 February 2018. 89

[60] Following the meeting of 14 February 2018, the Applicant provided a medical certificate from Dr Ho stating that he was unfit for work from 11 February 2018 to 17 March 2018. 90 By letter dated 21 February 2018, the Applicant was informed by Mr Foudoulis that he had until 1 March 2018 to provide any further information to Dr McCartney for review and if nothing is provided then a decision will be made on his employment with the information already on hand.91

[61] On 26 February 2018, the Applicant by email to Mr Foudoulis explained that Dr Ho has referred him to a specialist and he will be attending an appointment with the specialist on 1 March 2018. 92 Further, the Applicant said that he would submit the medical report “straight away”.93 On 5 March 2018, the Applicant sent a medical certificate from Dr Frank Laska (Consultant Physician & Rheumatologist) dated 1 March 2018 to Mr Foudoulis which advised of the Applicant’s attendance at a specialist consultation with Dr Laska on that day.94

[62] No further correspondence was received from the Applicant and the Respondent did not receive any report from Dr Laska prior to dismissing the Applicant on 16 March 2018. 95 Mr Foudoulis says that he did not think that he needed to enquire with the Applicant or Dr Laska as to the whereabouts of the specialist report, and he did not do so.96

[63] From the foregoing, it is apparent that as at the date of the Applicant’s dismissal, the Applicant was absent on a period of sick leave supported by a medical certificate. He had available further accumulated leave. At the time of his dismissal the Applicant had an accumulated entitlement of 19.5 weeks of paid sick leave 97 and a further period of about 12 weeks of other forms of paid leave.98 The Applicant was not claiming that he was fit to resume work or seeking to resume work as at 16 March 2018. The Respondent did not make any enquiries about how much accumulated leave the Applicant had or whether he intended to take any or all of the accumulated leave during his period of incapacity. The Respondent had conflicting assessments by Dr Dickinson and Dr Altaf as to whether the Applicant was temporarily or permanently unfit for duty. Dr McCartney preferred and agreed with Dr Dickinson’s assessment. Dr Dickinson’s assessment was not based on medical grounds and she did not conduct a medical review of the Applicant before making her assessment, though she had intended that this would occur. The Applicant was given a short period of seven days during the meeting on 14 February 2018 in which to obtain a specialist report for Dr McCartney to reconsider his assessment. The Applicant consulted Dr Laska on 1 March 2018 and the Respondent was aware that the consultation had occurred. The Respondent made no enquiries as to whether there would be a report from Dr Laska forthcoming before dismissing the Applicant.

Dr Laska’s assessment – 1 March 2018

[64] The Applicant received a letter from Dr Ho dated 12 April 2018 and the report from Dr Laska dated 1 March 2018. 99 The assessment of Dr Laska was as follows:

“ASSESSMENT: Mr Nguyen has significant degenerative spondylosis and as they have pointed out there is technical canal stenosis but there is no relative compromise to neural elements either in the central canal or in the lateral recesses. His postural supports remain inadequate despite a fairly impressive endeavour in attending gymnasium. Therefore, it should be possible to improve matters by structuring a more sophisticated and appropriately relevant programme of resistance exercise to rebuild postural controls. I've therefore given Mr Nguyen an outline of the types of exercise that his Physiotherapist or preferably Exercise Physiologist should consider. Along the way, it would be valuable to add low-dose Mobic since he finds this most useful but on regular rather than episodic basis. Perhaps you could start with 7.5mg daily and if necessary increase to the full-strength. As strength increases there may be opportunity to remove this agent. However as you will be aware one needs to watch very carefully his gastrointestinal, renal and blood pressure factors. If it is difficult in the current circumstance where he already has membership, he may consider changing later to 1 of the Kieser facilities where he has access to both physiotherapy/exercise physiology supervisors directly in the gym.” 100

[65] Dr Laska’s assessment was based on an examination of the Applicant on 1 March 2018, some two weeks prior to the Applicant’s dismissal. Dr Laska sent his report to Dr Ho by facsimile transmission on 5 March 2018. According to the Applicant’s uncontested evidence which I accept, he did not receive a copy of the report until 12 April 2018. The Applicant explained the delay as follows:

“On 7 March 2018, I went to see Dr Ho. Dr Ho told me that Dr Laska had written a letter to him about my examination. I asked whether I could send this letter to Yarra Trams. Dr Ho told me that the letter was sent to him and that Dr Laska had not authorised it to be sent to others. He said that he would have to get consent from Dr Laska.” 101

[66] Dr Laska’s report is relevant and admissible for the purposes of assessing whether at the time of the dismissal the Respondent had a valid reason related to the Applicant’s capacity. The report was prepared before the dismissal based on assessment of the Applicant’s capacity almost 2 weeks before the dismissal was effected.

[67] The effect of Dr Laska’s report was that he considered the Applicant as at 1 March 2018 to be temporarily unfit for work subject to review. Although this is not expressly stated in the 1 March 2018 report, Dr Laska explained this during his evidence as follows:

“…At the initial assessment, the basis was that the man had discomfort and, therefore, was asked by his GP to rest, which didn't actually achieve much.  However, because of the capacity to improve matters, I considered it likely that we would be able to improve Mr Nguyen to the point that he could return to tram driving which was his wish.  Hence, I thought there was enough potential, so, okay, temporarily, you can consider this man impaired and, therefore, unfit for duties, but not totally.” 102

[68] In essence, it appears that Dr Laska considered that the Applicant’s capacity could improve and would likely improve through the regime of exercise and medication prescribed to the point where the Applicant could return to tram driving duties.

[69] Dr McCartney had the opportunity of reviewing Dr Laska’s report but considered that it would not have caused him to revise his opinion expressed on 8 February 2018. Dr McCartney explained that this was so because:

“…In my area of speciality and my obligation to look - apply the standards for RailSafe work I have to make decisions with regards to whether an individual is fit to safely carry out those essential requirements, which includes able to do the work but also without a risk of exacerbation of a pre-existing underlying condition, in this case musculoskeletal.  My opinion remains from all the information available this particular person is at foreseeable and significant risk of aggravating their pre-existing underlying condition if they were to attempt to return to that particular job, and that risk hasn't changed and will probably worsen as time goes on.  There's nothing in the additional information that's been provided to me that alters that opinion.” 103

[70] The Applicant also sought to rely on medical reports obtained after his dismissal. I will later deal with the extent to which, if any, these reports may be relied upon in respect of the issues I need to consider. Presently, it is sufficient that I set out in summary form the substance of these reports.

Reports of Dr Gary Davison

[71] On 5 June 2018, the Applicant’s representatives wrote to Dr Gary Davison seeking to engage him to assess the Applicant and provide a report responding to specific questions. 104 Dr Davison provided three reports dated 14 June 2018,105 23 July 2018106 and 7 September 2018.107 Dr Davison gave evidence that he undertook an independent fitness for work assessment of the Applicant on 8 June 2018 and that was the only time he assessed the Applicant.108

[72] The report dated 14 June 2018 stated relevantly:

“CURRENT STATUS

Mr Nguyen reported the presence of intermittent pain occurring throughout the course of each day and affecting the central lower back region. The pain is generally present on waking. He does some stretching exercises to ease the discomfort. He said the symptoms generally tend to be better if he remains active…

…

ASSESSMENT: Responses to Specific Questions

1. Is Mr Nguyen presently capable of safely returning to full-time or part-time tram driving duties as a tram driver?

Clinical examination today revealed no abnormal function from a musculoskeletal perspective.

In particular, there was no obvious functional limitation in respect of the thoracolumbar spinal region. Mr Nguyen was able to display a good functional mobility in respect of the lower and upper limbs. Grip strength was considered to be within normal limits for the worker’s age.

I note the National Standards in regard to medical criteria for safety critical worker health assessments. In particular I refer to Section 19.3 Musculoskeletal Conditions and in respect of tram drivers I note that a worker is required to have “good musculoskeletal capacity to:

•  Sit for prolonged periods.

•  Operate a master control.

•  Board and alight from tram for operational purposes including emergency situations”.

I also note reference to the Standard in respect of Section 6.6.3 Musculoskeletal Requirements which were identical to those of Section 19.3.2.

I also note the training module for rolling stock produced by Yarra Trams. I note the various classes of trams and the inherent driving procedures and safety procedures required.

Clinical examination today failed to reveal any musculoskeletal condition that would prevent Mr Nguyen from fulfilling the listed “good musculoskeletal capacity” to work as a tram driver. I do note, however, that your client does have a longstanding lower back condition and there were some objective clinical signs today as detailed previously. The structural abnormalities, however, are not currently adversely impacting your client’s functional capacity from the perspective of the thoracolumbar spine.

I consider that your client should continue to undertake the exercise program in order to maintain good functional health of the thoracolumbar spine. A failure to do so may well result in a recurrence of symptoms and work incapacity.

2. If Mr Nguyen is not presently capable of safely returning to full-time tram driving duties, when, if at all, and subject to what treatment, if any, is he likely to be able to return to tram driving duties at any time in the future?

Not applicable.” 109

[73] In the report dated 23 July 2018, Dr Davison says:

“I consider that Mr Nguyen was temporarily unfit for employment because of those symptoms but there has been a substantial improvement in his condition as a result of the activity-based approach he has taken to his rehabilitation.

…

I undertook a one-off clinical fitness for work assessment of Mr Nguyen, not a functional assessment. I am not surprised that a functional capacity assessment undertaken in December 2017 at the time that Mr Nguyen’s symptoms were most severe, indicated an incapacity for his role. Mr Nguyen’s symptoms have changed substantially since that time, and I expect that an FCE performed now would reach a different conclusion. I would recommend therefore that the functional capacity evaluation be repeated and the results compared…

RESPONSE TO SPECIFIC QUESTION

•  You have asked me to specifically address the question of whether I consider that there is an increased risk of exacerbation of Mr Nguyen’s pre-existing condition if he works as a tram driver.

I indicated in my report that the issue of symptomatic exacerbation would depend upon Mr Nguyen’s continued undertaking of daily exercise.

Prolonged sitting in my opinion will not aggravate or exacerbate the underlying degenerative condition of which Mr Nguyen has radiological evidence of.

It must be noted that the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition 2014, have reviewed the epidemiological studies in respect of the issue of sitting and the causation of low back pain. I note the Guides’ findings as per page 212: “None of five prospective cohort studies found a statistically significant relationship between occupational sitting and low back pain. Erikson found sitting had no relationship to low back pain after a preliminary logistic regression analysis and therefore did not consider it specifically. One study used sitting as the reference for other activities and a third study reported no association although actual numbers were not provided. There is strong evidence that sitting at work is not associated with low back pain”.

I consider that it would be unreasonable not to undertake a repeat functional capacity evaluation of Mr Nguyen in view of his reported changed circumstances in the last six months. If a repeat functional capacity evaluation indicates an incapacity to undertake pre-injury duties I would endorse such a decision. However, based on my examination findings and the information which I had available to me at that time, I found no objective reason to preclude Mr Nguyen from undertaking his pre-injury duties as a tram driver subject, to an ongoing compliance with the exercise regime that he reported to me.” 110

[74] Further, in the report dated 7 September 2018, Dr Davison said:

“RESPONSE TO SPECIFIC QUESTION

•  On the basis of your assessment of Mr Nguyen on 08.06.2018, the documents enclosed, and the documents previously provided, please provide your opinion on which category in sections 5.4.1 to 5.4.6 of the National Standard reflects v Mr Nguyen's capacity to perform tram driving duties at the time of the termination of his employment on 16.03.2018.

I consider that Section 5.4.2 temporarily unfit for duty reflects Mr Nguyen’s capacity to perform tram driving duties at the time of his termination on 16.03.2018. Mr Nguyen’s subsequent progress has vindicated the opinion of his general practitioner, Dr Ho, and also Dr Altaf.

…

I confirm my opinion that it would be appropriate to repeat the functional capacity evaluation (preferably with the same assessor). If this indicates a fitness for work then it would be appropriate to undertake a trial of work (as is the case when initially certifying fitness/competency to drive a tram).” 111

[75] Section 5.4.2 of the Standard is earlier set out.

[76] Dr Davison says that although it is of concern that the Applicant is experiencing pain intermittently throughout the course of everyday, it has to be taken into account in the context of the person’s functional capacity. 112 Further, Dr Davison gave evidence that he knew that the Applicant had not worked as a tram driver for some period of time but did not give consideration to that in relation to its impact on the reduction in pain.113

Functional assessment of Joanna Falconer

[77] On 7 September 2018, Ms Joanna Falconer (Exercise Physiologist), performed a functional assessment of the Applicant following receipt of a letter of instruction with enclosures from the Applicant’s representatives on 6 September 2018. 114 Ms Falconer gave evidence that she has no background in relation to performing functional assessments under the Standard until conducting the assessment of the Applicant.115

[78] The overall conclusion of the functional assessment undertaken by Ms Falconer was as follows:

“Mr Nguyen achieved normative scores within his age group for majority of the tests carried out.

The tests he was not able to complete correctly (Rotary Stability and Stability push up) do not demonstrate a lack of ability to complete tram driving duties.” 116

Further Reports of Dr Frank Laska

[79] In a report dated 28 May 2018, Dr Laska said as follows:

“ASSESSMENT: At the present time, Mr Nguyen displays full functional capacity from rheumatological perspective to maintain control over his lower limbs and even mostly his lumbosacral spine. He is progressing well with the physical rehabilitation program that has been recommended and given that he has been away from work he has been super diligent in that apparently he has attended gymnasium on a daily basis though I had recommended 3 times per week would be sufficient.

Opinion on matters raised in your letter:

1. Is Mr Nguyen, having regard to your diagnosis in your previous report and your present diagnosis presently capable of safely returning to full-time or part time tram driving duties as a tram driver?

With respect to specifically the rheumatological aspects of Mr Nguyen's well-being, I have not found any contra indication for Mr Nguyen to return to tram driving on either full or part-time basis. It remains a recommendation that he maintains endeavour with his active supervised resistance exercise program to maintain this level of well-being as a minimum and if possible to achieve even further improvement. Basis for opinion takes into account the information conveyed to me by Mr Nguyen in respect to the technical aspects that are required to drive a modern tram, and repeat examination findings today which revealed no loss of physical functional capacity from musculoskeletal or the neuromuscular controls of the lower or upper limbs that would be required to maintain capacity to drive tram.

2. If Mr Nguyen is not presently capable of safely returning to full-time tram driving duties, when, if at all, and subject to what treatment, if any, is he likely to be able to return to tram driving duties at any time in the future?

Given my response to question 1, this question is not immediately applicable.” 117

[80] Dr Laska provided a further opinion in a report dated 3 September 2018:

“…I would consider that at the time of cessation of employment i.e. 16 March 2018 that I would have assessed Mr Nguyen to be temporarily unfit for duty subject to physical rehabilitation program and review or fit for alternative duties subject to job modification as I have previously indicated to you.

…

…There has not been further "functional assessment” as would have been required to enable Dr McCartney to come to a more appropriate assessment. It would therefore be appropriate to undertake functional assessment now in the same format that was carried out by the exercise physiologist to see whether the rehab programme performed by Mr Nguyen thus far has changed the outcome which was noted then.” 118

[81] In response to a question from Counsel during cross-examination, Dr Laska says that had he functionally assessed the Applicant on 1 March 2018 he would of formed the view he was temporarily unfit for work subject to review as there was capacity to improve matters and he considered it likely that they would be able to improve the Applicant to the point of returning to work. He therefore considered him temporarily impaired but not totally. 119 Dr Laska also gave evidence that when he saw the Applicant on 1 March 2018 he was not asked by either the Applicant or Dr Ho to complete the report urgently nor was there a request for a report.120

Admissibility issues

[82] The Respondent flagged an objection to much of the evidence of Dr Davison and Dr Laska. However, in order to permit the efficient conduct of the proceeding, and to allow the witnesses to give their oral evidence without delay, the evidence was received under cover of the Respondent's objection, with the Respondent's rights reserved to press its objections in final submissions. 121 The Respondent accepted that its objection would not necessarily mean that the evidence was irrelevant for all purposes.122 The principal basis of the objection concerns the admissibility and weight of medical opinions given after the date of dismissal and is in substance an objection to the admissibility and/or weight to be given to a medical opinion acquired after a dismissal for the purposes of determining whether there was at the time of the dismissal a valid reason for the dismissal related to the Applicant’s capacity.

[83] In Jetstar Airways Pty Limited v Monique Neeteson-Lemkes 123 a Full Bench of the Commission considered this issue and concluded as follows:

“…On one view, those post-dismissal expert op1n1ons, if accepted, would demonstrate that at the time of the dismissal Ms Neeteson-Lemkes did have a future capacity to return to her full role, and to that extent Jetstar did not have a valid reason to dismiss her based upon a prediction otherwise. However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal.” 124

[84] The decision in Jetstar was recently applied in Hyde v Serco Australia Pty Limited 125 wherein the Full Bench said:

“[64] As noted in Jetstar, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Applying this principle to the matter before us, Dr White’s evidence was correctly excluded from the assessment of whether there was a valid reason for Mr Hyde’s dismissal because it was clearly founded upon a factual situation which came into existence well after the date of Mr Hyde’s dismissal. Dr White examined Mr Hyde on 10 November 2017, some two months after his dismissal, and his evidence concerned Mr Hyde’s capacity as at 10 November 2017; not his capacity as at the date of his dismissal. The validity of that part of Serco’s reason for dismissal which concerned Mr Hyde’s future capacity to perform his duties must be assessed by reference to his state of health, and the expert opinions expressed as to his state of health, as they were at the time of his dismissal.

[65] Dr White’s evidence did not address the Appellant’s capacity at the time of dismissal and on that basis was not relevant to the determination of valid reason.

[66] Our conclusion is consistent with the approach taken in Jetstar, in which the Full Bench excluded expert medical evidence which was based on an assessment of the Respondent’s health some three to four months after her dismissal. We reject the Appellant’s submission that Jetstar was distinguishable on the basis that it concerned psychological injury as opposed to the present matter which concerns physical capacity. In our view the principle remains the same – the relevant evidence must be directed at the applicant’s state of health at the time of dismissal.

[67] We wish to make it clear that this does not mean that expert medical evidence obtained after dismissal is automatically excluded. Such evidence will be relevant to the question of whether there is a valid reason for dismissal provided it is directed at the appellant’s state of health at the time of dismissal. For example, in circumstances where an applicant’s state of health is stable, a medical expert may express an opinion about the applicant’s state of health at the time of their dismissal, which may have occurred some time before they were assessed by the expert. The probative value of such evidence will depend, in part, on the nature of the applicant’s condition and the time between dismissal and assessment.” 126 [Endnote omitted]

[85] It is apparent from the decision in Serco in its application of Jetstar that expert medical evidence obtained after a dismissal will not be relevant to the question whether there was a valid reason for dismissal relating to an employee’s capacity at the time of the employee’s dismissal if the evidence is not directed to the employee’s capacity at the time of the dismissal. Expert medical evidence obtained after the dismissal which is directed to the capacity of an employee at the time of his or her dismissal may be relevant and its probative value will depend on a range of considerations including the nature of the employee’s condition and the time between the dismissal and the assessment upon which the expert medical evidence or opinion is based.

[86] Dr Davison’s report of 7 September 2018 127 sets out that he has been provided with and read, inter alia, the relevant medical reports and related material in existence at the time of the Applicant’s dismissal concerning the Applicant’s capacity. The medical opinion expressed is responsive to the following question:

“On the basis of your assessment of Mr Nguyen on 08.06.2018, the documents enclosed, and the documents previously provided, please provide your opinion on which category in sections 5.4.1 to 5.4.6 of the National Standard reflects Mr Nguyen's capacity to perform tram driving duties at the time of the termination of his employment on 16.03.2018.” 128

[87] Noting that Dr Davison examined the Applicant on 8 June 2018, the expert opinion expressed in his report of 7 September 2018 is nonetheless referrable to the state of affairs that existed vis-a-vis the Applicant’s capacity as at the date of his dismissal. The opinion is given having regard to the material provided to Dr Davison by the Applicant’s solicitors. This included all of the material which Dr McCartney reviewed and on which he expressed his preference for Dr Dickinson’s assessment. In this respect, Dr Davison expresses an opinion as to the Applicant’s capacity as at 16 March 2018 on the basis of a paper review, in much the same way as did Dr McCartney. It is thus no less admissible albeit that Dr Davison’s opinion was given after the dismissal. It is admissible for the purposes of considering whether there was a valid reason related to the Applicant’s capacity. That the report was provided at a later stage to the Respondent and that the opinion expressed may be affected to some extent by hindsight, is not a reason to exclude the evidence but rather goes to the weight that might attach to his evidence. As already noted, Dr Davison conducted, in effect, a review of the medical opinions rendered by others based on the material provided to him, supplemented with his own examination of the Applicant on 8 June 2018. To the extent that Dr Davison’s conclusion is affected by his examination after the dismissal, this also goes to the question of the weight that is to be ascribed to his opinion.

[88] Dr Davison’s earlier opinions 129 appear not to be concerned with the Applicant’s capacity at the time of the dismissal but as to his fitness for work and as to the increased risk of an exacerbation of the Applicant’s pre-existing condition. Dr Davison’s opinions may however be relevant for other purposes, for example, considerations under s.387(h) of the Act and the question of remedy, in particular whether an order for reinstatement is inappropriate.

[89] Although Dr Laska examined the Applicant on 1 March 2018, his report of 28 May 2018 130 is responsive to the question whether the Applicant is “presently capable of safely returning to full-time or part-time tram driving duties as a tram driver”. The opinion is thus not referrable to the Applicant’s capacity as at the date of his dismissal. It provides no assistance in assessing whether there was a valid reason relating to the Applicant’s capacity as at the date of his dismissal. Dr Laska’s report of 10 July 2018131 is a critique of Dr McCartney’s statement. It is relevant for the purposes of assessing Dr McCartney’s evidence.

[90] As to Dr Laska’s report of 3 September 2018, 132 he expresses his medical opinion as to the Applicant’s capacity as at the date of his dismissal taking into account, inter alia, his examination of the Applicant on 1 March 2018 together with documents previously provided, which included the assessments that were available to the Respondent at the time of its decision to dismiss the Applicant. The opinion expressed in the 3 September 2018 report is referrable to the Applicant’s capacity as at the date of his dismissal, albeit also informed by the post-dismissal date assessment of the Applicant on 25 May 2018. It is relevant for the purpose of assessing whether there was a valid reason related to the Applicant’s capacity as at the date of the dismissal. The weight to be attributed to that report is of course affected by the fact that the opinion was informed by an assessment conducted approximately two months after the date of the dismissal and that in a report prepared by Dr Laska following his examination on 1 March 2018 he did not expressly proffer an opinion as to the Applicant’s capacity, that is, whether having regard to the Standard he was Temporarily or Permanently Unfit for Duty as a tram driver.

[91] Such of Dr Laska’s reports which are not relevant to the question of whether there was a valid reason may however be relevant for the purposes identified above in relation to Dr Davison’s reports.

[92] The functional assessment conducted by Ms Falconer is clearly not relevant to the Applicant’s capacity as at 16 March 2018. It may be relevant for other purposes including the question of remedy.

Was the dismissal of the Applicant unfair?

Whether the Applicant was protected from Unfair Dismissal

[93] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[94] Section 382 of the Act sets out the circumstances that must exist at the time of dismissal for the Applicant to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[95] There is no dispute, and I am satisfied, that the Applicant was, on 16 March 2018, protected from unfair dismissal within the meaning of s.382. It is uncontroversial that the Applicant had, as at 16 March 2018, completed a period of employment with the Respondent of the least the minimum period of employment. It is uncontroversial that an applicable enterprise agreement applied to his employment at the time of the dismissal.

Was the dismissal unfair?

[96] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

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

[97] I have already concluded for the reasons stated earlier, the Applicant was dismissed on the Respondent’s initiative within the meaning of s.386 of the Act. The Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[98] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[99] Having regard to the structure and content of s.387, in deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account.

[100] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 133 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.387 means that each of the matters must be treated as a matter of significance in the decision making process.134As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:135

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.” 136

[101] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 137

[102] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 138  by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 139

[103] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had.

(a) Valid reason – s.387(a)

[104] The inquiry under s.387(a) is concerned with whether there was “a valid reason” for the dismissal relating to the Applicant’s capacity or conduct, although a valid reason need not be the reason given or relied upon by the Respondent at the time of the dismissal. 140 The reason should be “sound, defensible or well-founded”141and should not be “capricious, fanciful, spiteful or prejudiced.”142

[105] In the circumstances of this case, there is no dispute that the dismissal of the Applicant was because the Respondent concluded that the Applicant was “unable” (currently and for the foreseeable future) to perform the inherent requirements of his position, and there were no other suitable positions given his “medical restrictions” which could be offered to the Applicant due to his back condition. The reason related to his capacity not his conduct. No other reason is relied upon by the Respondent.

[106] The Applicant contends that there was no valid reason for dismissal as the fact that he could not perform the inherent requirements of his position at the time of dismissal does not provide a sound, justifiable or defensible basis for dismissal. 143 The Applicant contends that if it were a valid reason then any employee on sick leave could justifiably be dismissed. The Applicant points to the state of the medical evidence at the time of his dismissal. Of the three medical practitioners who had physically examined the Applicant before his dismissal, neither Drs Ho or Altaf considered the Applicant to be Permanently Unfit for Duty. Only Dr Dickinson assessed the Applicant as permanently unfit.

[107] The Respondent contends that its decision was based on its conclusion that the Applicant was not able to perform the inherent requirements of the position safely for the foreseeable future without an increased risk of exacerbating the pre-existing condition. 144

[108] As I have already observed, this is a case where the dismissal is for a reason relating to the Applicant’s capacity. The reason for the dismissal is as earlier stated. In assessing whether there was a valid reason, there is a need for me to assess whether the Applicant suffered from the incapacity alleged so as to render him “Permanently Unfit for Duty” at the time of dismissal. This requires an assessment of the medical and other evidence relevant to that inquiry. If there is a conflict in relevant medical evidence, it is to be resolved by me rather than deferring to questions whether the Respondent’s choice as between competing medical opinions was reasonable. 145

[109] There is no real dispute on the available medical evidence that at the time of the Applicant’s dismissal he had a musculoskeletal condition and he did not meet the medical criteria set out in Table 24 of the Standard. That conclusion finds support in the assessments of Drs Dickinson, Altaf and McCartney. It is also consistent with the opinions given by Drs Davison and Laska. Based on his assessment of the Applicant, inter alia, on 1 March 2018, Dr Laska opines by reference to the Standard that he would have assessed the Applicant to be Temporarily Unfit for Duty. 146 Similarly, based on, inter alia, a review of the medical opinions rendered by others before the date of dismissal, Dr Davison considered the Applicant’s capacity as at 16 March 2018, to be Temporarily Unfit for Duty as described in section 5.4.2 of the Standard.147 A precondition to that assessment, as is evident from section 5.4.2 of the Standard, is that the worker “does not meet the criteria for Fit for Duty Unconditional and cannot presently perform current rail safety duties”.

[110] The central controversy concerns whether the Applicant was “permanently” unfit for duty. Noting my earlier observations about the alternative construction available of the criteria for assessing whether a worker is Permanently Unfit for Duty, as set out in section 5.4.6 of the Standard, and for present purposes, applying the construction applied by the Respondent as is evident from its request and report form, the controversy is to be resolved by answering the following question: whether, on the available medical evidence as at the time of the dismissal, the Applicant relevantly was unable to perform the duties without an increased risk of exacerbation of his musculoskeletal condition in the foreseeable future (being a period of greater than 12 months as at the date of dismissal)?

[111] For the reasons earlier stated, I consider Dr Dickinson’s assessment as ultimately unreliable since she conceded that she made the assessment without further examining the Applicant, though she had intended that this would occur and that there was no basis on medical grounds for her to have concluded that the Applicant was permanently incapacitated. 148 Dr McCartney’s assessment is thus also unreliable to the extent that he preferred Dr Dickinson’s assessment. I mean no criticism of Dr McCartney as he was not in a position to know at the time he made the assessment the circumstances in which Dr Dickinson made her assessment. Moreover, as Dr McCartney conceded, he did not make his assessment in his capacity as an Authorised Health Professional, he did not take a history of the Applicant as the Standard requires and he did not examine or meet with the Applicant. Dr Altaf concluded that the Applicant was Temporarily Unfit for Duty with a review in three months which would allow time for referral and intervention.149 Moreover, Dr Altaf noted that he did not feel the Applicant “has exhausted reasonable treatment options, therefore very difficult to advise he is permanently unfit at this stage.”150 Dr Altaf conducted a medical assessment of the Applicant before expressing his opinion.

[112] It seems to me to follow that if intervention of the kind referred to by Dr Altaf, and indeed the regime recommended by Dr Laska in his 1 March 2018 assessment were successful in at least stabilising the Applicant’s musculoskeletal condition, then the Applicant’s risk of exacerbating also diminishes and does not increase. Similarly, successful intervention, the result of which is stabilisation, may result in a resumption of a capacity for the Applicant to carry out the inherent requirements of his job as a tram driver. Dr Altaf’s assessment appears to me to be consistent with Dr Laska to the extent that Dr Laska maintains, at least in part, based on his assessment of the Applicant on 1 March 2018, that he would have assessed the Applicant as Temporarily Unfit for Duty as at the date of his dismissal. It is also consistent with the assessment of Dr Davison.

[113] In these circumstances, the weight of medical evidence available to me points to a conclusion that the Applicant was, at the date of his dismissal, Temporarily Unfit for Duty. It follows therefore that he was not Permanently Unfit for Duty as at that date. As a consequence, the Respondent’s dismissal of the Applicant for the reason that he was Permanently Unfit for Duty is not a valid reason.

[114] The absence of a valid reason weighs in favour of a conclusion that the Applicant’s dismissal by the Respondent was unfair.

(b) Notification of the valid reason – s.387(b)

[115] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 151  in explicit terms,152 and in plain and clear terms.153 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),154 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 155

[116] The Applicant was informed of the reason for dismissal in the Termination Letter on 16 March 2018. 156 The Applicant was also advised by letter to him dated 21 February 2018157 that the Chief Medical Officer had confirmed that he was Permanently Unfit for Duty for Category 1, 2 and 3 roles with the Respondent. That correspondence advised the Applicant that he could provide further information from a specialist within seven days for the Chief Medical Officer to consider and that should he not provide any further information from his specialist by close of business on 1 March 2018, the Respondent would make a decision on his employment based on the information it had.158

[117] Taken together it seems to me that the Applicant was informed of the reason related to his capacity before the dismissal was effected. That this occurred weighs against a conclusion that the dismissal was unfair.

(c) Opportunity to respond – s.387(c)

[118] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee.

[119] The Applicant was given an opportunity to provide an alternative medical specialists opinion within 7 days or 3 weeks if the period between the letter of 21 February 2018 and the date of dismissal is taken into account. The Applicant contends that this was unreasonable given the availability of specialists and as such was not provided an opportunity to respond. 159 Further, the Applicant contends that no enquiries were made in relation to the whereabouts of the specialist report that the Applicant was asked to provide before terminating his employment even though the Applicant had indicated that a report would be provided.160

[120] The Respondent contends that prior to dismissing the Applicant it had allowed him a reasonable period of additional time to provide information and had clearly indicated that he provide it without delay. 161 Further, it contends that the contents of Dr Laska’s report dated 1 March 2018 would not have changed its view.162

[121] The period specified in the Respondent’s letter to the Applicant of 21 February 2018 of seven days as the period within which a specialist report or advice is to be produced appears to me to be inordinately short given that which was requested was an opinion of a specialist medical practitioner. It is unclear to me why such a short period was fixed given the Applicant was not agitating for an immediate return to work and he had ample accumulated sick leave. In any event, by 5 March 2018, the Applicant had advised the Respondent that he had consulted his specialist Dr Laska on 1 March 2018. 163 I do not consider the period given to provide a specialist opinion was reasonable in the circumstances.

[122] No enquiries were made by the Respondent of the Applicant before his dismissal about whether Dr Laska had prepared a report and whether a copy would be provided to the Respondent. It is clear that such a report was in existence at the time of the Applicant’s dismissal. In the knowledge that the Applicant had consulted Dr Laska on 1 March 2018, I consider that it would have been appropriate for the Respondent to have made enquiries of the Applicant as to the whereabouts of any report from Dr Laska before making its decision to dismiss. Thus, although there was an opportunity to respond given to the Applicant, the extent to which this weighs in favour of the Respondent is diminished because of the short period given to the Applicant to obtain a specialist opinion and because the Respondent failed to make the enquiry I consider it ought to have made. The provision of a reason for dismissal based on capacity and the opportunity to respond to the reason are important steps to be taken before effecting a dismissal. I consider that in order to properly give the Applicant an opportunity to respond to the reason, the Respondent should not have simply ignored the fact that it has knowledge that the Applicant had consulted a specialist. That, according to Mr Foudoulis, it saw no need to enquire as to whether a report had been prepared and would be provided to the Respondent 164 speaks to the inadequacy of the opportunity provided. In these circumstances, I do not consider that the Applicant was given a proper opportunity to respond to the reason for his dismissal and ultimately I consider that this weighs in favour of a conclusion that the dismissal was unfair.

(d) Unreasonable refusal by the employer to allow a support person – s.387(d)

[123] There is no dispute that the Respondent allowed the Applicant the opportunity to have a support person present at all material times. 165 He was represented. That this occurred weighs against a conclusion that the dismissal was unfair.

(e) Warnings regarding unsatisfactory performance – s.387(e)

[124] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 166 It is not contended that the Applicant’s dismissal related to unsatisfactory performance. In the circumstances, this consideration weighs neutrally.

(f) Impact of the size of the Respondent on the procedure followed – s.387(f)

[125] The Respondent operates a significant public transport business in Victoria. Neither party contended that the Respondent’s size had any likely impact on the procedure followed to affect the Applicant’s dismissal. This factor therefore weighs neutrally.

(g) Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[126] The Respondent has on staff a number of human resources professionals to provide human resources services and advice. The Respondent appears to have involved dedicated human resources personnel both in the investigation and in the procedure adopted to affect the dismissal. However, as this consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact, this consideration weighs neutrally in the circumstances of this case.

(h) Other relevant matters – s.387(h)

[127] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant to the assessment whether a dismissal was harsh, unjust or unreasonable.

[128] I consider the following matters to be relevant and have also taken these into account as weighing in favour of a conclusion that the Applicant’s dismissal was unfair:

•  First, the Applicant has a good disciplinary record, although in the circumstances of this case, involving a dismissal for capacity, this weighs marginally in favour of the Applicant;

•  Secondly, the Applicant has a substantial period of employment. The Applicant served the Respondent for nearly four decades. His length of service warranted a more thoroughgoing consideration of his circumstances than the Respondent afforded;

•  Thirdly, at the time of his dismissal the Applicant was 73 years of age and given his particular experience obtained during nearly four decades of service it must be said it will be a difficult prospect for the Applicant to obtain alternative employment. The impact of the decision to dismiss, given his age and taking into account the possibility of regaining fitness for duty ought to have weighed more heavily in the decision whether to dismiss the Applicant;

•  Fourthly, the amount of sick leave and accumulated leave the Applicant had at the time of dismissal given the state of medical evidence speaks to the necessity of dismissal at a time when the medical evidence was, at best, conflicting; and

•  Fifthly, there is no evidence of any consideration by the Respondent of mitigating the affects of the musculoskeletal condition by way of job modification or adjustment. Some of these are set out in the functional assessment.

[129] I have also taken into account that the Applicant is a Category 1 Safety Critical Worker and the seriousness with which the Respondent must attend to its duties under the RSLO Act, particularly as they concern the health and fitness of the Applicant, and the risks to other employees and the public. Nonetheless, I do not consider this outweighs the absence of a valid reason. The relevant duty or duties would have been discharged on 16 March 2018 by allowing the Applicant to continue on paid sick leave. He was at that time Temporarily Unfit for Duty. He did not agitate for an immediate return to work and therefore posed no immediate risk to himself, to other employees or to the public.

[130] Taking all of these matters into account, in the circumstances of this case, the absence of a valid reason weighs heavily in favour of a conclusion that the dismissal was unreasonable, as in my opinion the medical evidence does not support a conclusion that the Applicant was Permanently Unfit for Duty as at the date of his dismissal. Only the considerations in s.387(b) and (d) weigh against a conclusion that the dismissal of the Applicant was unfair. The preponderance of matters I have taken into account in s.387(h) all weigh in favour of a conclusion that the dismissal was unfair as does the matter in s.387(c). The considerations in s.387(e), (f) and (g) weigh neutrally. I therefore consider for the reasons given in this decision, the Applicant’s dismissal was harsh and unreasonable. It was harsh taking into account the matters in s.387(h). It was unreasonable because of the absence of a valid reason and the considerations weighing the other way are not of sufficient moment to alter that conclusion. It follows that I consider that the dismissal by the Respondent of the Applicant was unfair.

Conclusion

[131] For the reasons given, the Applicant’s dismissal was unfair.

[132] I now need to consider the remedy, if any, that should be ordered in the circumstances. The Applicant presses for reinstatement. Reinstatement is the primary remedy for a person who has been unfairly dismissed. An order for compensation will only be considered, relevantly, if I am satisfied that reinstatement of the Applicant is inappropriate. It seems self-evident that this question will turn, in large part, on an assessment of the Applicant’s current work capacity. This will require further medical evidence.

[133] Consequently, the parties are requested to confer on the directions that should be made to progress the application to hearing in order that the question of remedy, if any, can be determined. The parties are to file in my Chambers by 5.00pm on Wednesday, 20 February 2019, a document setting out consent directions, or in the absence of consent, a document or documents setting out the respective positions of the parties in relation to directions that should be made. I will thereafter fix a further hearing date to consider the question of remedy. The parties are also strongly encouraged to confer on the question of remedy and to explore the possibility of reaching a consensus without the need for a further hearing. A Member Assisted Conciliation (MAC) can be arranged to assist the parties if the parties wish to participate. Arrangements for a MAC may be made through my Associate.

DEPUTY PRESIDENT

Appearances:

R Reitano of Counsel for the Applicant.

R Dalton SC for the Respondent.

Hearing details:

2018.

Melbourne:

September 20, 21.

Final written submissions:

Applicant, 3 and 18 October 2018.

Respondent, 15 October 2018.

Printed by authority of the Commonwealth Government Printer

<PR704580>

 1   Exhibit 7 at [2]

 2   Ibid

 3   Ibid at Attachment TCN-5

 4   Ibid

 5   Ibid at [1]

 6   Fair Work Act 2009 (Cth) s.396

 7   Rail Safety National Law Application Act 2013 (Vic) s.7

 8   See definition of “rail transport operator” in s.3 of the Rail Safety (Local Operations) Act 2006 (Vic)

 9   Rail Safety (Local Operations) Act 2006 (Vic) s.20(2)(b)

 10   Exhibit 18 at Attachment RM-1 at p.18

 11   Ibid at p.19

 12   Ibid at p.28

 13   Ibid at p.32

 14   Ibid at pp.35-36

 15   Ibid at pp.36-37

 16   Ibid at p.47

 17   Ibid at p.62

 18   Ibid at p.181

 19   Ibid at p.182

 20   Ibid at p.183

 21   Ibid at p.38

 22   Exhibit 12 at p.5

 23   Exhibit 7 at Attachment TCN-5; Exhibit 11 at Attachment VF-3

 24   Ibid

 25   Exhibit 8 at Attachment TCN-10; Submissions on behalf of Trung Chi (Charlie) Nguyen dated 3 October 2018 at [3]

 26   Exhibit 7 at [3]

 27   Ibid

 28   Ibid at [4]; Exhibit 9 at Attachment DK-3

 29   Exhibit 7 at Attachment TCN-1

 30   Ibid at [5]

 31   Transcript at PN972

 32   Exhibit 7 at [6]

 33   Exhibit 12

 34   Transcript at PN812

 35   Ibid at PN828

 36   Exhibit 12 at p.5

 37   Transcript at PN915-PN925

 38   Ibid at PN816-PN829

 39   Ibid at PN972-PN975

 40   Transcript at PN982; Exhibit 7 at [6]; Exhibit 8 at [9]

 41   Exhibit 7 at Attachment TCN-1

 42   Exhibit 7 at [6]; Exhibit 8 at [9]

 43   Transcript at PN828

 44   Exhibit 7 at [7]; Exhibit 9 at [6]

 45   Exhibit 9 at [6]

 46   Exhibit 7 at [7]

 47   Ibid at [8]

 48   See Exhibit 18; Attachment RM-3

 49   Transcript at PN927- PN933; PN943; PN1198-PN1200

 50   Ibid at PN935-PN938

 51   See Exhibit 18; Attachment RM-3

 52   Transcript at PN1133

 53   Ibid at PN1109-PN1176

 54   See also Exhibit 12

 55   Exhibit 7 at [9]; Exhibit 9 at [7]

 56   Exhibit 7 at [9]; Exhibit 9 at [9]; Exhibit 10

 57   Exhibit 7 at [11]

 58   Exhibit 9 at [12]

 59   Transcript at PN476

 60   Exhibit 9 at Attachment DK-4; Transcript at PN473

 61   Exhibit 7 at [12]

 62   Exhibit 9 at Attachment DK-6

 63   Transcript at PN551

 64   Ibid at PN594-PN600

 65   Ibid at PN674

 66   Exhibit 7 at [13]; Exhibit 9 at [18]

 67   Exhibit 7 at [13]; Exhibit 9 at [19]

 68   Exhibit 7 at [13]

 69   Exhibit 7 at Attachment TCN-2; Exhibit 9 at [17]

 70   Transcript at PN1784-PN1787

 71   Ibid at PN1802

 72   Exhibit 18 at [18]

 73   Ibid at [19] and Attachment RM-3

 74   Ibid at [20]

 75   Ibid at [21]

 76   Ibid

 77   Exhibit 18 at Attachment RM–4

 78   Ibid

 79   Ibid

 80   Ibid

 81   Ibid at Attachment RM–3

 82   Transcript at PN1806–PN1809

 83   Ibid at PN1754-PN1759

 84   Exhibit 18 at Attachment RM-4

 85   Transcript at PN1784

 86   Ibid at PN1785–PN1790

 87   Ibid at PN1795

 88   Ibid at PN1802

 89   Exhibit 9 at [20]; Exhibit 7 at [14]

 90   Exhibit 9 at [22]; Exhibit 7 at [15]

 91   Exhibit 7 at Attachment TCN-3

 92   Exhibit 16; Exhibit 11 at Attachment VF-1

 93   Exhibit 11 at Attachment VF-1

 94   Exhibit 11 at Attachment VF-2; Exhibit 7 at Attachment TCN-4

 95   Exhibit 9 at Attachment DK-9; Transcript at PN586

 96   Transcript at PN725

 97   Exhibit 8 at Attachment TCN–10

 98   Ibid

 99   Exhibit 7 at [22]; Attachment TCN-9

 100   Exhibit 7 at Attachment TCN-9

 101   Exhibit 7 at [19]

 102   Transcript at PN1313

 103   Ibid at PN1650

 104   Exhibit 4

 105   Exhibit 1

 106   Exhibit 2

 107   Exhibit 3

 108   Transcript at PN61

 109   Exhibit 1 at pp.3, 5 and 6

 110   Exhibit 2 at pp.3-4

 111   Exhibit 3 at pp.2-3

 112   Transcript at PN192-PN193

 113   Ibid at PN329-PN330

 114   Exhibit 6 at Attachment JF-2

 115   Transcript at PN365

 116   Exhibit 6 at Attachment JF-3

 117   Exhibit 13 at p.2

 118   Exhibit 15

 119   Transcript at PN1313

 120   Ibid at PN1323-PN1325

 121   Ibid at PN16-PN19; PN1256-PN1257

 122   Ibid at PN18

 123   [2013] FWCFB 9075

 124   Ibid at [55]

 125   [2018] FWCFB 3989

 126   Ibid at [64]-[67]

 127   Exhibit 3

 128   Ibid at p.2

 129   Exhibits 1 and 2

 130   Exhibit 13

 131   Exhibit 14

 132   Exhibit 15

 133   [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 134    See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 135    (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 136   (1987) 16 FCR 167 at 184

 137   [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

 138   (1995) 185 CLR 410

 139   Ibid at 465

 140   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378

 141   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 142   Ibid

 143   Outline of submissions on behalf of Chi Nguyen dated 12 June 2018 at [9]

 144   Outline of submissions of the Respondent dated 15 October 2018 at [25]

 145   CSL Limited v Papaioannou [2018] FWCFB 1005; (2018) 273 IR 168 at [77]

 146   Exhibit 15

 147   Exhibit 2 at p.3

 148   Transcript at PN1175 – PN1176

 149   Exhibit 18 at Attachment RM – 3, Part B Health Assessment Report completed on 24 January 2018

 150   Exhibit 18 at Attachment RM – 3, email from Dr Altaf to Dr McCartney dated 24 January 2018

 151   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 152   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151

 153   Previsic v Australian Quarantine Inspection Services Print Q3730

 154   (2000) 98 IR 137

 155   Ibid at 151

 156   Outline of submissions on behalf of Chi Nguyen dated 12 June 2018 at [13]

 157   Exhibit 7 at Attachment TCN–3

 158   Ibid

 159   Outline of submissions on behalf of Chi Nguyen dated 12 June 2018 at [14]

 160   Submissions on behalf of Trung Chi (Charlie) Nguyen dated 3 October 2018 at [27]

 161   Outline of submissions of the Respondent dated 3 July 2018 at [18]

 162   Ibid; Exhibit 18 at [33]

 163   Exhibit 7 at Attachment TCN–4; Exhibit 11 at [5]; Attachment VF–2

 164   Transcript at PN725

 165   Outline of submissions on behalf of Chi Nguyen dated 12 June 2018 at [15]

 166   Annetta v Ansett Australia (2000) 98 IR 233 at 237