DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Marko MacQueen
v
Nyrstar Hobart Pty Ltd T/A Nyrstar Hobart
(U2019/13284)

Application for an unfair dismissal remedy – inherent requirements of the role – dismissal harsh, unjust or unreasonable – further submissions on remedy sought.

[1] On 28 November 2019, Mr Marko MacQueen (Applicant) made an application under section 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. The Applicant was employed by Nyrstar Hobart Pty Ltd trading as Nyrstar Hobart (Respondent) as an Operator (also referred to interchangeably as Production Operator, Leach Operator and Shift Operator) when his employment was terminated on 7 November 2019.

[2] The Applicant received a termination letter dated 7 November 2019 advising him that his employment has been terminated as he was unable to perform the inherent requirements of his role as an Operator. 1

[3] The Applicant submits that his termination was unfair and seeks reinstatement and payment for lost remuneration or compensation if reinstatement is deemed inappropriate. 2

[4] The matter was heard before me on 14 May 2020 and 2 July 2020 as well as for a brief Mention on 14 September 2020. Both parties were represented.

[5] Section 396 of the Act requires that I decide four matters before considering the merits of the Applicant’s application. There is no dispute between the parties, and I am satisfied, of the following matters. Firstly, the Applicant’s application was made within the 21 day period required by section 394(2) of the Act. Secondly, the Applicant was a person protected from unfair dismissal, as he had completed the minimum employment period and was covered by the Nyrstar Hobart Production Enterprise Agreement 2017 (Agreement) at the time of dismissal. Thirdly, the Respondent is not a small business for the purposes of the Act, and therefore I do not need to consider the Small Business Fair Dismissal Code. Fourthly, the Applicant’s dismissal was not a case of genuine redundancy.

Background

[6] On or around 29 July 1994, the Applicant commenced his employment with the Respondent. The Applicant was employed as an Operator in the zinc smelter in Lutana. 3 On 7 August 2014, the Applicant commenced a role as an Operator in the leach plant.4

[7] On 19 August 2017, the Applicant suffered a cardiac arrest at the Respondent’s worksite.

[8] Between 19 August 2017 and May 2018, the Applicant was on paid “no debit, no credit” leave. 5

[9] On 14 March 2018, Dr Kevin Cheng, Cardiology Registrar at the Royal Hobart Hospital, issued a letter regarding the Applicant which states as follows: 6

“The purpose of this letter is to say that Marko has been an outpatient of the Royal Hobart Hospital Cariology department since August 2017 following his out of hospital cardiac arrest in the setting of anterior ST segment elevation myocardial infarction. Marko has survived the cardiac arrest and has made a good recovery following his discharge. However Marko has suffered a mild degree of acquired brain injury in the setting of the cardiac arrest. At this stage Marko’s main issues have been reduced concentration and impaired short term memory. Marko has been off work since August 2017 following this incident.

Marko’s repeat transthoracic echocardiogram has shown improvement in terms of his cardiac function with low normal overall systolic function of 52%.

I am happy for Marko to return back to work, however this will require limitations in terms of his degree of workload and also the hours. From a medical recommendation we suggest that Marko had a graduated return to work with initially commencing light duties at about for hours per day. This can be gradually increased to suit Marko’s fatigue level. I would also advice Marko not works (sic) with heavy metals due to his increased risk with further worsening of his cardiovascular disease. Given Marko’s significant fatigue I would suggest that he keeps his shifts during the daytime hours.

Please do not hesitate to contact us in the Cardiology Department of the RHH if there are any further questions or concerns”

[10] On 7 May and 17 May 2018, the Applicant had meetings with the Respondent regarding his long-term absence, return to work and ongoing paid leave. 7

[11] On 14 May 2018, Dr Mark Spearpoint, a general practitioner and onsite doctor for the Respondent, issued a medical certificate with respect to the Applicant which stated the Applicant was fit for a graduated return to work program on the following terms:

•  4 hours per day;

•  Alternative days (Monday, Wednesday, Friday);

•  Light duties; and

•  No exposure to heavy metals that would require biological monitoring.

[12] On 8 June 2018, Mr Timothy Wilson – Haffenden sent a letter to the Applicant which stated as follows: 8

“I refer to our meetings on Monday, 7 May 2018 and Thursday, 17 May 2018 to discuss your long term absence, return to work and ongoing access to paid personal leave. This follows your cardiac arrest in August 2017, noting that you have been off work in receipt of paid personal (sick) leave since that time.

As we discussed, your specialist Dr Cheng highlighted a mild degree of acquired brain injury with the main issues at this stage being reduced concentr5ation and impaired short term memory. Dr Cheng recommended a graduated return to work commencing with light duties and also advised not to work with heavy metals due to increased risk with further worsening of your cardiovascular disease. He also suggested that, given your fatigue, that you keep your shifts to daylight hours.

Dr Mark Spearpoint then provided a medical certificate dated 14 May 2018 indicating you are fit for a graduated return to work of 4 hours per day on alternate days and light duties. However, Dr Spearpoint states on the certificate “no exposure to heavy metals that would require biological monitoring”. As discussed, this effectively eliminates the rehabilitation roles we discussed in our meeting on 7 may 2018 and potentially has the effect of Nyrstar being unable to provide you with a return to work placement on this site. At our meeting on 17 May I undertook to get clarity on this position. I confirm that – based on the current available information – that position remains. There are also concerns with the impact of the mild degree of acquired brain injury suffered from the cardiac arrest.

If you remain of the view that a return to work is practical, Nyrstar will require an independent medical evaluation (IME) with a focus on your prognosis for returning to your substantive position and consideration of what range of duties you may or may not be able to perform in the short to medium term. This will enable us to identify what, if any, positions may be reasonably available for you.

…

Having reviewed the medical advice and prognosis available at this time, you are advised that your payments under Nyrstar’s ‘No debit, no credit’ conditions will cease effective Monday, 16 July 2018. You will continue to receive Personal Leave payments from 17 July 2018 in accordance with the National Employment Standard.

I do note that you currently have in excess of 600 hours of accumulated annual, sick and long service leave available should you elect to take that leave.”

[13] On 26 June 2018, Dr William Johnson, a general practitioner, issued a medical certificate regarding the Applicant which stated “FIT TO RETURN TO WORK IN A LOW LEAD RISK AREA WITH REGULAR BIOLOGICAL MOINTORING AT A GRADUATED RETURN TO WORK SCHEDUELE”. 9

[14] On 13 July 2018, Mr Wilson – Haffenden sent a letter to the Applicant which relevantly stated as follows: 10

“At our meeting on 27 June 2018 you provided a medical certificate from Dr Johnson stating you fit (sic) for a graduated return to work. We discussed the interactions between Dr Stoddard, Dr Spearpoint and Dr Cheng to get to this point.

We agreed that, subject to a certificate from Dr Stoddard and the preparation of a return plan, we would look to provide a return to work opportunity in Stores. Working arrangements will be consistent with your return to work plan….you will commence work on Monday, 16 July 2018 in the Nyrstar Hobart Store…

As discussed, Nyrstar will also organise a Neuropsychiatric testing to ensure your injury does not put yourself or others at risk.

Your return to work progress will be reviewed in late August 2018.

…”

[15] On 16 July 2018, following an appointment with the Applicant, Dr Spearpoint issued a further medical certificate with respect to the Applicant which stated the Applicant was fit for a graduated return to work program on the following terms: 11

•  4 hours per day;

•  Alternative days (Monday, Wednesday, Friday);

•  Light duties;

•  Baseline blood lead tests; and

•  Monthly blood lead levels.

[16] On 17 July 2018, the Applicant returned to work on a graduated return to work program in an alternative role. 12

[17] On 15 August 2018, the Applicant’s lead in blood levels were recorded as increasing from 6 mcg/dL to 11 mcg/dL. As a result, the Applicant’s graduated return to work program was ceased. 13

[18] On 23 August 2018, an initial workers compensation medical certificate is issued by Dr Hannah Stoddart, the Applicant’s general practitioner, which stated, amongst other things, “as per cardiologist Dr kevin Cheng (sic): according to Marko, cardiologist states that he is not to work unless blood levels <5mcg/dL and then in low exposure areas/day shift/three days a week on alternate days for 4 hours a day” and noted that the Applicant was not fit for his pre-injury duties; 14

[19] On 29 August 2018, the Applicant was assessed by Dr Martine. 15

[20] On 3 September 2018, Dr Martine issued a Neuropsychological Report regarding the Applicant. This report stated, amongst other things, that: 16

•  “Mr MacQueen presented as a good historian. He was very talkative, prosody was normal, and no expressive or receptive language difficulties were evident. Affect was appropriate and mood appeared euthymic although Mr MacQueen reported high stress levels and his responses to a mood questionnaire suggested mild depression and anxiety and moderate stress symptomatology.”;

•  the intellectual assessment indicated “no decline in intellectual ability”; and

•  “The test results indicated an overall pattern of intellectual and cognitive function within the average range. No cognitive deficits were evident although Mr MacQueen exhibited impulsivity and a lack of self – monitoring, which may reflect some mild orbitofrontal lobe changes, personality characteristics, or the behaviour manifestations of his heightened stress levels. In my opinion, there is no cognitive barrier to Mr MacQueen returning to work and resuming his pre-injury duties. However, there is a potential risk of Mr MacQueen developing neurological or neurocognitive deficits in the future with further prolonged exposure to lead and heavy metals, particularly in light of his already elevated levels of neurotoxins in the blood…At present Mr MacQueen is not exhibiting any cognitive or psychological effects. Nevertheless, if Mr MacQueen returns to his pre-injury work and duties it would be advisable for his cognitive and psychological status to be monitored every two years or earlier if symptoms develop” (emphasis added).

[21] On 13 September 2018, the Workers Rehabilitation and Compensation Tribunal of Tasmania issued an order by consent regarding the Applicant’s workers compensation case against the Respondent stating, amongst other things, that a “reasonably arguable case exists with regard to the employer’s liability to pay compensation…[and] that compensation by way of weekly payments and the costs of any benefits…is not to be paid to the worker by the employer”. 17

[22] On 15 November 2018, Dr Warrick Bishop, the Applicant’s Cardiologist, sent a letter to Dr Stoddart discussing the Applicant’s condition which stated, amongst other things, “…lead exposure could not be considered a single cause or single contributor to this gentleman’s myocardial infarction”. 18 The Applicant and Dr Spearpoint were copied into this correspondence.

[23] On 23 July 2019, Dr Johnson issued a continuing workers compensation certificate which states, amongst other things, that the current symptoms are “high lead levels, memory loss”, the current diagnosis is “AMI with memory impairment due to VT arrest” and, with respect to returning to work, comments “Not to work unless blood lead levels <5mcg/dL and then in low exposure areas, day shifts”. 19

[24] On 9 August 2019, Mr Foss wrote to Dr Brett Opperman, an Occupational Physician, seeking a Fitness for Duty Assessment of the Applicant. 20

[25] On 12 September 2019, the Applicant had an appointment with Dr Opperman.

[26] On 24 September 2019, Dr Opperman issued a report, addressed to Mr Foss, regarding the Applicant’s fitness for work (Opperman Report). The Opperman Report stated, amongst other things: 21

•  “The following documentation was received from the referring party and reviewed by me:

1. Your referral letter dated 9 August 2019

2. A WorkCover Tasmania Workers Compensation Medical Certificate by Dr William Johnson dated 23 July 2019.

3. Letter by cardiology registrar Dr Kevin Cheng dated 14 March 2018.

4. Biological monitoring results blood lead report by Mr Rohen Foss dated 12 September 2019

The following documentation was received from Mr MacQueen and reviewed by me:

1. Neuropsychological report by Dr Janine Martin dated 3 September 2018.

2. Report by cardiologist Dr Kazuaki Negishi dated 20 August 2018.

3. Report by cardiologist Dr Warrick Bishop dated 1 August 2017.

4. Stress echocardiography report by Dr Warrick Bishop dated 1 August 2017.

5. Holter report dated 18 December 2017.

6. Echocardiogram reports dated 21 November 2017 and 25 January 2018.

7. Blood test results (various dated).

8. Biological monitoring results blood lead.

9. Report by occupational hygienist Ms Julia Henry dated 15 October 2018.”

•  The Applicant continues to “suffer from some shortness of breath with heavy activity at times and he also experiencing fatigue which he stated continued to limit his activity at times”

•  “I understand that a workers’ compensation certificate has been provided by Mr MacQueen’s treating general practitioner certifying that he is not to work unless his blood lead levels were less than 5µg/dL. And then only in a low exposure area. I understand that such recommendation has been made on the premise that blood lead levels above 5 µg/dL may potentially cause aggravation of Mr MacQueen’s cardiovascular disease. I note however, the upper limit of 5 µg/dL as recommended by Mr MacQueen’s treating general practitioner to be significantly less than the allowable blood lead levels of 30 µg/dL for occupationally exposed workers as determined and as recently amended in 2018 by Safework Australia, the prior occupational exposure limit having been 50 µg/dL for male workers and for which a transition period of two years is still in effect to my understanding…I understand that [the Applicant] wishes to follow the recommendation given by his treating general practitioner, rather than that given by Safework Australia with respect to acceptable blood lead levels, he though being prepared to return to work in a potential lead-exposure role wearing any PPE as may be required to safeguard him against increased lead exposure…Mr MacQueen also reported some persistent fatigue following his cardiac event two years ago, and for which I would accept the recommendation given by his treating general practitioner that he be restricted to working day shift only be reasonable”;

•  “It is not my opinion that Mr MacQueen likely suffers from any ongoing health complaint which causes concern with respect to his safety or the safety of others when at work.”;

•  “Mr MacQueen …presently [has] capacity to return to work on at least a part-time basis undertaking normal duties for at least 0.5FTE hours. His capacity for working increased hours will primarily depend upon the inherent physical demands of the role, he likely (sic) to have at least some difficulty in undertaking heavy work on a full-time basis at the present time but with such quite likely to be within his future capacity following an appropriate period of work hardening. In work which is predominantly sedentary to light in inherent physical demand I would accept Mr MacQueen presently have capacity to work full-time hours. Should concern exist as to Mr MacQueen’s capacity to undertake the inherent physical demands of a specific job role, then I recommend that consideration be given to referring him for a formal functional capacity evaluation in the first instance against which the inherent physical demands of the specific work role could then be compared. With respect to a blood lead level deemed acceptable for Mr MacQueen to continue working, I suggest it to be a matter for MacQueen in the first instance to divide for himself as to which advice e he prefers to follow…” (emphasis added);

•  “…I also recommend that consideration to be given to providing Mr MacQueen with PPE even if afforded a return to work in a low exposure role where PPE would otherwise not routinely be required to be worn”

[27] On 22 October 2019, Dr Johnson issued a continuing workers compensation certificate (October Certificate) which, amongst other things, identified current symptoms as “high lead levels, memory loss”, identified current diagnosis as “AMI with memory impairment due to VT arrest” and, with respect to return to work, comments (in contrast to previous certificates) “Regular blood lead levels checked to ensure at safe level”. 22

[28] On 7 November 2019, the Applicant attended a meeting, together with Mr Hassett of the Constructions, Forestry, Maritime, Mining and Energy Union (CFMMEU), with Mr Wilson – Haffenden. During this meeting the Applicant was informed that his employment was terminated. 23 The Applicant contends that he attempted to provide the October Certificate to Mr Wilson – Haffenden during the meeting but “he wasn’t interested”24 and Mr Wilson – Haffenden accepts that he “chose not to receive that certificate”. 25 At the meeting, the Applicant was issued with a letter of termination which relevantly stated:26

“As you are aware, through the second half of 2018 we had a number of meetings regarding you long term absence, access to paid sick leave, workers compensation and fitness for work. More recently we met to discuss your ongoing employment and determined that you would undertake an independent medical assessment to assess your ability to meet the inherent requirements of the role.

By way of background, following your heart attack in August 2017 you commenced paid sick leave in accordance with Nyrstar’s ‘No Debit, No Credit’ sick leave arrangements. From August 2017 you received approximately 12 months of paid sick leave.

In June 2018 you were advised your entitlements under the ‘no debit, no credit’ sick leave would cease and you would move to sick leave entitlements consistent with the National Employment Standard. You briefly returned to Nyrstar on a Return to Work plan working reduced hours in the Store before again being certified unfit for work.

You then lodged a Workers Compensation Claim in August 2018 prior to consenting to arguable case in September 2018. Nyrstar continues to receive workers compensation certificates from you, the last dated 23 July 2019.

Since August 2018 when you exhausted your planned leave entitlements you have been on sick leave payments in accordance with the National Employment Standard. This has included significant periods of unpaid sick leave.

Your doctor continues to certify you as unfit for pre injury duties and that you should only work in low exposure areas, 4 hours per day and no shift work. A copy of the last certificate received by Nyrstar is attached.

An independent medical assessment was completed in September by Dr Brett Oppoerman (sic) who, while acknowledging the capacity to work part time, raises concerns on an acceptable blood lead level and concerns about the ability to undertake heavy work. He highlights work which is predominantly sedentary to light in physical demands could work full time. A copy of that assessment is also attached.

The report has been discussed with George Rautenback, Production Manager who was advised there are no positions available to accommodate these requirements. While the IME report indicats (sic) a capacity to work, Nyrstar is unable to accommodate those restrictions.

Regretfully, against this background, Nyrstar has determined to terminate your employment effective 7 November 2019 on the basis that you are unable to meet the inherent requirements of the role of Leach Operator and there are no suitable alternate roles available. You will receive 5 weeks pay in lieu of notice.”

[29] On 6 February 2020, Dr Johnson sent a letter to the Respondent regarding the Applicant’s fitness for work which attached the workers compensation certificate dated 22 October 2019 and a continuing workers compensation certificated issued by Dr Johnson on 6 February 2020 which stated, amongst other things, “Nill current symptoms” and: 27

“Marko is fit to return to work doing usual duties if his treating cardiologist Dr Warrick Bishop is in agreeance.

If this is the case:

1. Initially Marko should return to work on a 0.5FTE basis as the rostering allows undertaking normal duties.

2. Marko is likely able to increase to full time work after an appropriate period of work hardening.

3. In a sedentary role, Marko is currently fit to work on a full time basis.

4. Marko should be offered PPE regardless of the area he works.

5. Regular blood lead levels checked to ensure at safe level as per Nyrstar policy and SafeWork Australia recommendations.” (emphasis retained)

[30] On 12 March 2020, Dr Bishop wrote a letter regarding the Applicant.  28 For the reasons set out at paragraph [57] below, I do not need to reproduce its contents.

[31] On 24 April 2020, Dr Bishop wrote a letter regarding the Applicant. For the reasons set out at paragraph [57] below, I do not need to reproduce its contents.

Evidence

[32] The Applicant relied upon witness statements from himself and Mr Hassett.

[33] The Respondent relied on witness statements from:

•  Mr Rohan Foss, Rehabilitation and Wellness Advisor for the Respondent; and

•  Mr Timothy Wilson-Haffenden, Human Resources Manager for the Respondent.

[34] Each of the witnesses was subject to cross examination.

[35] I note that the parties rely on a significant amount of written material prepared by various medical practitioners. The Respondent submits that “The respondent and the Commission have not had an opportunity to test the assumptions, conclusions and opinions of the authors of the medical correspondence submitted on behalf of the applicant. This fatally undermines the weight and relevance of the material filed and the applicant’s reliance on it”. It is unfortunate that neither party sought to call the medical practitioners as witnesses. In any event, I disagree with the Respondent’s characterisation and do not consider it fatal to Applicant’s case. In the circumstances, I am satisfied it is appropriate to give this evidence some weight while having regard to the fact that the medical practitioners were not made available for cross-examination.

[36] I also note that, following the filing of the Applicant’s Amended Closing Submissions in Reply, the Respondent made a series of objections to the inclusion of the amended material. I have considered the Respondent’s objections and have determined to allow the Applicant’s material.

Legal Principles

[37] In Crozier v Australian Industrial Relations Commission (Crozier), 29 the Full Court of the Federal Court endorsed the approach taken by the Full Bench of the Australian Industrial Relations Commission to determining whether a valid reason exists in the context of a capacity case. In Crozier, the Full Court of the Federal Court held:

“The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that "the main focus of his position was to generate new business"; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative (at 150 & 152-153). In making these findings it acted within jurisdiction, and we detect no jurisdictional error in its approach.” 30

[38] In CSL Limited v Papaioannou (CSL), 31 applied in Hyde v Serco Australia Pty Limited (Serco),32 a Full Bench of the Commission concluded that:

“In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.” 33

[39] In Serco, 34 a Full Bench of the Commission adopted the approach taken in Jetstar Airways Pty Limited v Neeteson-Lemkes (Jetstar) [2013] FWCFB 9075. on capacity at the time of dismissal, and said:

“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.” 35

[40] In Jetstar, the Full Bench said:

“We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.” 36 (emphasis added)

[41] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in section 387. I will address each of these matters in turn below.

Section 387(a) – Valid reason

[42] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is “sound, defensible or well-founded’ and not ‘capricious, fanciful, spiteful or prejudiced”. 37

[43] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 38 The question the Commission must address is whether there was a valid reason for the dismissal related to the employees’ capacity or conduct (including its effect on the safety and welfare of other employees).39

Submissions of the parties

[44] The Respondent submits that at the time of termination and in the then-foreseeable future, the Applicant was unable to perform the inherent requirements of the role for which he was engaged and no reasonable accommodations could be made. 40 In support of this position, the Respondent advances the following:

(1) the “historical facts” as they applied to the Applicant demonstrate that for a period of 2 years from the date of the Applicant suffering the cardiac arrest the Applicant had demonstrated no capacity to return to his substantive role, and the Applicant’s medical condition and restrictions and/or limitations as certified by his treating medical practitioner remain unchanged; 41

(2) the Applicant had not returned to the workplace and performed any duties since 23 August 2018 following a short period when he returned to work in the store until his lead in blood level became elevated; 42

(3) the Applicant’s condition was treated as a non-work related injury and the Respondent was under no statutory obligation to create or provide work for the Applicant; 43

(4) the Applicant had accessed in excess of 1300 hours paid personal leave;  44

(5) following the receipt of the Opperman Report in July 2019, the Respondent concluded that:

a. the Applicant’s capacity to undertake heavy work was limited to 2-3 hours per day, limited to day shift; 45

b. the Applicant was fit for full time sedentary work; 46

c. the Applicant suffered “significant fatigue” following “heavy work”, including the Applicant’s reference to chopping wood which on his own account left him “fatigued”; 47

(6) the restrictions imposed on the Applicant continued such that he was unable to fulfil the substantive role and that there was “no measurable indication” of when, “or if”, the Applicant would be able to return to his substantive role. Information obtained three months after dismissal to establish “retrospectively” that the Applicant did have capacity to return to work, and a reasonable prognosis is “speculative and unreliable”; 48

(7) the restrictions imposed by “the medical certificate” required the creation of a supernumerary position that had been covered by contractors since the commencement of his absence at an “ongoing and significant cost” to the Respondent and that the creation of a new day shift or part time position for the Applicant was not a “reasonable adjustment”; 49

(8) the Applicant’s substantive role is a full time position involving “heavy manual labour”; 50

(9) the Applicant was advised by the Respondent on or about 29 July 2019 that a medical assessment was being organised to determine if he was fit to return to the substantive role and that if he was unable to return to the substantive role there were no other employment options for him with the Respondent; 51

(10) the Applicant accepts that he was on notice from at least 29 July 2019 that his ongoing employment was at risk; 52

(11) the Applicant took little or no action to commence or promote a return to work plan and from 29 July 2019 to the date of dismissal the Applicant did not provide any information to the Respondent from his treating practitioners that would assist his return to work or result in his capacity to return to work being reviewed; 53

(12) upon receiving Dr Johnson’s medical certificate on 22 October 2019, the Applicant took no steps to provide it to the Respondent; 54

(13) given that the Applicant has been absent for a period of 16 months on unpaid leave (personal leave having ceased in July 2018), the Applicant’s absence from work as a result of incapacity was not a temporary absence in relation to which the Applicant was protected from termination of employment by section 352 of the Act; 55

(14) the Applicant had not proceeded with his workers compensation claim following the finding of an arguable case. Correspondence from Dr Bishop to the Applicant’s general practitioner suggested that lead exposure may have contributed to the myocardial infarction suffered by the Applicant but could not be considered the single cause or contributor; 56

(15) “it is not in dispute that the applicant had no capacity for the full time substantive position at the date of the termination of his employment”; 57

(16) The weight and relevance of Dr Johnson’s updated medical certificate dated 6 February 2020 is “fatally undermined” by the Applicant’s failure to make Dr Johnson available for cross examination and explain the basis for the change to the medical certificate of 22 October 2019, the conditions included in the certificate and the period of time required for the Applicant to return to his substantive position. Further, although the updated medical certificate stated that the Applicant was fit to return to work on normal duties at 0.5 FTE, it offered no prognosis for any period of “work hardening” notwithstanding that it was written three months after the date of dismissal; 58

(17) Dr Bishop’s reports of 12 March 2020 and 24 April 2020 ought be given little, if any weight given the Applicant’s failure to make Dr Bishop available for cross examination. Further, given that the Applicant was consulting Dr Bishop during the time that he was consulting his general practitioner and obtaining medical certificates, “Dr Bishop’s reports to the treating general practitioner were available to the treating medical practitioner and did not result in a change in the assessment of the applicants capacity to return to work”; 59

(18) the Applicant has maintained, since at least 23 August 2018, that his medical condition was contributed to by lead in blood and/or bone levels and in light of the fact that his workers compensation claim remains on foot and has not been discontinued, “that remains his view”; 60

(19) the Respondent was entitled to rely on the medical certificate of capacity provided by the Applicant in which his medical practitioner certified that he suffered from memory impairment, any return to work should include lead blood levels below 5 mcg/dL and should be restricted in duties, hours and days of work; 61

(20) the Respondent seeks the following findings:

•  “The respondent submits that as at September 2018 the following findings of fact can be made:  62

•  the applicant had been absent from work as a result of cardiac arrest in July 2019.

•  prior to being advised that the applicant’s access to ongoing paid leave would cease, the applicant had taken no active steps to attempt a return to work. Further, at the meeting on 7 May 2018, the applicant had raised the possibility of a redundancy payment.

•  the applicant had attempted a return to work which had been unsuccessful when his blood lead levels increased significantly following his return to work.

•  the applicant considered his exposure to heavy metals to be the cause of this cardiovascular disease and lodged a workers’ compensation claim to that effect.

•  the applicant, on his own account, was not able to meet the inherent requirements of his position in August 2018.”

•  “at the date of dismissal, the applicant was not able to perform the inherent requirements of his substantive role”; 63

•  “the respondent provided reasonable accommodation in mid 2018 that was unsuccessful. At the time of dismissal there was no reasonable accommodation available for the applicant”; 64

•  “there was no reasonable basis on which to conclude that the applicant would be able to return to his substantive position and perform the inherent requirements of the position within a reasonable period or at all”; 65

•  “The Commission has not had the benefit of hearing from the medical practitioners, nor were they made available for cross examination. The Commission cannot confidently make conclusions as to the applicants prognosis for a return to his substantive position within a reasonable period”; 66

•  “There was a valid reason for the termination in the circumstances”; 67

•  “The applicant received a fair go all round”; 68 and

•  “The applicant was notified of the risk that his employment would be terminated on 29 July 2019 if he was unable to return to his substantive position. He had significant advance notice and opportunity to positively act to address the matter raised.”

[45] The Applicant disputes the Respondent’s assessment and says that, as at the date of dismissal, the Applicant was capable of performing the inherent requirements of the role or alternatively that a reasonable adjustment of a graduated return to full time hours would accommodate any current or future incapacity. Further, and in the alternative, that the Applicant was able to perform the inherent requirements of the role at some time in the future. In those circumstances, the Applicant submits that there was no valid reason for termination. In support of this position, the Applicant advances the following:

(1) the Applicant’s assessment of the physical demands of the role is that it comprised “approximately 70 % light work” and “the remaining approximately 30% comprised of light to moderate work” and while the role could involve heavy manual work this was “rare” and “usually only encountered with major plant shutdowns or extreme plant failures”; 69

(2) the Applicant was capable of chopping firewood for two to three hours at a time, after which he concedes that he is “buggered”, walking 10 kilometres without stopping and capable of performing the task of manual stripping of zinc sheets should the need arise; 70

(3) in cross examination, Mr Wilson-Haffenden concedes that the heavy work required by the role is not akin to chopping wood and that changing filters “for the day ….requires about 15 minutes per hour of manual work…”; 71

(4) the primary medical evidence supports a finding that the Applicant was capable of performing the inherent requirements of the role at the time of the dismissal or alternatively at some point in the future for the following reasons:

•  the Opperman Report stated that the Applicant has capacity to return to work on “at least” a part time basis undertaking “normal” duties for at least 0.5 FTE hours noting that his “capacity for working increased hours will depend primarily upon the inherent physical demands of the role”; 72 and

•  Dr Opperman considered that “undertaking heavy work on a full time basis was quite likely to be within [the Applicant’s] future capacity following an appropriate period of work hardening”. Dr Johnson expressed the view that “ marko is likely able to increase to full time work after an appropriate period of work hardening”. Further, during cross examination, Mr Foss conceded that his conclusion that the Applicant was unlikely to achieve a sufficient level of recovery to safely perform the full range of duties in the foreseeable future was a different conclusion to what Dr Opperman concluded. In addition, Mr Wilson- Haffenden conceded that Dr Opperman and Dr Johnson state that the Applicant “is likely to be able to some time into the future” return to his substantive role. 73

•  After receiving Dr Opperman’s report on 6 February 2020, Dr Johnson updates his medical certificate to “reflect this advice” and the updated certificate should be taken into account in lieu of the certificate of 22 October 2019 as the changes were to “update” the certificate to reflect Dr Opperman and Dr Martin’s advice and “thus the certificate deals with facts that existed at the date of dismissal”;  74

•  Dr Bishop’s report of 12 March 2020 ought be accorded significant weight given that, as the Applicant’s treating cardiologist, he “was best placed to assess [the Applicant’s] cardiac health” and “had a long-term view of the applicant’s progress in recovering from his cardiac arrest”. Further, Dr Bishop was the only medical practitioner provided with detailed information about the Applicant’s duties and hours of work and “asked to assess his capacity in respect of these requirements”; 75

•  Dr Bishop’s view, as stated in his 24 April 2020 report, is that it “would not be unreasonable to think” that the results of the stress test performed on 12 March 2020 may have been the same if the test had been undertaken before November 2019; 76

•  Dr Bishop is “likely” to have made “very similar findings as at the date of dismissal” and the Commission is entitled to rely on medical opinions about the Applicant’s state of health “at the time of dismissal which may have occurred some time before they were assessed by the expert”; 77

•  There was no cognitive barrier to the Applicant returning to work and resuming his pre-injury duties, as evidenced by the report of Dr Martin and the concessions of Mr Wilson- Haffenden and Mr Foss in cross examination that Dr Martin’s report satisfied the Respondent’s concerns “about memory impairment”; 78 and

•  In the circumstances, the potential for lead exposure in the workplace was not “relevant” to the Applicant’s capacity to perform the inherent requirements of the position as at the date of dismissal; 79

(5) Any incapacity of the Applicant to perform the inherent requirements of the role should be accommodated by an adjustment of a graduated return to full time hours. Both Dr Opperman and Dr Johnson certify the Applicant’s capacity to return on “at least” a part time basis, noting in particular that, following a telephone conversation with Dr Opperman, Dr Johnson amended his certificate of 22 October 2019 to remove the restriction as to day shift and update the pattern of work to reflect Dr Opperman’s advice; 80

(6) In referring the Applicant to Dr Opperman to assess the Applicant’s capacity to return to his pre-injury duties, the Respondent did not provide Dr Opperman with any information about the inherent requirements of the role such as the job description or information about the duties or hours. As such Dr Opperman, was unable to definitively conclude whether the Applicant had the capacity to undertake his substantive role and expressed the view that consideration be given to referring the Applicant for a formal functional capacity evaluation, “should concern exist as to Mr Macqueens capacity to undertake the inherent physical demands of a specific job”; 81 and

(7) In circumstances where a finding is made that the Applicant was capable of performing the inherent requirements of his role or would have been, subject to the reasonable adjustment of a graduated return to work, the Respondent prima facie contravened section 15(2)(c) of the Disability Discrimination Act 1992 (Cth). 82

Consideration

[46] My assessment of the Applicant’s capacity to perform the inherent requirements of the role is based on the written material in evidence, supplemented at hearing, and the oral submissions. As noted earlier in my decision, the extensive medical evidence is confined to written material as none of the medical practitioners were called to give evidence. In coming to my conclusion, I have adopted the approach in Jetstar.

[47] The parties are in dispute both as to the Applicant’s capacity to perform the inherent requirements of his Operator role at the time of termination and as to the Applicant’s future capacity to perform the inherent requirements of the role. For the reasons set out below, I have concluded that the Applicant was unable to perform the inherent requirements of the role at the time of termination. As to the Applicant’s future capacity, the medical evidence does not support a finding that the Applicant was unable to perform the role sometime in the future.

Applicant’s Capacity to Perform Inherent Requirements at Termination

[48] The Applicant’s role description sets out the following under “Position Requirements”: 83

“•  Ability to work a 12 hour rotating shift pattern, 2 x day shift, 2 x night shift, 4 days off

•  Good hand to eye coordination

•  Operators must comply with Nyrstar’s Standard Operating Procedures (SOP’s) and wear provided PPE

•  There are components of heavy manual handling activities, floor to waist bending and lifting, stair and ladder work, exposure to uneven floor surfaces with slip/trip hazards, working at heights, and exposure to loud and sudden noise.”

[49] It is apparent from the role description that the substantive requirements are a “12 hour rotating shift pattern” and involve some “heavy manual handling activities”. I have also carefully considered the Applicant’s evidence as to the Operator role which he submits is “70 % light work [and] 30%...light to moderate work…”. 84 The Respondent submits that heavy manual labour is part of the Operator role. To the extent that the Applicant seeks to diminish the role’s physical nature and portray it as capable of being performed on a basis that departs from the 12 hour rotating shift pattern detailed in the position description, I disagree. In my view, on the basis of the material before me, it is clear that the role of Operator involves at least some “heavy manual handling” and performance of duties as part of a 12 hour rotating shift pattern.

[50] I have examined the medical evidence before me. In essence, there appear to be three matters discussed by the medical practitioners warranting consideration in an assessment of the Applicant’s return to work. First, his ability to perform the physical demands of the role, second the requisite blood lead levels and third any residual cognitive impairment. There appears to be little dispute that the third issue was addressed by the report of Dr Martin (referred to at paragraph [20] above) who concluded that there “exists no cognitive barrier” to the Applicant’s returning to work and resuming his pre - injury duties. 85 To the extent that there was any inconsistency between the report of Dr Martin and Dr Johnson’s workers compensation certificate in July regarding the Applicant’s cognitive capacity, I note the concessions of Mr Wilson – Haffenden that:

•  Dr Martin’s report gave the Respondent “satisfaction” that the Applicant could undertake trial work;

•  in terminating the Applicant this matter was only noted in that “it was on his Workers Compensation certificate”; and

•  that “memory loss” was not a “primary reason for us not employing Mr MacQueen”. 86

[51] I also note the concession of Mr Foss that Dr Martin’s report satisfied himself and Dr Spearpoint with respect to the issue of memory impairment. 87

[52] The point of contention between the parties pertains in substance to the state of the medical evidence as to issues one and two. The Opperman Report records the Applicant’s “stated” willingness to return to work on “at least a part-time basis” and considering himself “to have at least some capacity to return to work in suitable duties”, noting examples of other employees working at the plant on a part time basis.

[53] The parties each referred me to aspects of the Opperman Report that they contend support their respective positions. I note that the report contains a list of material provided to Dr Opperman from which it is apparent that the Respondent did not provide Dr Opperman with a role description and that Dr Opperman’s assessment of the Applicant’s capacity to return to pre-injury duties appears to have been predicated on the role description provided to him verbally by the Applicant at the assessment on 12 September 2019. It is also worth noting, at this juncture, that Dr Opperman states in his report that he was “able to speak with Dr Johnston (sic)”, the Applicant’s treating practitioner, “in the early afternoon on 23 September 2019, and my recommendations for Mr MacQueen’s return to work were discussed.”. 88

[54] Under the heading “Risk of Recurrence, Re-Injury or Aggravation” Dr Opperman states “Mr MacQueen also reported some persistent fatigue following his cardiac event two years ago, and for which I would accept the recommendation given by his treating practitioner that he be restricted to working day shift only to be reasonable”. Further, under the heading “Barriers and Recommendations” Dr Opperman states “his capacity for working increased hours will primarily depend on the inherent physical demands of the role. he likely to have at least some difficulty in undertaking heavy work on a full-time basis at the present time but with such quite likely to be within his future capacity following an appropriate period of work hardening…in work which is predominantly sedentary to light in inherent physical demand I would accept Mr Macqueen to presently have the capacity to work full-time hours(sic)” 89 (emphasis added).

[55] As to lead in blood levels, I note the Respondent’s submission that Dr Cheng’s advice that “…Marko not works (sic) with heavy metals due to his increased risk with further worsening of his cardiovascular disease” is inconsistent with the Applicant’s evidence that such a limitation was restricted to his “rehabilitation period”. In my view, the advice of Dr Cheng on this point is of limited value given the age of Dr Cheng’s advice (at that time being more than 12 months old), the recommendations of Dr Opperman, both as to the Safe Work Australia guidelines and that the Applicant should have discretion as to his blood lead level, as well as the October Certificate which removed the specific requirement for blood lead levels to be below 5mcg/dL.

[56] In coming to my conclusion, I have also considered the Applicant’s return to work as a store person in August 2019, for approximately one month, cut short for reasons related to the Applicant’s blood lead levels having exceeded 5 mcg/dL. However, for the reasons discussed above, I consider this has limited relevance. There is contest between the parties as to content of the conversation between Dr Opperman and Dr Johnson on 23 September 2019. Given that neither Dr Johnson nor Dr Opperman was called to give evidence I am not able to resolve the conflict.

[57] On the basis of the evidence before me, I am satisfied that the Applicant was unable to perform the inherent requirements of the role at the time of termination. I have considered the Applicant’s suggestion that the letters of Dr Bishop dated 12 March 2020 and 14 April 2020, some five months following the termination, support a conclusion that the results of any examination and the findings of Dr Bishop at that time would have been “similar” as at the date of termination. The validity of that part of the Applicant’s submission rests on Dr Bishop’s speculation as to the state of the Applicant’s health at the time of termination. In my view, the submission is speculative and at best expresses an opinion as to what the results “may” have been. As such, I give them no weight in coming to my conclusion.

[58] For completeness, I note that I have considered the Applicant’s submission that the contents of Dr Johnson’s letter dated 6 February 2020, and the enclosed workers compensation certificate, “…deals with facts that existed at the date of dismissal” and therefore should be considered in reaching my conclusion. While I accept that this material has some relevance, I note that the workers compensation certificate dated 6 February 2020 only allows for a graduated return to work.

Applicant’s Future Capacity to Perform Inherent Requirements of Role

[59] There is no contest that, following an absence from work in excess of 24 months, the Respondent referred the Applicant to Dr Opperman to determine the Applicant’s capacity to return to his substantive role. I have made findings at paragraph [57] regarding the reports of Dr Bishop dated 12 March 2020 and 24 April 2020. In coming to my conclusion, I have taken into account the lengthy history outlined at paragraph [6] to [31], which is largely uncontested, and the fact that the Respondent has given the Applicant an inordinate amount of time to return to his pre injury duties.

[60] That said, on the basis of the evidence before me, I am not satisfied that the medical evidence supports a finding that the Applicant was unable to perform the inherent requirements of the role in the future. Dr Opperman notes that the Applicant’s ability to perform the substantive requirements of the role “will primarily depend on the inherent requirements of the role” and that a return to “undertaking heavy work on a full-time basis…was quite likely to be within his future capacity following a period of work hardening”. Dr Opperman goes on to note that, if the Respondent has further concerns as to the Applicant’s capacity to perform the inherent physical demands of a specific role, he recommends a referral for a formal functional capacity evaluation “against which the inherent physical demands of the specific work role could then be compared”

[61] The Respondent concedes that this recommendation was not followed, that Dr Opperman’s report indicated that the Applicant had the prospect of future capacity to perform his role and further that the conclusion that the Applicant was unlikely to achieve a sufficient level of recovery to enable him to perform his duties was “inconsistent” with the Opperman Report.  90

[62] On the basis of the above, I am not satisfied that the Applicant would not have been able to perform the inherent requirements of his role at some time in the future.

Reasonable Adjustments to Accommodate Incapacity

[63] The Applicant submits that an adjustment was “reasonable” in the form of permitting a graduated return to full time hours. The Respondent submits that “there was no prognosis regarding the applicant’s capacity, or the period before which, he maybe able to perform the inherent requirements of his role. This included the ability to work a full time 12 hour rotating shift roster and to perform the duties without restriction. Any return to work plan required the creation of a supernumerary position for an extended and uncertain period.” It follows then that such an adjustment would not be reasonable.

[64] The difficulty I have in accepting the Respondent’s submission is that, having chosen to send the Applicant to Dr Opperman for an opinion as to his capacity to return to his pre injury role and having chosen to arm Dr Opperman with little more than the Applicant’s assessment of the role requirements, it then effectively ignored Dr Opperman’s suggestion to consider a referral to have a functional capacity evaluation performed or make basic enquiries of Dr Opperman as to the anticipated period of work “hardening”. Despite the undeniably significant length of the Applicant’s absence from employment, the Respondent embarked on a course which, in my view, it failed to complete. While it is difficult to speculate, had the Respondent sought clarification from Dr Opperman as to the anticipated period of work hardening or followed his suggestion to undertake a functional capacity evaluation and waited for those results, the outcome in this case may have been entirely different.

[65] In these circumstances, I am unable to conclude that the Respondent could not make the necessary reasonable adjustments to reintegrate the Applicant for a period of work “hardening”, during which it could make the appropriate enquiries and properly determine the Applicant’s future capacity to perform the inherent requirements of the role.

[66] On the basis of the above, I am not satisfied that the Respondent had a valid reason to terminate the Applicant’s employment. This weighs in favour of a finding that the dismissal was unfair.

[67] For completeness, I note the Applicant’s submissions as to a prima face contravention of the Disability Discrimination Act 1992 (Cth) is not fully developed and, in any event, given my findings above at paragraph [66], need not be considered.

Section 387(b) – Notification of reason for dismissal

[68] The Respondent submits that the Applicant was notified of the reason for dismissal, being that “you are unable to meet the inherent requirements of the role of leach operator and that there are no suitable alternate roles available” during the termination meeting on 7 November 2020 and in the termination letter dated the same day. The Applicant does not seriously contest this submission. 91

[69] On the basis of the material before me, I find that the Applicant was notified of the reason for dismissal before his dismissal. This weighs against a finding that the dismissal was unfair.

Section 387(c) – Opportunity to respond

[70] The Applicant submits that he was not given an opportunity to respond to the reason for termination and that when he tried to respond, by providing the Respondent with the October Certificate, and discussing potential part-time work, Mr Wilson – Haffenden “refused to engage”. Mr Wilson – Haffenden, on his own evidence regarding the meeting on 7 November 2019, “chose not to receive it”. 92

[71] The Respondent submits that the Applicant was, at all material times, supported and represented by Mr Hassett of the CFMMEU and that, on his own evidence, the Applicant accepts that he was advised of the proposed review of his capacity to return to his substantive position and the alternatives if he was unable to do so on or about 29 July 2019.

[72] The opportunity referred to in section 387(c) must be a fair and adequate opportunity applied in a practical and common-sense way ensuring that the employee is treated fairly. There is no contest in this matter that the Applicant attempted to hand the Mr Wilson – Haffenden the updated workers compensation certificate of Dr Johnson. In order to have a reasonable “opportunity to respond” the Applicant needed to have the opportunity to attempt to rebut the Respondent’s conclusion that the dismissal was justified. On the basis of the material before me, I am not satisfied that the Applicant was given a reasonable opportunity to respond. This weighs in favour of a finding that the dismissal was unfair.

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

[73] I am satisfied that there was no refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal. This weighs against a finding that the dismissal was unfair.

Section 387(e) – Warning about unsatisfactory performance before dismissal

[74] In this instance the reasons for dismissal related to the Applicant’s ability to perform the inherent requirements of the role, rather than his performance, and so section 387(e) is not relevant.

Section 387(f)(g) - Size of enterprise and absence of dedicated human resource management specialists/expertise likely to impact on procedures followed

[75] This is a large employer with dedicated human resource management specialists. I have considered the submissions of the parties and consider this a neutral factor in this case.

Section 387(h) – Other relevant matters

[76] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal. 93 The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.94

[77] I have taken into account all the submissions put by both parties as to “other relevant matters” including the matters set out below.

Process was unreasonable, Personal & economic situation and length of service

[78] The Applicant advanced the following:

(1) On 13 September 2018, the Workers Rehabilitation and Compensation Tribunal made an order that a reasonably arguable case existed regarding the Applicant’s claim. Mr Foss did not refer the Applicant to an occupational physician or take any steps to review his capacity or restrictions at this time; 95

(2) Between the cessation of the return to work program in August 2018 and the referral to Dr Opperman in September 2019, the Respondent took no steps to assess the Applicant’s capacity and made no attempt to return him to work. The role of the Injury Management Coordinator is to ‘effect rehabilitation and safe return to work of employees’, but Mr Foss did not formally meet with the Applicant again after August 2018, and never met with him to discuss Dr Opperman’s report. Mr Wilson-Haffenden does not recall any meetings with the Applicant between September 2018 and July 2019; 96

(3) The dismissal was harsh because of its consequences for the personal and economic situation of the Applicant, particularly given his length of service of some 25 years. The Applicant is unemployed, despite actively looking for work since his dismissal and the only income the he has received since dismissal is the JobSeeker payment. The Applicant has had to re-finance his mortgage to cover his living expenses; 97 and

(4) The Applicant’s very significant length of service should have weighed in favour of the Respondent making its best attempt to accommodate a return to work. It was reasonably foreseeable that the Applicant’s narrow range of employment experience could adversely affect his prospects of finding alternative employment.  98

[79] The Respondent submits that length of service, financial impact and work record do not themselves render a decision to terminate harsh and that the health event that impacted the Applicant’s work capacity was unfortunate but was responded to by the Respondent in a “sympathetic and supportive manner for two years”. 99 The Respondent further submits that the Applicant was given a “fair go all round” through being provided with ongoing paid personal leave (and then leave without pay) for an extended period.100 The Respondent also submits that consideration should be given to the fact that any position to which the Applicant “may be appointed will require the Respondent to create a supernumery day shift position on a permanent and ongoing basis”.101

[80] I have had regard to these submissions in coming to my conclusion.

Conclusion

[81] Having considered the material before me and the matters identified in section 387 of the Act, I find that the dismissal of the Applicant was harsh, unjust and unreasonable. Although, at the time of dismissal, the Applicant was unable to perform the inherent requirements of his substantive duties as an Operator his dismissal was harsh, unjust and unreasonable because:

(1) the medical evidence does not support a finding that the Applicant was not able to perform the inherent requirements of the substantive position at some time in the future as discussed at paragraphs [59] to [62] above;

(2) the evidence does not support a finding that the Respondent was not able to make reasonable adjustments to accommodate the Applicant as discussed at paragraphs [63] to [65] above.

(3) the Respondent failed to give the Applicant a proper opportunity to respond to the reason for dismissal by declining to consider Dr Johnson’s updated certificate before terminating the Applicant as discussed at paragraphs [70] to [72] above.

[82] While I agree with the Respondent’s characterisation that it took a “sympathetic and supportive” approach to the Applicant in the period following his health event, having considered each of the matters specified in section 387 of the Act, I find that the termination of the Applicant was harsh, unjust and unreasonable.

Remedy

[83] The Applicant submits that the parties should be given an opportunity to provide further submissions as to remedy and that there was “benefit from some further discussion about remedy before there's an order as to remedy made”. 102 The Respondent did not express any opposition to this approach.

[84] I will call the matter on for a Mention shortly to discuss a timetable for parties to make brief submissions as to remedy.

[85] In the interim, I would expect that the parties will confer as to the further disposition of this matter. The parties may wish to consider whether the matter can be resolved between them, having regard to the reasons for my decision. If the parties consider that the assistance of a member would be of utility, they should make such a request to my chambers and it will be made available.

COMMISSIONER

Appearances:

Ms E. Palmer of the Construction, Forestry, Maritime, Mining and Energy Union for the Applicant

Ms S. Zeitz of Zeitz Workplace Lawyers for the Respondent

Hearing details:

14 May 2020 and 2 July 2020 (via Skype and Microsoft Teams)

14 September 2020 (via telephone)

Final written submissions:

Respondent – 14 September 2020

Applicant – 15 September 2020

Printed by authority of the Commonwealth Government Printer

<PR724616>

 1   Witness Statement of Marko MacQueen dated 7 February 2020 (First MacQueen Statement) at A18.

 2   Form F2 dated 28 November 2019.

 3   First MacQueen Statement at [2] – [4].

 4   Ibid at [12].

 5   Ibid at [25].

 6   Witness Statement of Timothy Wilson-Haffenden at TWH – 1.

 7   First MacQueen Statement at A2.

 8   Ibid at A2.

 9   Ibid at A3.

 10   Ibid at A4.

 11   Ibid at A5.

 12   Ibid at [34].

 13   Ibid at A10.

 14   Ibid at A7.

 15   Ibid at A11.

 16   Ibid at A11.

 17   Ibid at A9.

 18   Ibid at A12.

 19   Ibid at A13.

 20   Ibid at A14.

 21   Ibid at A16.

 22   Ibid at A17.

 23   Ibid at [71], [74].

 24   Ibid at [85]; Witness Statement of Richard Xavier Hassett dated 7 February 2020 at [13] – [14].

 25   Transcript PN1693.

 26   First MacQueen Statement at A18.

 27   Ibid at A19.

 28   Supplementary Witness Statement of Marko MacQueen dated April 2020 at A22.

 29   [2001] FCA 1031.

 30   Ibid [14].

 31   [2018] FWCFB 1005.

 32   [2018] FWCFB 3989, [62].

 33   [2018] FWCFB 1005, [77].

 34   [2018] FWCFB 3989.

 35   [2018] FWCFB 3989 [64].

 36   [2013] FWCFB 9075 [53].

 37   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 38   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 39   Ibid.

 40   Respondent’s Amended Final Submissions dated 31 August 2020 (Respondent’s Amended Final Submissions) at [24], [25].

 41   Ibid at [18].

 42   Ibid at [26(c)].

 43   Ibid at [6(p)].

 44   Ibid at [6(f)(ii)].

 45   Ibid at [24(a)].

 46   Ibid at [24(b)].

 47   Ibid at [24(c)].

 48   Ibid at [31].

 49   Ibid at [25(a)].

 50   Ibid at [25(b)] – [25(c)].

 51   Ibid at [25(d)].

 52   Ibid at [26(e)].

 53   Ibid at [26(f)].

 54   Ibid at [26(f)].

 55   Ibid at [26(k)].

 56   Ibid at [26(l)].

 57   Ibid at [26(m)].

 58   Ibid at [27].

 59   Ibid at [27(c)(iii)].

 60   Ibid [27(d)].

 61   Ibid at [33].

 62   Ibid at [6(q)].

 63   Ibid at [24].

 64   Ibid at [25].

 65   Ibid at [27].

 66   Ibid at [28].

 67   Ibid at [30].

 68   Ibid at [35].

 69   Applicant’s Amended Closing Submissions dated 7 September 2020 (Applicant’s Amended Closing Submissions) at [27].

 70   Ibid at [29].

 71   Ibid.

 72   Ibid at [21].

 73   Ibid at [44] - [46].

 74   Ibid at [52] – [53].

 75   Ibid at [13] - [15].

 76   Ibid at [17] – [18].

 77   Ibid at [18].

 78   Ibid at [33].

 79   Ibid at [36].

 80   Ibid at [47].

 81   Ibid at [56].

 82   Ibid at [61].

 83   First MacQueen Statement at A1.

 84   Supplementary Witness Statement of Marko MacQueen dated April 2020 at [24] – [25].

 85   First MacQueen Statement at A11.

 86   Transcript PN1535, PN1543, PN1575.

 87   Transcript PN1145.

 88   First MacQueen Statement at A16.

 89   Ibid.

 90   Transcript PN1244, PN1332, PN1388, PN1773,

 91   Applicant’s Amended Closing Submissions at [63].

 92   Transcript PN1693.

 93   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [41].

 94   Ibid.

 95   Applicant’s Amended Closing Submissions at [66].

 96   Ibid at [68].

 97   Ibid at [76].

 98   Ibid.

 99   Respondent’s Amended Final Submissions at [44].

 100   Ibid at [46].

 101   Ibid at [42].

 102   Transcript PN49.