Anthony Montana v DP World Sydney Limited - [2023] FWC 439

[2023] FWC 439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Montana
v

DP World Sydney Limited

(U2022/9219)

COMMISSIONER MCKENNA

SYDNEY, 28 MARCH 2023

Application for an unfair dismissal remedy

Anthony Montana has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his termination of employment by DP World Sydney Limited (“DPW”).

Preliminary matters

As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that the application was made within time; Mr Montana is a person who was protected from unfair dismissal; DPW is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.

Background

DPW is a stevedoring company with operations in Port Botany, New South Wales. Mr Montana was employed by DPW as a stevedore at its Port Botany terminal from November 2009 to the date he was summarily dismissed on 23 August 2022. By way of background, on 29 June 2021 Mr Montana sustained a “very serious” injury while at home – being a laceration to his left forearm that left Mr Montana with what he described as “residual thumb numbness, rendering [him] unable to safely operate a forklift or a Rubber Tired Gantry … crane”. As the injury Mr Montana sustained was not work-related, workers’ compensation rights and obligations were not engaged. Mr Montana asked that he be allowed to return to work on light duties, but was informed by DPW that he was ineligible for light duties because the injury was not work-related. Although Mr Montana was not entitled to workers’ compensation benefits following the non-work injury, clause 18.8 of the DP World Sydney Enterprise Agreement 2020 (“enterprise agreement”) contains certain income protection provisions where an employee is unable to attend for work because of personal injury or illness. Following the injury and a waiting period, Mr Montana periodically provided medical certificates and accessed the income protection payments that are conferred by the enterprise agreement. Mr Montana remained off work due to his injury until he was summarily dismissed on 23 August 2022 for serious misconduct concerning: (a) conduct related to attendance at an independent medical examination (“IME”); and (b) a comment allegedly made to his supervisor on the morning of the show cause meeting.

Circumstances preceding the dismissal

On 7 July 2022, Brendan Pak, who was formerly employed as a DPW Human Resources Advisor (and who did not give evidence in the proceedings), apparently advised Mr Montana in a telephone conversation that DPW required information about the injury from his orthopaedic and hand surgeon, Dr Damian Ryan. That same day, Mr Pak sent an email to Mr Montana which confirmed matters in the following way:

“I refer to our conversation on 7 July 2022 [in] which I advised that the Company requires further medical information from your treating medical practitioner Dr Damian Ryan regarding your current fitness for work and whether you are fit to return to pre-injury position as a Stevedore at DP World, Sydney Terminal.
You are required to sign the authority enclosed with this letter and provide a copy either directly to Dr Ryan or myself.
Once we have received a copy of Dr Ryan’s report, we will be in contact with you to discuss the next steps.”

The authority that Mr Pak advised Mr Montana that he was to sign read:

“Dear Dr Ryan,
I authorize you to provide to DP World Sydney a report relating to my ability to perform the duties involved with my employment as a Stevedore.
Please forward the Report to the address below.
Brendan Pak, Human Resources advisor
By Email: [email address]
Or
By Fax: [fax number]
Yours faithfully,
Anthony Montana”.

The evidence in DPW’s case was that on the same day that Mr Pak sent the email confirming those matters (being that DPW required medical information from Dr Ryan and requiring Mr Montana to sign the authority for that information to be provided to DPW), Mr Montana then subsequently returned the signed authority.
On 7 July 2022, Mr Pak also sent correspondence to Dr Ryan, asking for information from him to assist DPW “to make an informed decision about Mr Montana’s current fitness for work and whether he is fit to return to his normal, pre-injury duties”. Among other matters, the correspondence from Mr Pak to Dr Ryan:

·   noted aspects of a medical certificate from Dr Ryan dated 27 April 2022, where Dr Ryan was quoted as having written that Mr Montana “is certified to perform light duties” and “Some degree of abnormality is likely to persist in the long term”;
·   noted that DPW has certain duties of care, including a duty to ensure that employees have the capacity and ability to fulfil “all of the inherent requirements” of employment with DPW;
·   advised that Dr Ryan’s assessment “is required to ensure Mr Montana is able to fulfil all of the inherent requirements of his employment with DP World Sydney and is fit to return to his pre-injury/illness work duties”;
·   set out certain background information concerning Mr Montana, the medical certificates and “Functional Workplace duty information” related to the inherent requirements for a general stevedore, and what were described as Mr Montana’s tasks/duties requiring certain functional capacities. Mr Pak’s correspondence to Dr Ryan also included several pages of associated annexures about job-related matters for employees performing the tasks of “Bus Driver”, “Forklift”, “General Duties Clerk”, “Internal Transport Vehicle”, “Lashing”, “Rubber Tyre Gantry Crane” and “Rubber Tyre Gantry Crane – Kalmar”.

Mr Pak set out as series of questions to Dr Ryan to answer, which read:

“Taking into account the role requirements, work environment, could you please provide a comprehensive medical report and provide your medical opinion and ensure your report addresses the following questions:

1. What are your current clinical findings and diagnosis of Mr Montana [sic] current condition?

2. In your opinion and with respect to your knowledge of the workplace and the task analysis, what incapacity does Mr Montana have to perform his job as a Stevedore safely?

·Please specify current physical restrictions in relation to any particular functions of the pre-injury position

3. Are these restrictions permanent? If not, when would you expect that he fully recovers from his current condition?

4. In your opinion, an estimate of how long it would be before Mr Montana would be capable of returning to the pre-injury position?

5. Do you believe Mr Montana will ever have the capacity to return to his pre-injury position as a Stevedore?

6. Do you believe Mr Montana will require further treatment? If so, what are the proposed timeframes for this treatment and the prospects of that treatment resulting Mr Montana being able to continue to perform his pre-injury duties as a Stevedore?

7. In your opinion is there any further assistance that DP World Sydney could offer Mr Montana in order for him to safely perform the pre-injury position?

Mr Montana will provide you with an authority form containing his consent to release information.”

DPW/Mr Pak did not receive a response from Dr Ryan. As to that, the evidence in DPW’s case was that Mr Montana returned the signed authority to DPW. Moreover, Mr Pak had advised Mr Montana that he was required to sign the authority and Mr Montana was given the option to provide a copy either directly to Dr Ryan or to Mr Pak – opting, it appears, to provide it to Mr Pak. There was no evidence that Mr Pak/DPW provided Mr Montana’s signed authority to Dr Ryan after Mr Montana signed it and provided it to Mr Pak/DPW. Moreover, there was no evidence that Mr Montana was (separately) instructed by DPW to provide the authority to Dr Ryan, albeit the correspondence from Mr Pak/DPW to Dr Ryan separately asserted towards the end of the letter that “Mr Montana will provide you with an authority form containing his consent to release information”. In passing, there was no evidence as to how Dr Ryan was to be paid for his professional time that would have been involved in providing the information DPW sought from him about Mr Montana, in circumstances where this was not, for example, a workers’ compensation-covered injury. I set these matters out because part of DPW’s case referred to the lack of a response from Dr Ryan in ways that appeared critical of Mr Montana and his approach to participating in the provision of medical information.

In any event, against the background of a lack of response from Dr Ryan to the correspondence from DPW/Mr Pak seeking information about Mr Montana, Mr Pak apparently advised Mr Montana in a telephone call on 2 August 2022 that DPW required him to attend an IME with Dr Michael McGlynn OAM. Dr McGlynn was previously a specialist plastic and reconstructive surgeon, and hand surgeon; he retired from active surgical practice eight years ago and now works full-time as a medico-legal advisor, including with referrals from an organisation named Medicins Legale. It was Medicins Legale which was, in due course and on behalf of DPW, to organise the appointment for Mr Montana’s IME with Dr McGlynn

On 2 August 2022, Mr Pak sent correspondence to Mr Montana which read in part:

“I refer to our conversation on 2 August 2022 where you have been advised that you are required to attend an IME appointment as the Company did not receive a response from your treating doctor, Dr Damian Ryan, to obtain further information around your hand injury.

We require further information around your condition and how it impacts on your ability to perform the requirements of your position as Stevedore.
In order to assess your fitness for work and understand your ability to perform your substantive position without further risk to yourself, you are directed to attend a Fitness for Work Assessment as follows:
[Table with the details about the appointment]
[Covid-19-related information]

At the end of your assessment, the treating medical professional will provide DP World with a report responding to a number of specific questions which have been asked. You will need to complete the enclosed release and take a copy with you to your appointment.
Please bring with you to this appointment any relevant x-rays, MRIs, referrals or any other information to assist in assessing your fitness for work.
If it is not possible for you to attend your appointment, please notify myself as soon as possible so alternate arrangements can be made. Please note, if you do not attend the appointment and do not have a reasonable excuse, you may be liable for disciplinary action, which may include up to the termination of employment. …”. (Bold in original)

On 2 August 2022, Mr Pak also sent correspondence to Dr McGlynn confirming the upcoming appointment with Mr Montana. The correspondence set out information and questions for Dr McGlynn in terms broadly similar to, but not identical to, the earlier correspondence that Mr Pak had sent to Dr Ryan. The correspondence sought a “detailed report” from Dr McGlynn on identified topics. The correspondence also (apparently) attached documentation concerning “Functional Duties” and “Medical Certificates”, although those attachments were not put into evidence by DPW.

On 4 August 2022, Mr Montana sent an email to Mr Pak, indicating that he did not understand why he needed to attend an IME. Mr Montana’s email, in a way that is not entirely clear in meaning on the face of the document, also referred to the authority for Dr McGlynn to release information to DPW in connection with the IME (i.e., a second authority, rather than the earlier authority he had signed and returned to DPW which authorised Dr Ryan to release information to DPW). Mr Montana’s email read (as written):

“I don’t understand why I need a independent examination when all medical and surgeons documents have been provided to your requirements. I see attached is a consent form for me to sign, I cannot sign that as DR Ryan has provided to me and passed to you.
Thanks”

On 5 August 2022, Mr Pak sent an email to Mr Montana which relevantly read:

“We require further medical information around your injury.
Based on the medical information we have received so far, you are only able to perform light work duties.
Therefore, we’re directing you to an independent medical examination.”

Mr Montana then sent an email to Mr Pak on 5 August 2022 which read (as written):

“I don’t like the way you use your words ( directing ). Much better wording can be used apart from dictate to me.
Check your records more than just a certificate has been provided”.

In turn, Mr Pak sent a further email to Mr Montana which relevantly read (as written):

“As previously discussed via phone and email, we do require you to attend the appointment on Monday, 8 August 2022.

As the Company requires further information regarding your non work related injury.”

While the tone of Mr Montana’s email to Mr Pak was regrettable and/or inappropriate, there was no evidence of any further communications between Mr Montana and DPW following the immediately preceding reply email from Mr Pak confirming attendance was required at the IME.

The medical appointment on 8 August 2022

On 8 August 2022, Mr Montana attended for the IME appointment with Dr McGlynn. What unfolded in connection with Mr Montana’s attendance at the appointment with Dr McGlynn, or DPW’s assessment of what occurred, was to be the catalyst of the ensuing summary dismissal on 23 August 2022.

I will return later in the decision to the evidentiary accounts by Mr Montana and Dr McGlynn of what happened during the IME appointment and related matters. Before doing so, I will first recount some of the key developments that occurred after the meeting.

After the appointment was terminated, Mr Montana immediately contacted DPW by telephone. Mr Pak later returned Mr Montana’s call. Mr Pak set out in writing the following matters concerning the telephone conversation he had with Mr Montana (as written by Mr Pak):

“[Anthony Montana] Advised at 10:30am on 8 August 2022:
I went to see Dr Michael McGlynn on 8 August 2022
The appointment was ended as the Surgeon was putting his hands on me. The Doctor advised that he needed to touch me.
The doctor then said we’re ending this meeting.
Anthony continued to say on the phone to me:
Difference between examining and pulling me towards the scale to weigh my weight.
Doing a medical assessment on somebody does not mean grabbing and putting on the scale.
there is difference. examining is different.
If you got another doctor to not put his hands on me and examining me. I got not a problem.
He will email us the events that took place this morning.
[Brendan Pak] Advised:
We will wait for your email to review.”

Shortly thereafter on 8 August 2022, Mr Montana sent an email to Mr Pak which read (as written):

“Hi
I just went to see your doctor. Visit was cancelled as your doctor ( DP World) putting his hands on me to pull me towards a weight scale. I told him to get his hands off me and stop pulling me.
At anytime I go to a doctor is to get examined, not to be grabbed and pulled along.
I told the Doctor that and there is a difference, he then cancelled the appointment.
I’m happy to go to another Dr to do my examination for DP World.
Anthony”

Later on that same day of 8 August 2022, Mr Pak sent an acknowledgement email to Mr Montana and advised, among other matters, that “We are currently investigating into your allegation made against Dr Michael McGlynn at your appointment and will be in touch with you in due course.”

What then happened as to the investigation of Mr Montana’s allegation was set out in a hearsay-on-hearsay way in the evidence of Scott Eadie, DPW’s General Manager Operations, as to what occurred on 9 August 2022. In the extract of the Mr Eadie’s evidence-in-chief below, “Anthony” is Mr Montana and “Karlie” is Karlie Hucker-Stewart, DPW’s Human Resources Manager. Mr Eadie’s evidence read:

“22. Due to concerns about what had transpired between Anthony and Dr McGlynn, Karlie contacted Medicins Legale, the third party that organised the independent medical examination by Dr McGlynn. Karlie spoke to Brandon Richards. Brendan [sic] told Karlie that Dr McGlynn had told him that Anthony had acted aggressively, and that Dr McGlynn had never, in his 51 years’ experience in the medical profession, felt so threatened by a patient.”

Also on 9 August 2022, Mr Montana made a complaint/report at Sutherland Police Station about Dr McGlynn allegedly having assaulted him. A statement in such respects was made and signed that day. A police officer separately spoke with and/or interviewed Dr McGlynn in relation the matter.

On 9 August 2022, a police officer sent correspondence to Ms Hucker-Stewart, which relevantly read:

“Thankyou for calling me back today. As I said in my discussion with you, Anthony MONTANA reported an assault [to me] today by Dr Michael McGLYNN where he was required to have a medical assessment done. I have not identified any wrong doing on behalf of Dr McGLYNN and I have created event number [number] which reflects my finding.
If you need to contact me regarding this matter, please feel free to send me an email.”

On 9 August 2022, Ms Hucker-Stewart sent an email to Mr Eadie, which relevantly read (as written):
“Further to our conversation:
Yesterday Anthony Montana was booked into see Dr Michael McGlynn for an independent medical examination. The reason for sending Anthony was due to the limited information received from his treating practitioner.
Please find below events that took place prior to the consultation, at the consultation and post consultation.
1.   On Friday 5 August 2022 – Anthony emailed Brendan asking why he was required to attend the IME (see attached email)
2.   On Monday 8 August 2022 – Anthony called Brendan to advise that allegedly the Doctor put his hands on him (see Brendan’s file notes)
I spoke to Brendan and advised to follow up with Medicins legal on the events that occurred.
3.   On Tuesday 9 August 2022 – I called Medicins legal and spoke with Brandon Richards, who received an account from Dr McGlynn. In short – Anthony was 5 minutes late to the appointment. Dr McGlynn checked Anthony’s height and then asked him to be weighted. With the digital scales they need to go to ‘zero’ before stepping onto them. Apparently, the Doctor put his hand on Anthony’s elbow to stop him from getting onto the scales. Anthony then acted aggressively and angry. The doctor has been in the medical profession since 1971 and has never felt as threatened by a patient than with Anthony. The doctor immediately ceased the consultation and doesn’t want to see him again.
I have requested Brandon to ask Dr McGlynn to put a statement in writing.
4.   On Tuesday 9 August 2022 – Senior Constable Michael Quick from Sutherland Police station left a voice message for Brendan Pak to call him. I returned the call and spoke to Senior Constable who advised that Anthony Montana went to the station this morning to report he was assaulted by a Doctor which the company asked him to see. The Senior Constable asked if he had any mental health issues, which I advised I wasn’t aware. The appointment was a physical assessment. The Constable asked Anthony Montana if he was on IP and who the provider was, which Anthony was unable to answer. The Senior Constable advised that he has spoken to the doctor (The Constable was able to name him), and he had an obligation to inform all parties including the Company as we were mentioned by Anthony. The Constable advised that he won’t be pursing. The Senior Constable advised he will email me a report number.
As I receive the information, I will forward to you.
I am in the process of arranging a meeting with Kathryn to discuss next steps”.

By letter dated 11 August 2022, Mr Eadie advised Mr Montana of matters including the following. Mr Eadie relevantly gave Mr Montana an opportunity to respond to allegations about the itemised dot-pointed allegations in the extract below (bold in original):

“Incident – Opportunity to respond

On Monday 8 August 2022, you attended an independent medical examination (IME) with Dr Michael McGlynn.
Since this IME, I have been made aware to the following conduct:

·During the IME, when the Doctor allegedly touched you, that you became aggressive towards him;
·As a result of your conduct, the Doctor terminated the appointment, and the IME didn’t not occur;
·You subsequently made a complaint to the Sutherland Police alleging the Doctor assaulted you.

DP World takes these allegations seriously, and accordingly has commenced an investigation.
DP World endeavours to provide a work environment of integrity, equity and respect for all. DP World is committed to a safe, healthy and productive environment where employees and others in the workplace are treated fairly and with respect.
Under our Code of Conduct you have an obligation to not engage in unacceptable workplace behaviour which includes any behaviour that would be offensive, intimidating, belittling, abusive, threatening or harmful to an individual or group of people.
If substantiated, these allegations may constitute a breach of these policies and procedures.”

Mr Eadie’s letter advised Mr Montana to provide a written response by 16 August 2022.

In correspondence dated 12 August 2022 (which Dr McGlynn sent to DPW after a request to him made via Medicins Legale), Dr McGlynn wrote as follows to Ms Hucker-Stewart (bold in original; yellow highlighting not reproduced; formal parts omitted):

“Re  : Anthony Montana
Date of Birth   : [date]
Claim No  : [number]
Date of consult:   : 8/08/22
Appointment Commenced            : 09:12 (arrived 09:10 for 09:00 appointment)
Appointment Concluded                 : 09:15
Date of Injury:   : 7/07/21 [sic; 29/06/21]
____________________________________________________________________
Private and Confidential – Addressee Only
Not to be disclosed to Mr Montana or any third parties
I refer to the letter dated 2 August 2022, signed by Brendan Pak Human Resources Advisor DP World seeking an independent medical examination of your employee, Mr Anthony Montana. Also to your email to Medicins Legale on 12 August 2022 requesting a statement from me regarding the events that occurred on Monday 12 August 2022. As you may be aware, the examination was terminated shortly after commencement due to Mr Montana’s behaviour.

I have set out the incident which occurred for your information. Due to concerns for my physical safety, I request that this report not be disclosed to Mr Montana or his representatives without my express permission.
At 9.10am on 8 August 2022, Mr Montana attended for his appointment scheduled for 9.00am. At the commencement of the appointment, I explained to him I would need to record his height and weight. While standing beside Mr Montana, I asked him to stand on the scales at the same time touching his right arm with my left hand near the elbow. This is my usual practice to support patients as they stand on the scales to reduce the risk of falling. Mr Montana reacted immediately on my touch with sudden movement away from me saying he did not want to be touched and that touching him without permission was assault.
Unfortunately, Mr Montana continued to escalate; I felt threatened; the appointment terminated approximately 3 minutes after commencing. I note that Mr Montana subsequently made a complaint to police who sought information from me.
I have advised Medicins Legale not to re-book Mr Montana with me. I apologise for being unable to complete the independent assessment, as requested.”

Mr Montana’s emailed response to Mr Eadie’s correspondence dated 11 August 2022 giving him an opportunity to respond was sent to Mr Eadie on 15 August 2022. It attached his statement to the police and event number information. The email read (as written):

“Hi Scott
As instructed I attended the IME in good faith. I allege that the doctor has breached facets listed in your Code of Conduct hence my formal complaint to the police. I do not see this as a workplace issue however I have attached my Police statement and event number for transparency.
I remain committed to the process of returning to work and I am more than willing to attend any other doctor of your choice.
Reagrds
Anthony”.

On 19 August 2022, Mr Eadie next advised Mr Montana of a meeting scheduled for 23 August 2022 to show cause why he should not be dismissed. The letter read, in part (bold and italics in original):
“Your Role and Obligations

You are employed by DP World as a Stevedore.
As part of your contract of employment, you are required to:

· act in DP World’ [sic] best interests and use your best efforts to promote the interest of DP World;
· comply with DP World’ [sic] policies and procedures.
Under or Code of Conduct you have an obligation to not engage in unacceptable workplace behaviour which includes any behaviour that would be offensive, intimidating, belittling, abuse, threatening or harmful to an individual or group of people.

Investigation Findings and Allegations

As you are aware, DP World has been investigating allegations surrounding your conduct during an IME with Dr McGlynn.

You were advised of the following allegations:
·   During the IME, when the Doctor allegedly touched you, that you became aggressive towards him;
·   As a result of your conduct, the Doctor terminated the appointment, and the IME didn’t not occur;
·   You subsequently made a complaint to the Sutherland Police alleging the Doctor assaulted you.

In response, you provided the following statement via email:

“As instructed I attended the IME in good faith. I allege that the doctor has breached facets listed in your Code of Conduct hence my formal complaint to the police. I do not see this as a workplace issue however I have attached my Police statement and event number for transparency. I remain committed to the process of returning to work and I am more than willing to attend any other doctor of your choice.”

You also provided a copy of your Statement to Police and the Event Number.

Having reviewed all of the information, I am satisfied that the Allegations have been substantiated.
The Allegations individually and collectively amount to serious misconduct under your contract and would justify summary dismissal.
In light of the above information, DP World holds the view that you have engaged in serious misconduct and you have acted contrary DP World’ [sic] policies and values. As a result of your conduct, DP World has lost trust and confidence in your ability to discharge your duties and functions in a matter [sic] which does not impact on the reputation, viability, or profitability of our business.

Request to attend meeting
As a result of the investigation, the Company would like you to show cause as to why its should not terminate your employment for serious misconduct.
You are required to attend a meeting with me and accompanied by Karlie Hucker-Stewart, Human Resources Manager as follows: [details for meeting on 23 August 2022].
I confirm this is serious. During this meeting the Company will consider your response and any further information you can provide in relation to this matter which may assist the Company in its decision in relation to your ongoing employment.
Following receipt of your response, the Company will decide whether disciplinary action will be taken, this may include up to termination of your employment.
If you do not participate in this process, the Company will consider all relevant matter and decide on the information before it.”

The show cause meeting was held on 23 August 2022. In attendance were Mr Montana and his union representative/support person, namely, Brad Dunn of the Construction, Forestry, Maritime, Mining and Energy Union (The Maritime Union of Australia Division) (“MUA”). Mr Eadie and Ms Hucker-Stewart represented DPW. Various matters were discussed, some of which I will return to. At some time between 10-30 minutes after the conclusion of the show cause meeting, Mr Eadie informed Mr Montana that he was terminating his employment, effective immediately, for serious misconduct. There was no evidence that anything more than advice concerning the summary dismissal was conveyed by Mr Eadie to Mr Montana on 23 August 2022, i.e., there was no evidence of any reasons or explanation contemporaneously being given for the decision.

Mr Eadie subsequently sent correspondence dated 26 August 2022 about the dismissal. To avoid doubt, Mr Eadie’s correspondence is not what ordinarily might be described as the “dismissal letter”. That is, the summary dismissal had already been advised to Mr Montana/effected not long after the conclusion of the show cause meeting on 23 August 2022. This is so notwithstanding comments in Mr Eadie’s letter of 26 August 2022 such as “I have now had the opportunity to consider your response and I have taken it into account in making my decision” and “In light of the seriousness of this matter, I have made the decision to terminate your employment for serious misconduct, effective 23 August 2022” (in circumstances, it may be noted, where a dismissal cannot be effected with a retrospective date). Mr Eadie’s letter read, in part:

“I write to confirm the matters discussed with you during out meeting on 23 August 2022. In attendance at this meeting with me was Karlie Hucker-Stewart, HR Manager. Your support person was Brad Dunn, Assistant Branch Secretary, MUA.
I also refer to the show cause letter dated 11 August 2022 (see attached), in which you were asked to show cause as to why your employment should not be terminated and invited to provide any further information you wanted me to consider as part of the investigation and review of your ongoing employment.
Show Cause Response
On 15 August 2022 you provided me with your written response. Your response included:
· Your statement from the Police and the Police Event number.
· The following statement:
As instructed I attended the IME in good faith. I allege that the doctor has breached facets listed in your Code of Conduct hence my formal complaint to the police. I do not see this as a workplace issue however I have attached my Police statement and event number for transparency. I remain committed to the process of returning to work and I am more than willing to attend any other doctor of your choice.
At the meeting on 23 August 2022, I provided you with a further opportunity to respond. You reiterated your account of events that took place at the Independent Medical examination (IME).
I have now had the opportunity to consider your response and I have taken it into account in making my decision.
Furthermore, it was raised with me in one of the meeting breaks that prior to our meeting, you allegedly accused one of the Operations Supervisors of working in an unethical way. You deny that this occurred. This subsequent event, raises concerns about your ability to interact with persons in a way which is consistent with our expectations and code of conduct.

Decision

I have taken into account the seriousness of these matters, your responses, the matters you have raised in response, your length of service, and the impact that this decision will have on you.

I have also taken into account your prior disciplinary history being Two (2) Final Warnings, three (3) Formal Warnings, Absence Management Plan (AMP) and Five (5) File notes.
Unfortunately, despite the matters you have raised, your conduct goes against the trust and confidence we can have in you to perform your position to the standard expected of a Stevedore.
Further, your conduct:

·   Is behaviour that does not demonstrate that you have acted in DP World’ [sic] best interest nor that you have used the best efforts to promote the interest of DP World;
·   Is inconsistent with our policies and procedures
·   Demonstrates a failure to comply with the DP World Code of Conduct. Namely that you have an obligation to not engage in unacceptable workplace behaviour which includes any behaviour that would be offensive, intimidating, belittling, abusive, threatening or harmful to an individual or group of people.
·   Was in breach of a lawful reasonable instruction to attend for an IME for us to determine your fitness to perform the inherent requirements of your role. Your conduct during the IME meant the consultation was terminated.

In light of the seriousness of this matter, I have made the decision to terminate your employment for serious misconduct, effective 23 August 2022. …”.

Consideration

(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)

As noted earlier, two matters were relied on by DPW in summarily dismissing Mr Montana for serious misconduct – being: conduct related to attendance at an IME; and a comment allegedly made to his supervisor. I will deal first with the IME and then the comment to the supervisor.

A. The IME

In considering whether there was a valid reason for the dismissal related to Mr Montana’s conduct concerning the IME with Dr McGlynn, I note the evidence and/or submissions concerning the following matters – and, where relevant, make findings based on what was advanced in the case.
DPW sent correspondence to Mr Montana’s own surgeon, Dr Ryan, seeking certain detailed medical information. For reasons which were not addressed in the evidence and/or submissions, Dr Ryan did not respond to that correspondence. Mr Montana’s evidence was to the effect that he personally did not know what went backwards and forth/was discussed, if anything, between DPW and Dr Ryan, i.e., he could not “say or guess”, other than to say that DPW informed him it had not received a response from Dr Ryan. As to that, there is no evidence to indicate that Mr Pak/DPW provided Mr Montana’s authority to Dr Ryan after Mr Montana had signed the document and returned it to Mr Pak/DPW. Moreover, Mr Pak’s correspondence otherwise asserted to Dr Ryan that Mr Montana “will” provide him with an authority form containing his consent to release information – albeit the signed authority was provided by Mr Montana to Mr Pak/DPW and there is no evidence that Mr Pak/DPW otherwise advised or directed Mr Montana to provide the authority to Dr Ryan. There was some criticism and/or inherent criticism in aspects of DPW’s case that Dr Ryan had not responded to DPW’s request for information (e.g., submissions that read “after Mr Montana failed to provide updated medical information about his injury, DP World directed him to attend an independent medical examination” (my underline) with Dr McGlynn). I think there is an available inference that Dr Ryan did not respond to DPW’s request for medical information about Mr Montana because Mr Pak/DPW did not provide Mr Montana’s signed authority to Dr Ryan and, otherwise, advised Dr Ryan that Mr Montana will provide him with an authority form with consent to release information to DPW. Other than noting the underlying and potentially unfair criticism about a failure to provide updated medical information to DPW, nothing appears to turn on this, because it would have been open for DPW to direct Mr Montana to attend an IME regardless of whether Dr Ryan had provided a response to DPW. I mention this matter by way of backdrop, because the view of DPW appears to have proceeded against a background that Mr Montana was being generally uncooperative concerning medical information-related matters – being a view that was also separately informed by Mr Montana’s email to Mr Pak cavilling about being directed to attend the IME (being a matter I will address later).
In any event, DPW determined to direct Mr Montana to attend an IME. The IME was a work-related appointment, which was booked through Medicins Legale on behalf of DPW. It was plainly a work-related appointment because Mr Montana was absent from work and in receipt of enterprise agreement-specific income protection insurance payments - and the IME concerned an assessment of Mr Montana’s fitness to return to work at DPW.
Mr Montana’s emailed response to DPW indicated that the advice to attend an IME (specifically) by means of a “direction” was not well-received by him. In cross-examination, Mr Montana said that he perceived the email directing him to attend the IME as “attacking” him; and if this had been communicated face-to-face it would have been regarded by Mr Montana as “aggressive”. Mr Montana took Mr Pak to have written the email “out of frustration” and he considered that Mr Pak was “agitated”, “aggravated” and “angry”. Mr Montana said he “took offence” and could not believe how the email had been worded by Mr Pak. The email that Mr Montana sent to Mr Pak is indicative of the types of concerns about the direction itself. It is unclear, but the effect of Mr Montana’s evidence seems to have been that it was unnecessary to have received a direction when he could just have been requested/asked to attend the IME. However, that displays Mr Montana’s lack of knowledge or understanding about how these types of written communications are typically written by an employer to an employee. Despite Mr Montana’s descriptions of the correspondence in his evidence, Mr Pak’s email with DPW’s direction to attend the IME was, when considered objectively, an unremarkably-worded item of correspondence – and it was inappropriate for Mr Montana to respond in the tone he did. Relevantly (given some reliance was later placed on it in a post-dismissal letter from DPW), Mr Montana was not advised at the time that the tone of his email was considered inappropriate. Nor, for example, was he file-noted or warned about it.

Mr Montana attended the scheduled IME with Dr McGlynn, albeit he was late for the appointment by approximately (either) five or 10 minutes. Nothing turns on whether Mr Montana was five or 10 minutes late; one way or the other, Mr Montana was running late for the appointment. I separately note that Mr Montana asserted in a statement to the police and in his evidence-in-chief that he attended on time, but it is otherwise now common ground on the evidence that he was late. Mr Montana was running late for the appointment, but this was because he could not initially locate Dr McGlynn’s office within the dual-level arcade and sought directions. I accept Mr Montana’s evidence about initially being unable to locate Dr McGlynn’s office; I do not consider he was deliberately late as some indicator of lack of cooperation.

The evidence concerning the IME

I will recount, first, a summary of what Mr Montana said in his evidence as to what occurred in the IME appointment, followed by a summary of what Dr McGlynn said occurred. I have also included some additional matters or comments in each summary.

Mr Montana’s account of the appointment: Mr Montana’s account was that, following a brief exchange with the receptionist, Dr McGlynn asked him to come into his office. Just as Mr Montana was going to sit down, Dr McGlynn said “Before you sit down, I’ll measure your height”. Mr Montana said “Okay” and then walked towards the height scale against the wall. Mr Montana put his back against the wall and Dr McGlynn measured his height. Dr McGlynn then said “I’ll take your weight on the scale”. Mr Montana said “Okay”. He was standing next to Dr McGlynn.

Dr McGlynn activated a digital weighing scale by tapping it with his foot. The scale turned on. Dr McGlynn then stepped back, and Mr Montana straight away went to walk onto the scale, but it turned off before he could step on to it. Dr McGlynn sounded agitated when he then said, “Wait! The scale turned off I’ll have to turn it back on”. Mr Montana said “Okay”, then stepped back next to Dr McGlynn and waited for him to activate the scale again.

When the scale turned on (on the second attempt), Dr McGlynn “forcefully” grabbed Mr Montana’s arm and “aggressively pulled” him onto the scale. Mr Montana was shocked and said words to the effect of “Get your hands off me, keep your hands to yourself.”

Dr McGlynn then sat down and Mr Montana sat on the chair next to him. Dr McGlynn said “You came in for an examination, so I can touch you” and then Mr Montana said “There’s a difference between you touching me and examining me, and you grabbing me and pulling me”. Dr McGlynn told Mr Montana to “Be quiet”. Dr McGlynn then said “I’m going to end this examination, you came here to get an examination”. Mr Montana responded “I came to get an examination, not to get assaulted”. Dr McGlynn swivelled his chair around and started to write something. Dr McGlynn then said “Get out, the examination is over.” Dr McGlynn got up out of his chair and walked to the door of his office and opened it. Without Mr Montana saying another word, Mr Montana stood from his chair and walked out of Dr McGlynn’s office.

Mr Montana immediately telephoned DPW’s Human Resources section to report what had happened and left a message for Mr Pak asking for a return call. When Mr Pak retuned the call shortly thereafter, Mr Montana explained what had happened. Mr Montana said he would be happy to attend an IME with an alternative doctor.

Mr Montana’s characterisation of the touching included that Dr McGlynn “grabbed me and reefed me, pulled me onto the scale” (and, as a result, he could have fallen and been injured) and he considered that Dr McGlynn’s actions constituted an “assault”; and that Dr McGlynn had otherwise touched him without even “once” asking.

The following day, 9 August 2022, Mr Montana filed a report of common assault against Dr McGlynn with the Sutherland Shire Police Area Command. A copy of Mr Montana’s statement to the police was in evidence. It contains some matters of detail not otherwise included in the evidence-in-chief, such as responding to Dr McGlynn’s (alleged) words “Be quiet” with Mr Montana saying “Beg your pardon, don’t tell me to be quiet”. Mr Montana’s police statement also incorrectly indicated that Mr Montana had attended the appointment on time (in circumstances where it is common ground that he was late for the appointment). The police determined not to file any charges against Dr McGlynn. The relevant police officer explained to Mr Montana that he did not believe he could prove the complaint beyond a reasonable doubt because it would be Mr Montana’s word against Dr McGlynn’s word, and because the assault had not left any bruising or lacerations.

Dr McGlynn’s account: I next set out Dr McGlynn’s characterisation of what occurred.

Mr Montana arrived 10 minutes late for the appointment, being the time recorded by Dr McGlynn’s secretary/office manager in her electronic diary. Shortly thereafter, Dr McGlynn invited Mr Montana into his office.
Dr McGlynn always commences – because he tends to forget to do it – by recording height and weight. So Dr McGlynn informed Mr Montana that he was going to measure his height and weigh him, and asked him to stand at the height stick.
As Mr Montana moved into position to stand at the height stick, Mr Montana kicked the weighing scale towards the office door. Dr McGlynn put his foot out to block the scale so it did not hit the office door, and then manoeuvred it back into position with his right foot. Dr McGlynn then proceeded to measure Mr Montana’s height by lowering the stick on the height stick to the top of Mr Montana’s head to read off the scale Mr Montana’s height in centimetres.
Dr McGlynn asked Mr Montana to approach the weighing scale or stand on it, being a digital scale which is activated by Dr McGlynn touching/tapping and then the client standing on the scale. As the first foot tap of the scale by Dr McGlynn did not work, Dr McGlynn tapped the scale for a second time. Dr McGlynn denied being annoyed that Mr Montana did not get on the scale the first time and specifically denied being annoyed on the basis that “time is money” – separately adding that it was his termination of the assessment which meant that he could not bill for the time that had been booked, so that cost him a “four figure sum”.
As it is his habit of always touching a client’s right arm with his left hand as the client steps on the scale (because of concern that people might fall over), Dr McGlynn touched Mr Montana’s arm. Dr McGlynn elaborated that the scale is probably two inches high on carpet, and thus not as stable as, for example, a lower-rise scale on a bathroom floor. As Dr McGlynn touched Mr Montana’s arm, Mr Montana drew back (away from Dr McGlynn) “suddenly and violently, just went backwards” and said “You can’t touch me”. In cross-examination, Dr McGlynn otherwise described Mr Montana as having “stepped backwards very quickly”. Dr McGlynn also appeared to suggest that Mr Montana “suddenly stepped backwards and he’s going to push my hand out of the way as he does it, and that’s what happened”. When asked whether Mr Montana had made any physical motions towards him that would be considered threatening in any way, Dr McGlynn otherwise answered: “None at all”.
Dr McGlynn said he explained to Mr Montana that he always touches someone in that way in case they might fall over, because the scale is about two-and-a-half inches above floor level and he was just worried people might be unstable. Dr McGlynn was “a little bit shaken” by what had occurred. It is unknown/unclear on the evidence whether Dr McGlynn recorded Mr Montana’s weight, but it appears he did not. Dr McGlynn could feel his heart racing, so he sat down and asked Mr Montana to sit opposite him and said “Now can we quieten down and proceed?”, and Mr Montana accused Dr McGlynn of assaulting him. Dr McGlynn explained again to Mr Montana that all he did was touch his arm, as he does with everyone, in case they might fall; and that touching a patient or client is a standard part of any medical examination, which is what Mr Montana was there for. Mr Montana said “You can’t touch me, it’s an assault.” Dr McGlynn said “We aren’t getting very far.” Dr McGlynn felt that his pulse rate was about double normal and, in such respects, said to Mr Montana “My pulse rate’s way up and probably my blood pressure with it and I’m not feeling very happy about this. Will you quieten down?”. Dr McGlynn said he spoke “very quietly” to Mr Montana stating that he had not assaulted him, in explaining what he was doing (or had been doing in touching him) and in asking him to sit quietly opposite him so he could continue. Mr Montana just said “You can’t assault me”, so Dr McGlynn stood up and walked to the door; he does not think he even asked Mr Montana to leave. Dr McGlynn opened the door and Mr Montana left. Dr McGlynn said he explained his practice in relation to scales to Mr Montana a couple of times, and Mr Montana “just kept saying each time, you assaulted me”. This was a “very ultra-brief conversation” that lasted less than a minute. The time (overall) involved in the appointment was about three minutes. Dr McGlynn said “It wasn’t like a major event, however”.
For the medical reasons outlined in his evidence, Dr McGlynn said he is very conscious of his heart rate; here was an episode where his heart rate had doubled as a stress response to the episode with Mr Montana. Dr McGlynn “was stressed” and “felt threatened”. Dr McGlynn felt threatened by the general demeanour and behaviour of Mr Montana, including “commencing with kicking the scales out of the way” and the “sudden move when I touched his elbow”. Dr McGlynn added that he “got the feeling” that Mr Montana did not want to be at the appointment and was “cross”; and later said that he felt Mr Montana “was aggressive and didn’t want to be there”.
Dr McGlynn said that Mr Montana spoke firmly and loud enough for his secretary to hear what was said, but Mr Montana did not shout during the appointment (Dr McGlynn’s secretary told him afterwards that she was wondering whether she should have come into his office). Dr McGlynn described Mr Montana as having spoken in a “strident, full fashion”, which he took to be aggressive. Mr Montana was being “loud and disturbing”, which was upsetting to Dr McGlynn and he felt threatened. Dr McGlynn said that his “risk indicator” went up. Dr McGlynn confirmed that it was he who effectively terminated the appointment – being something he had never done in his more than five decades of practice. Dr McGlynn later informed Medicins Legale about matters and presumes that the organisation informed DPW. He later also prepared a letter to DPW.
Dr McGlynn denied he had assaulted Mr Montana. He explained that the physical contact was very brief because “almost the moment my hand touched his arm, he stepped back suddenly”. When shown the written evidence-in-chief of Mr Montana, Dr McGlynn denied the characterisations set out by Mr Montana – stating that it contained “lots of things that did not happen”. Specifically, Dr McGlynn denied having forcefully grabbed Mr Montana’s arm and aggressively grabbing him, and denied having said to Mr Montana to get out of here (rather, Dr McGlynn said “We’re not getting anywhere” and Dr McGlynn then walked to the office door). Dr McGlynn also referred to what had been written in his contemporaneous notes taken that day (albeit those notes were not in evidence). Dr McGlynn denied having told Mr Montana to be quiet; rather, he had asked him to “quieten down” adding, “but that’s totally different to saying be quiet”. This was in circumstances where Mr Montana was repeatedly (“probably three” times) saying that Dr McGlynn had assaulted him.
Dr McGlynn personally felt threatened and he felt that Mr Montana was “being aggressive without reason”. Dr McGlynn said that “The sense of it disturbed my sleep for a couple of weeks after”, with his disturbed sleep described later in his evidence as lasting for “three weeks afterwards”. Dr McGlynn confirmed that, in Mr Montana stepping backwards from the weighing scale, this was in a direction away from him. Dr McGlynn otherwise confirmed that Mr Montana:

·   did not make any physical motions of a threatening nature;
·   did not use any swear words;
·   did not make any overt threats;
·   did not issue any verbal threats;
·   did not yell; and
·   left without any “fanfare” after Dr McGlynn had walked to his office door and opened it for Mr Montana to leave.

Dr McGlynn said that he did not want the papers (which I take to be his letter of 12 August 2022) he sent to DPW to be publicly available as he did not want to “create more angst” in Mr Montana that might lead to the police being called. Dr McGlynn was concerned about coming to the Commission to give evidence, concerned about the effect it might have on Mr Montana.

Dr McGlynn said that, in retrospect, he should have terminated the appointment the moment Mr Montana kicked (with a “full kick”) the weighing scale out of the way on the floor (as this was “quite abnormal”) and he had put out his foot to stop the scale hitting the office door about a metre further over. Dr McGlynn said it was very hard to explain, but Mr Montana’s demeanour disturbed him significantly and he “felt completely threatened” and sat down because his “pulse had doubled.” In his 52 years of practising medicine, Dr McGlynn had never terminated an appointment other than the appointment with Mr Montana on 8 August 2022. Dr McGlynn’s “impression” or “take on the activity” was that Mr Montana behaved the way he did to avoid being assessed in the IME and Dr McGlynn being in a position where he could produce a reasonable assessment to answer DPW’s questions. Although Mr Montana did not say anything along those lines, Dr McGlynn considered that Mr Montana’s behaviour made it impossible to assess him.

Dr McGlynn received a telephone call the day after the appointment from a police sergeant from a local police station (suggesting, apparently, that Mr Montana had walked straight out his office on 8 August 2022 to the station – albeit that understanding is incorrect because the complaint/statement by Mr Montana was not made until the following day, 9 August 2022). Dr McGlynn felt “a bit annoyed, distressed” about the complaint, but later said it was “disturbing” or “upsetting” and did cause some distress as opposed to being annoying – because he considered the complaint to be unfounded. Dr McGlynn noted that a complaint made to the Health Care Complaints Commission along lines similar to Mr Montana’s police complaint was dismissed.

Alleged assault

It is unnecessary for me to determine, or purport to determine, whether Dr McGlynn “assaulted” Mr Montana. What is relevant is what Mr Montana said or did, because it was Mr Montana’s alleged conduct at the appointment that led DPW to form the view that dismissal was appropriate (considered with the other matters upon which DPW relied in making that decision).

The scale-kicking allegation

As to what seems to be the most serious issue of allegedly aggressive behaviour – kicking the weighing scale in Dr McGlynn’s office with a “full kick” - it seems to me to be less than probable that Mr Montana kicked the scale while approaching the height stick to have his height measured. In so finding, I note the following matters (in no particular order):
· The scale-kicking allegation by Dr McGlynn apparently did not feature in what little is known of the initial discussion between Dr McGlynn and Medicins Legale about why Dr McGlynn had terminated the appointment. Certainly, there is no note of this matter in what Ms Hucker-Stewart conveyed in her email to Mr Eadie concerning her telephone conversation with Medicins Legale.
· The scale-kicking allegation did not feature in Dr McGlynn’s own letter to DPW about what had unfolded in the appointment. An allegation about scale-kicking would have been, presumptively, a highly pertinent matter for Dr McGlynn to have included in his letter to DPW as to the decision he made to terminate the appointment. Approached another way, the scale-kicking allegation would have been a notable thing to have included by Dr McGlynn in his letter to DPW had it occurred. It is counterintuitive that alleged conduct of this nature would not have been canvassed, or mentioned, even if briefly, being an allegation that involved, on Dr McGlynn’s evidence, Mr Montana giving the weighing scale a “full kick” with sufficient force that the scale was propelling towards a door a metre away, were it not for Dr McGlynn stopping the scale’s trajectory with one of his feet. Indeed, on a reading of Dr McGlynn’s letter to DPW, nothing of any note occurred before Mr Montana was in the process of being weighed (and it is common ground that Dr McGlynn first measured Mr Montana’s height before the two of them stood at the scale and Dr McGlynn then next tapped the scale with his foot to activate).

· The scale-kicking allegation by Dr McGlynn is also to be considered in the context of his other evidence indicating that, following Mr Montana’s alleged “full kick” of the scale towards the door of the office located about a metre across the carpeted floor, that Dr McGlynn said nothing at all to Mr Montana about that immediately after this kick had occurred or even later (during the otherwise very short appointment). As Dr McGlynn’s account would have it, he stopped the trajectory of the moving scale, with one of his feet, so the scale did not hit the office door, and he then manoeuvred the scale back into position with his right foot. Again as Dr McGlynn’s account would have it, without any further ado, he then just proceeded to measure Mr Montana’s height by lowering the height stick on to the top of Mr Montana’s head to read Mr Montana’s height in centimetres. It seems implausible that Dr McGlynn would not have said anything at all about what had just happened involving the weighing scale being kicked by Mr Montana and, instead, simply proceed to measure Mr Montana’s height. It is otherwise common ground that Mr Montana cooperatively stood against the wall/height stick to have his height measured – with Dr McGlynn positioning the stick at the top of Mr Montana’s head and duly reading the measurement.
· It seems inherently improbable or unlikely that Mr Montana would have approached the police to make a complaint about Mr Montana if Dr McGlynn could then have countered with detail about Mr Montana having given his weighing scale a full kick (and there is no evidence that Dr McGlynn said to the police officer that Mr Montana had kicked the scale).

I have considered an alternative scenario, being that: Mr Montana did give a full kick to the weighing scale on his way to the height stick; Dr McGlynn did stop the moving scale with his foot; Dr McGlynn did then deftly manoeuvre the scale back into place with his foot; Dr McGlynn then, without saying a word, proceeded to lower the height stick to the top of Mr Montana’s head and measure the height of a person who had just engaged in what accurately could be described (had it occurred) as aggressive and/or abnormal behaviour - and, by extension, then might potentially kick Dr McGlynn after having just given a full kick to the weighing scale; then telling Mr Montana or gesturing to him to next move to the weighing scale and tapping it to activate it, as if nothing had otherwise happened - let alone Mr Montana just having given the same item a full kick. I consider that this scenario, or any similar variant relevantly involving Mr Montana allegedly having given the scale a full kick before politely standing in place to have his height measured, is inherently implausible.

It is the case that after-acquired knowledge can be relevant to the question of whether a dismissal was unfair and/or questions of remedy, but this matter of scale-kicking had never been raised previously or put to Mr Montana. That is, the scale-kicking allegation was not put to Mr Montana by DPW at any stage preceding the dismissal and it was not put to him in cross-examination. DPW cannot be criticised for not putting the scale-kicking allegation to Mr Montana as being a manifestation of “aggressive” behaviour during the appointment, because Dr McGlynn said in evidence that even if he had been contacted by DPW he would have referred to his letter (being his letter dated 12 August 2022) and not answered any questions that DPW may have asked. What was set out in Dr McGlynn’s letter is, his evidence indicated, what he wished to put back to DPW and that is all he wanted to say. Dr McGlynn did not provide a witness statement for the proceedings before the Commission; he declined to do so when asked by, or on behalf of, DPW. Dr McGlynn gave evidence further to an attendance order of the Commission, being an order sought by DPW. Dr McGlynn’s decision to exercise his prerogative not to provide a witness statement was, at least seemingly, informed by discussions Dr McGlynn had with his medical indemnity insurer. Moreover, Dr McGlynn gave his evidence after Mr Montana’s evidence.

Thus, I can appreciate that DPW had some difficulty in its case concerning Dr McGlynn’s termination of the appointment (and, likewise, Mr Montana was not aware of what was to be alleged). True it is that DPW had no knowledge of what Dr McGlynn now alleges occurred in this respect - however, DPW then specifically referred to the (alleged) scale-kicking incident in its written closing submissions as one of the manifestations of Mr Montana’s aggression. Indeed, the scale-kicking allegation was the first manifestation of alleged aggression that was listed in those submissions. That is, DPW’s closing submissions relevantly read: “Not only did Mr Montana kick Dr McGlynn’s scales, but he … [reference to various matters]”.

For the reasons I have outlined, I find, on the balance of probabilities, that the alleged scale-kicking did not occur.

The weighing

It is common ground that after Dr McGlynn had measured Mr Montana’s height, Mr Montana moved to the weighing scale to be weighed. After an initial unsuccessful foot tap on the scale by Dr McGlynn to activate it, or an activating tap that lapsed, Dr McGlynn successfully activated the scale with a second tap. There was a physical interaction, initiated by Dr McGlynn, as Mr Montana was stepping onto the scale to be weighed or when he was already standing on the scale.

The matters raised by DPW do not lead me to conclude that reinstatement would be inappropriate as a remedy, and nor are there any other matters that militate against that remedy. For example, DPW referred to Mr Montana having a record of unacceptable workplace behaviour, including breaching policies, and that there had been a loss of all trust and confidence in Mr Montana given his behaviour. The submissions around loss of trust and confidence need to be considered in the context of my findings – with the finding of an absence of a valid reason for dismissal favouring reinstatement. As to matters of previous warnings, none of those matters led DPW to the view that the employment should be terminated on the basis of them – even the reinforced final warning concerning forklift operations. In such respects, I have considered principles of the type discussed in familiar authorities including Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 and Moszko v Simplot Australia Pty Ltd[2021] FWCFB 6046 (“Moszko”). In Moszko there was discussion by the Full Bench about reinstatement of an employee with prior warnings, including the following extract:

“[62] … (g) Prior to his dismissal, Mr Moszko had a disciplinary history in his employment with Simplot, including being issued with a first warning and a second final warning. It is rational for the matters the subject of these warnings to have caused Simplot to lose some trust and confidence in Mr Moszko, but the fact that Simplot did not make a decision to dismiss Mr Moszko in connection with these incidents means that there was enough trust and confidence in the relationship for it to continue. Accordingly, these past incidents could not, without more, provide a sound and rational basis for a conclusion that Simplot has lost trust and confidence in Mr Moszko to such an extent so as to make restoring the employment relationship inappropriate.”

The MUA’s submissions indicated that the remedy sought is Mr Montana’s reinstatement to his stevedore position with no break in service; and reinstatement is the primary legislative remedy. On balancing relevant matters, I am satisfied that an order for reinstatement should be made. As is typically the case, it is appropriate for the reinstatement to be effected with an associated order for continuity. An order with respect to lost pay was not sought, so it is unnecessary to consider the matters specified in s.391(3) of the Act. An order for lost pay would not, in any event, be appropriate because there was nothing by way of evidence to indicate that Mr Montana was fit to return to work (and, hence, earn pay) around the date of the dismissal and nor was there any evidence of attempts to mitigate losses and so it would not be appropriate to say anything about that.

Separately, the parties will need to confer about the termination payments that were made to Mr Montana in conjunction with the dismissal and make administrative and/or repayment arrangements. Last, although not addressed by either party, I anticipate the order for reinstatement with continuity of service will have a collateral impact in relation to income protection payments under the enterprise agreement. As to that, I note that any income protection payments that may be made by an insurer are beyond the jurisdictional remit of the Commission in relation to an application made under s.394 of the Act.

Orders

The disposition of the application as to remedy is as follows.

Reinstatement

DPW shall reappoint Mr Montana to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location he previously worked) by no later than 21 days after the date of this decision.

Order to maintain continuity

In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of Mr Montana’s employment.

Conclusion

The proceedings are concluded.

COMMISSIONER

Appearances:

K Bond of the Construction, Forestry, Maritime, Mining and Energy Union (The Maritime Union of Australia Division) for the applicant.

B Milne of Kingston Reid for the respondent.

Hearing details:

2023.
Sydney:
January 4.

Final written submissions:

24 February 2023.

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