Anthony Stuckey v Prosegur Australia Pty Limited

[2020] FWC 1084

[2020] FWC 1084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Stuckey
v
Prosegur Australia Pty Limited
(U2019/11055)

COMMISSIONER PLATT ADELAIDE, 2 MARCH 2020

Application for an unfair dismissal remedy – inherent requirements of the role – valid reason for dismissal as a result of capacity.

[1] On 2 October 2019, Mr Anthony Stuckey (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Prosegur Australia Pty Limited (Prosegur or the Respondent) on 12 September 2019.

[2] There was no dispute that Mr Stuckey was protected from unfair dismissal.

When has a person been unfairly dismissed?

[3] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

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

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

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

The hearing

[4] On 16 December 2019, I made an order pursuant to s.594 of the Act prohibiting the publication of evidence, statements and submissions describing operational aspects of Prosegur’s operations (including Exhibit R2, GL2).

[5] The matter was the subject of a hearing on 23 January 2020. Mr Stuckey was represented by Ms Marie Boland of counsel and Prosegur was represented by Ms Simone Caylock of counsel. Permission was granted pursuant to s.596 of the Act based on complexity and efficiency.

[6] A witness statement (including attachments) was received from Mr Stuckey who also gave evidence. 1

[7] Witness Statements were received on behalf of Prosegur from Mr Gavin Lynch 2 (National Workplace Relations Manager) and Mr James Skuse (Area Manager Western)3 and these witnesses also gave evidence.

[8] The factual background to the matter whilst complex is largely not in dispute and is supported by documentary evidence submitted by the parties. The background is summarised as follows:

•  Mr Stuckey commenced casual employment with a predecessor to Prosegur on or about 31 May 2010.

•  On or about February 2011 Mr Stuckey secured a part-time role as an Armoured Vehicle Operator (AVO) guard with a minimum engagement of 22 hours per week. 4

•  Mr Stuckey’s AVO role included transporting money and other valuables and as part of that role he was required to wear Personal Protective Equipment including a radio and a firearm, manually lift goods which could weigh between 4.5 to 12.5kgs, and use aids to lift/transport heavier items. 5

•  On 28 May 2015 Mr Stuckey injured his lower back whilst handling money at work.

•  In June 2015 Mr Stuckey injured his lower back pushing an Armoured Truck which was undrivable.

•  Prior to sustaining these injuries, Mr Stuckey had not been the subject of any disciplinary action.

•  Mr Stuckey consulted a Doctor and was provided with Doctors Certificates advising that he was unable to work from 3 June to 5 June 2015 6 and 8 June to 11 June 2015.7

•  On 18 June 2015 Mr Stuckey lodged a Workers Compensation Claim.

•  Prosegur is self-insured under the Safety Rehabilitation and Compensation Act 1988 (Cth). Gallagher Bassett acts as its claims’ manager.

•  On 18 July 2015 Mr Stuckey underwent a CT scan by Dr Xiu Peng who reported no intrinsic abnormality. 8 The report was later amended to add general prominence of the annulus at L4/5 impinging on the thecal sac and minor prominence of the annulus at L5/S1 without any focal disc herniation or nerve root compression.

•  On 3 August 2015 Gallagher Bassett corresponded with Mr Stuckey advising of its decision in relation to his Workers Compensation Claim. 9 The correspondence stated that Mr Stuckey was examined by Dr Haig on 1 July 2015. Dr Haig initially accepted that Mr Stuckey was not capable of his pre-injury employment, however after reviewing some video surveillance, Dr Haig stated that it was highly questionable whether Mr Stuckey had been incapacitated for work as a result of the so-called injury. Gallagher Bassett accepted that Mr Stuckey suffered a lumber spine soft tissue injury on 28 May 2015 and contended that Mr Stuckey’s injury did not entitle him to compensation for incapacity benefits and denied liability for incapacity payments, however, it accepted liability for medical expenses. Mr Stuckey initially sought a review of this decision in the Administrative Appeals Tribunal but later withdrew the review application.

•  On 8 September 2015 Prosegur sent Mr Stuckey a letter 10 concerning an allegation of ‘serious or wilful misconduct’ as a result of Mr Stuckey himself indicating that he could not complete the full range of his duties that day, and allegedly disobeying a reasonable and lawful direction to perform work. In addition, Mr Stuckey was alleged to have failed to attend for work at 6.30am on 3 September 2015 as a result of having a Specialist appointment at 9.00am. Mr Stuckey was directed to attend a meeting on 17 September 2015.

•  On 13 September 2015 Mr Stuckey lodged a s.365 General Protections application. The application was closed on 15 September 2015 prior to any conference being held.

•  On 25 September 2015, Mr Michael O’Malley (Branch Manager) sent Mr Stuckey a letter 11 concerning his work attendance over recent weeks and incidents involving him refusing to carry out his usual duties. Mr O’Malley was aware of the disputed Workers Compensation Claim. Mr O’Malley advised that Prosegur held the view that Mr Stuckey was fit to perform normal duties without restriction and as a result had rostered him for normal duties. Mr O’Malley alleged that on repeated occasions Mr Stuckey had refused to perform his normal duties such as loading and unloading the vehicle prior to and on completion of the run including on 24 September 2015. Prosegur contended this conduct had resulted in significant and unsustainable disruption to the business and directed Mr Stuckey not to attend the workplace until he was willing and able to complete his usual duties in full.

•  On 29 October 2015 SAPOL received a notification from a prescribed person which contended that Mr Stuckey was suffering from a Psychological injury. On 30 October 2015 SAPOL suspended Mr Stuckey’s Class H firearms license as a result of concerns that it would be unsafe for him to possess firearms and ammunition, pending an investigation. 12 That investigation involved an assessment from Dr Marty Ewer who has specialist qualifications in Psychiatry.

•  Mr Stuckey submitted a Medical Report dated 3 December 2015 13 from Dr Ewer. Dr Ewer found that Mr Stuckey was suffering from a chronic adjustment disorder with anxious mood. Dr Ewer considered that Mr Stuckey’s symptoms would significantly improve once his medico-legal issues had been resolved. As to his capacity to work, Dr Ewer found that Mr Stuckey has a mild psychiatric disorder with a low level of symptoms and his symptoms are not sufficiently severe to prevent him from performing his substantive duties on a full time basis. Dr Ewer noted that Mr Stuckey’s physical problems needed to be considered but these were beyond the scope of his specialty.

•  Mr Stuckey’s firearms license was returned and reactivated in March 2016, it was due to expire on 31 May 2016. On 20 May 2016 Prosegur advised Mr Stuckey that they would not pay for his firearms license renewal. 14 SAPOL refused to renew Mr Stuckey’s firearms license and cancelled the same on 31 August 2016.

•  On 20 September 2017 Dr Graham Long, a Consultant Occupational Physician, determined that Mr Stuckey had a herniated lumbar disc with annular tear and that the symptoms and signs had been present since May 2015. Dr Long noted that there had been little improvement with the passage of time and no medical intervention is proposed with potential to result in significant improvement. Dr Long considered Mr Stuckey’s condition permanent and stable and maximal medical improvement had been established. 15

•  In October 2018 Mr Stuckey was examined by Dr WB Blakemore who found that Mr Stuckey was suffering from adjustment disorder with depressed mood and that Mr Stuckey’s condition would ‘appear to at least incapacitate him for any employment within his physical incapacities at present’.

•  Between 28 June 2015 and 29 July 2019 Mr Stuckey provided Prosegur with medical certificates 16 which indicated that he was not fit to return to full duties but was fit to return to modified duties; the restrictions varied but involved less than full hours each day and less than 5 days per week and also detailed lifting restrictions of 3kgs, no sitting for more than one hour, no bending and no kneeling and in some cases no driving of a company vehicle.

•  In April 2019 Mr Stuckey provided a medical certificate dated 29 January 2019 which contained a diagnosis relating to a neck injury and was accompanied by an email from Mr Stuckey which noted that the injury is now stated as permanent. 17 The medical certificate indicated Mr Stuckey was unfit for his usual work and could not do other work for 8 hours per week or more. Prosegur sought clarification and additional information from Mr Stuckey about his capacity to perform his role.18

•  Prosegur subsequently received a medical certificate which contained a diagnosis relating to back and neck pain and stated he was unfit for work between 29 July and 29 October 2019. 19

•  On 22 August 2019 Prosegur wrote to Mr Stuckey through his legal representative regarding his capacity to return to his pre-injury role and gave him an opportunity to provide information to enable Prosegur to make a decision about his future employment. The letter invited information concerning reasonable adjustment that could be made. No response was received.

•  On 12 September 2019 Prosegur determined that Mr Stuckey did not have the capacity to return to his role now or in the near future and that there were no other suitable roles. Prosegur dismissed Mr Stuckey upon 5 weeks’ pay in lieu of notice. 20

[9] The evidence also dealt with other matters some of which were in contest.

[10] Mr Stuckey gave evidence that:

•  After being accused of serious misconduct for refusing to perform all of his duties he lodged an anti-bullying application. No further action was taken against him in respect of the misconduct allegation.

•  On 17 September 2015 he sought alternative duties and was advised there were none available, he then raised the fact that his Doctors Certificate contained restrictions on the work that could be performed, he was then stood down for the day. The matter was escalated to Prosegur’s head office.

•  Debate continued over the work that Mr Stuckey could perform.

•  From 25 September 2015 Mr Stuckey was not offered anymore work, Mr Stuckey was directed to stay away from the workplace until he could complete his duties in full.

•  Mr Stuckey was unable to fulfil all the requirements necessary to retain his firearms license as Prosegur declined to offer him ‘scenario training’.

•  Mr Stuckey has not sought or obtained any other employment since 25 September 2015. His ability to mitigate his loss was impaired by the loss of his security and firearms license.

•  Mr Stuckey sent numerous medical certificates and a medical report to Prosegur as attached to his statement.

•  Mr Stuckey was paid employment sickness benefits for about 2.5 years some of which were required to be repaid.

•  On 14 June 2019 he filed an underpayment of wages application in the South Australian Employment Tribunal but the matter was cancelled. Mr Stuckey suggests that his dismissal was motivated by the lodgement of this claim.

[11] Mr Lynch gave evidence that:

•  At the time of Mr Stuckey’s Workers Compensation Determination, he was declared fit for his full pre-injury duties.

•  In August and September 2015, following Mr Stuckey’s Worker Compensation Determination Mr Stuckey was rostered to perform his normal AVO duties. 21 He was advised that Mr Stuckey refused to perform the duties of an AVO as a result of his injury and that he insisted on being provided with ‘light duties’. This manifested by Mr Stuckey attending for work and upon becoming aware he was rostered to work in a truck, refusing to undertake this work and requesting alternative duties.

•  On 25 September 2015 Mr Stuckey was advised not to attend for work until he could perform his usual duties.

•  Mr Stuckey then filed a General Protections Claim and an Anti-Bullying claim 22 which was disputed and subsequently discontinued.

•  In April 2019 Mr Stuckey provided a medical certificate for the period 29 January to 29 April 2019. Mr Lynch said this was the first certificate received from Mr Stuckey since April 2017. This led Prosegur to seek further information from Mr Stuckey about his medical condition and his capacity to perform his AVO role.

•  Prosegur subsequently received a medical certificate which indicated that Mr Stuckey would be unfit for work between 29 July 2019 and 20 October 2019 and that Mr Stuckey’s symptoms were likely to show considerable improvement within 2 years.

•  On 22 August 2019 Prosegur corresponded with Mr Stuckey via his lawyer concerning his capacity to return to his pre-injury role and advising that termination of employment was being considered. No response was received.

•  On 12 September 2019 Prosegur determined to dismiss Mr Stuckey on the grounds of incapacity with 5 weeks’ payment in lieu of notice being provided.

•  Mr Lynch refuted the suggestion that the dismissal resulted from a decision by Mr Stuckey to lodge an underpayment of wages claim in June 2019.

[12] Mr Skuse gave evidence that:

•  He was employed by Prosegur in January 2016 as Area Manager Western, working out of the Hindmarsh Branch where Mr Stuckey was employed.

•  He was not contacted by Mr Stuckey concerning his return to work, but was aware there was a dispute concerning Mr Stuckey’s workers compensation claim.

•  He provided correspondence in respect of:

•  medical certificates from Mr Stuckey in April 2019; 23

•  communication with Mr Stuckey’s lawyer on 17 May 2019 concerning Mr Stuckey’s firearms licence, alleged underpayment of wages and next steps. 24

•  In late May Mr Stuckey lodged proceedings in the South Australian Employment Tribunal alleging that Prosegur was obliged to offer him duties other than his AVO duties and that he had been stood down without pay.

•  On 24 July 2019 he received a further medical certificate 25 stating that Mr Stuckey was unfit for work from 27 July to 28 October 2019.

•  On 22 August 2019 Prosegur corresponded with Mr Stuckey via his lawyer concerning his capacity to return to his pre-injury role and advising that termination of employment was being considered. 26 No response was received.

•  On 12 September 2019 he, in consultation with Mr Lynch, determined to dismiss Mr Stuckey on the basis of his lack of capacity to return to his role as an AVO. The decision was confirmed in writing. 27

•  At the time of dismissal, the medical certificates provided by Mr Stuckey stated that he was unfit for work, could not do his usual work, or any other work for more than 8 hours per week. 28

•  There were no alternative roles or vacancies for Mr Stuckey at the Hindmarsh Branch, which is Prosegur’s only Branch in South Australia. In the period since 2015 Prosegur had reduced its full time equivalent workforce in the cash room and AVOs by approximately 40%. 29

Findings of fact in relations to contested evidence

[13] I accept that Prosegur did not provide scenario training to Mr Stuckey. However, Mr Stuckey could have renewed his security license and undertaken scenario training independently of Prosegur.

[14] On the basis of the information before me, I do not accept that Mr Stuckey was dismissed as a result of making an underpayment of wages claim.

[15] I accept that at the time of dismissal there were no alternative roles available.

Submissions

[16] Mr Stuckey filed written submissions. The submissions are summarised as follows:

•  The Commission must make findings if the Applicant suffered from the alleged incapacity at the time of the dismissal. 30

•  Mr Stuckey has consistently advised Prosegur that he was unable to undertake all of the duties of his role.

•  Prosegur did not have a valid reason to dismiss him as it could have made reasonable adjustments to his role or provided alternative employment.

•  Prosegur did not fully explore alternative roles or suitable adjustments to deal with Mr Stuckey’s medical issues.

•  Having left Mr Stuckey ‘in limbo’ for nearly four years Prosegur was ‘fishing’ for a reason to terminate his employment in 2019.

•  In the alternative the dismissal was harsh, unjust or unreasonable because:

•  Prosegur is a large business with access to legal and HR advice;

•  the dismissal is the culmination of a range of unjust behaviour by Prosegur since he was ‘suspended’ on 25 September 2015;

•  Prosegur did not pay him wages whilst suspended;

•  Prosegur’s actions had a considerable financial impact on Mr Stuckey.

•  Prosegur action resulted in the loss of Mr Stuckey’s tool of trade including his firearms license.

•  Mr Stuckey was dismissed after commencing an action for underpayment of wages.

[17] During submissions Mr Stuckey’s representative conceded that Mr Stuckey could not fulfil the inherent requirements of his role.

[18] Prosegur filed written submissions. The submissions are summarised as follows:

•  The correct approach to the determination of valid reason is contained in CSL Limited v Papaoioannou. 31

•  There was a valid reason in that Mr Stuckey did not have capacity to return to his pre-injury role as an AVO and there were no other suitable positions available.

•  There was evidence of the incapacity contained in the medical certificates.

•  Mr Stuckey did not provide any further information to be considered by Prosegur despite being invited to do so on 22 August 2019.

•  Mr Stuckey was notified on 22 August 2019 of the reason for the dismissal and given an opportunity to respond.

•  Mr Stuckey had the benefit of legal advice and representation at all relevant times.

•  The dismissal did not relate to unsatisfactory performance.

•  The considerations in s.387(f) and (g) are neutral considerations in this matter.

•  The dismissal was not harsh, unjust or unreasonable.

Has the Applicant been dismissed?

[19] There was no dispute that Mr Stuckey had been dismissed from his employment.

Was the Applicant protected from unfair dismissal at the time of dismissal?

[20] There was no dispute that Mr Stuckey was protected from unfair dismissal.

[21] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[22] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

[23] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 32

[24] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[25] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 33 and should not be “capricious, fanciful, spiteful or prejudiced.”34 However, 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.35

[26] As submitted by the parties the leading case as to the approach to be taken in determining the existence of a valid reason in the case of ‘capacity’ is CSL Limited v Papaioannou. 36 The Commission must determine for itself if the facts supported a conclusion that the Applicant was unable to perform the role due to incapacity, and if those circumstances represented a valid reason for dismissal. I have adopted that approach.

[27] Prosegur contend that Mr Stuckey did not have the capacity to perform the duties of his role as an AVO based on the information available to it and having given Mr Stuckey an opportunity to provide further information.

[28] Mr Stuckey submitted that there was no valid reason for the dismissal related to the Applicant’s capacity as Prosegur could have made reasonable adjustments to his role or provided alternative employment.

[29] In J Boag and Son Brewing Pty Ltd v Allan John Button 37 the Full Bench stated:

“[29]…  An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.”

[30] A comparison between the requirements of Mr Stuckey’s role 38 the limitations detailed in the medical evidence, and the evidence of the witnesses clearly indicated a substantial and continuing gap between the requirements of the AVO role and Mr Stuckey’s capacity. In closing submissions Mr Stuckey’s counsel appropriately conceded that Mr Stuckey was unable to fulfill the inherent requirements of the AVO role.

[31] I find that Mr Stuckey did not have the capacity to perform his role.

[32] The Workers Compensation legislative regime in South Australia has an emphasis on returning an injured employee back to work and there are legislative provisions designed to enforce those requirements. The evidence before me does not reveal that at the time of dismissal there were any ‘return to work’ obligations or arrangements in place.

[33] It is not immediately apparent how the alleged failure of Prosegur to make reasonable adjustments or provide alternative employment is relevant to the existence of a valid reason. Counsel for Mr Stuckey could not point me to any case law to support this contention. That is not to say that this topic is not relevant to the issue of whether the dismissal was harsh, unjust or unreasonable.

[34] I find that there was a valid reason for the dismissal as a result of Mr Stuckey’s capacity.

Was the Applicant notified of the valid reason?

[35] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 39 and in explicit and plain and clear terms.40

[36] On 22 August 2019 Prosegur wrote to Mr Stuckey (via his lawyer) advising that it believed he did not have the capacity now or in the near future to return to his pre-injury role as an AVO. Mr Stuckey was invited to provide information that he wished to be taken into account including his capacity to resume full duties and any adjustments that could reasonably be made to enable him to return to full duties by 4 September 2019. Mr Stuckey was advised that if Prosegur concluded that he did not have the capacity to return to his injury role (including any reasonable adjustments) his employment was likely to be terminated.

[37] I find that Mr Stuckey was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[38] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 41

[39] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements. 42 The matters canvassed in the letter dated 22 August 201943 correlate with the reasons for dismissal in the letter dated 12 September 2019.44

[40] I find that Mr Stuckey was provided with an opportunity to respond to the reason for his dismissal in the correspondence sent by Prosegur on 22 August 2019, which was prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[41] The Applicant submitted that this consideration is not relevant in this matter.

[42] I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[43] The Applicant submitted that this consideration is not relevant in this matter.

[44] I find that the dismissal did not arise from any unsatisfactory performance by the Applicant.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[45] The Applicant submitted that this consideration is not relevant in this matter.

[46] The Respondent is a large employer and its size did not appear to impact the procedures followed in effecting the dismissal.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[47] The Applicant submitted that this consideration is not relevant in this matter.

[48] The Respondent had access to internal human resources management and it did not appear to impact the procedures followed in effecting the dismissal.

What other matters are relevant?

[49] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[50] Mr Stuckey submitted that the dismissal was the culmination of unjust behaviour by his employer targeted towards him since he was directed to remain away from the workplace from 25 September 2015. This included a period where he was not paid by Prosegur. There was argument about Prosegur’s decision not to pay wages during this period. I note that Mr Stuckey commenced a number of additional proceedings which appear to have been an attempt to resolve this issue but did not pursue any of them to finality. Mr Stuckey was able to access Centrelink benefits for about 2.5 years.

[51] In my view whether Mr Stuckey had been paid correctly for the period that he could not fulfil the requirements of his pre-injury role is not relevant to the characterisation of the dismissal. Even if this view is incorrect, the loss of wages (in part) has been mitigated by the receipt of Centrelink benefits and Mr Stuckey continues to have recourse to measures to address that issue.

[52] It appears to me that Mr Stuckey was ready and willing, but was not able to perform the work in the role in which he was employed. I accept that where the ability to perform the role is only marginally impaired, a dismissal may he harsh, unjust or unreasonable, however in this case there was a substantial gap which has remained for a lengthy period and Mr Stuckey’s more recent medical certificates indicate the injury was now permanent.

[53] I have not been directed to any authority which suggests that the dismissal would have been unfair by virtue of Prosegur refusing to modify the duties to a level that would have allowed Mr Stuckey to remain as an AVO or provide alternative employment.

[54] I accept that Prosegur did not have alternative roles available at the time dismissal was being contemplated and that it did not rush to judgement.

[55] It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the Act. 45

[56] The various medical reports submitted by Mr Stuckey detail the impact of his injuries on him. In October 2018 Mr Stuckey reported that his circumstances had resulted in the loss of his relationship, his children, contact with his friends, and all of his assets and the onset of depression. 46 I accept that Mr Stuckey was significantly impacted by his circumstances and that the dismissal would have had further detrimental impact on him.

[57] Mr Stuckey submitted that the loss his firearms license reduced his ability to mitigate the impact of his suspension. Prosegur advised that it had withdrawn the mandatory training, because of Mr Stuckey’s inability to perform his AVO role and that he could have undertaken the training at an alternative provider if he wished.

[58] An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable. 47 I accept that Mr Stuckey had worked for Prosegur (or its predecessors) for just short of a decade and that prior to the injuries he sustained his work performance had not been called into question.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[59] I have made findings in relation to each matter specified in s.387 as relevant.

[60] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 48

[61] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

Conclusion

[62] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act and the application is therefore dismissed.

COMMISSIONER

Appearances:

Ms M.Boland of counsel on behalf of the Applicant.

Ms S.Caylock of counsel on behalf of the Respondent.

Hearing details:

2020.
Adelaide:
January 23.

Printed by authority of the Commonwealth Government Printer

<PR717101>

 1   Exhibit A1

 2   Exhibit R2

 3   Exhibits R3 and R4

 4   Exhibit A1, AS001

 5   A detailed AVO Job analysis is contained in Exhibit R2 attachment GL-2. An order was made pursuant to s.594 that evidence concerning the operational aspects of Mr Stuckey’s role was made pursuant to s.594 of the Act by consent

 6   Exhibit A1, AS002

 7   Exhibit A1, AS003

 8   Exhibit A1, AS042

 9   Exhibit A1, AS007 The report was not received as evidence of the facts contained therein.

 10   Exhibit A1, AS008

 11   Exhibit A1, AS010

 12   Exhibit A1, AS011

 13   Exhibit A1, AS012

 14   Exhibit A1, AS013

 15   Exhibit A1, AS041

 16   Exhibit A1, AS019-AS039

 17   Exhibit R2, GL5

 18   Exhibit R3, JS4

 19   Exhibit A1, AS039

 20   Exhibit R3, JS5

 21   Exhibit R2, GL3

 22 AB2015/498

 23   Exhibit R3, JS1

 24   Exhibit R3, JS2

 25   Exhibit R3. JS3 or Exhibit A1, AS039

 26   Exhibit R3, JS4

 27   Exhibit R3, JS5

 28   Exhibit A1, AS039

 29   Exhibit R3 para 16.4

 30   CSL Limited v Papaioannou[2018] FWCFB 1005

 31   [2018] FWCFB 1005, [77]

 32   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

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

 34   Ibid

 35   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685

 36   [2018] FWCFB 1005

 37   [2010] FWAFB 4022, [29]

 38   Exhibit R2, GL2

 39   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 40   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 41   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

 42   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

 43   Exhibit R3, JS4

 44   Exhibit R3, JS5

 45   Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26]

 46   Exhibit 1, AS019 (History)

 47   Telstra Corporation v Streeter [2008] AIRCFB 15, [27]

 48   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]