Brian Derek Scantlebury v BHP Coal Pty Ltd
[2022] FWC 2261
•14 OCTOBER 2022
| [2022] FWC 2261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brian Derek Scantlebury
v
BHP Coal Pty Ltd
(U2022/3651)
| COMMISSIONER HUNT | BRISBANE, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy – unable to perform the inherent requirements of the role - valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
On 28 March 2022, Mr Brian Scantlebury made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from BHP Coal Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
On 27 April 2022, the Respondent filed a Form F3 Employer Response to the application. No jurisdictional objections were raised.
Legal representation
The matter was listed before me for Hearing on 12 August 2022 by video using Microsoft Teams. The Respondent sought to be represented at the Hearing by Corrs Chambers Westgarth. Mr Scantlebury opposed leave being granted.
In support of the Respondent’s request for leave to be granted for it to be represented, Ms Kristin Gamble, Head of Legal, Employee Relations in the BHP Legal Team, Australia, filed a witness statement. Ms Gamble explained that the BHP Legal Team services all of the entities within the BHP Group in Australia. Seven members of the team practice employment law.
Some of the lawyers are seconded from law firms and some are temporarily replacing employees on parental leave. Only two employees, including Ms Gamble, are permanent BHP employees.
I was not satisfied that the matter before the Commission was sufficiently complex for me to exercise my discretion pursuant to s.596(2)(a) of the Act to grant leave for the Respondent to be represented. Given the depth of experience of the legal practitioners within the BHP Legal Team, I was not convinced it was necessary to grant leave for representation at the Hearing. In any event, the Hearing lasted for approximately one hour, demonstrating that the matter was not sufficiently complex, nor did it require extensive cross-examination of witnesses.
Mr Scantlebury represented himself at the Hearing. The Respondent was represented by Ms Melissa Mason, Principal Employee Relations.
Relevant legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
There are no jurisdictional issues preventing the Commission in determining if the dismissal was unfair. The application was made in time. Mr Scantlebury has been dismissed and has met the minimum employment requirements. The Respondent is not a small business, and the dismissal was not for a genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.
Background
Mr Scantlebury commenced employment with the Respondent on 17 December 2018 and was employed until his dismissal on 11 March 2022. At the time of his dismissal, Mr Scantlebury was employed as an Engineer Projects where he was managed by Mr Layton, as his line manager, and Mr Ginty, as the department manager on the Blackwater Mine Site (the Site). The Respondent stated that Mr Scantlebury, in his role, was responsible for:
·liaising with stakeholders on Site about engineering problems;
·liaising with a consultant to come up with a design to solve the problems;
·going to tender with contractors to build the design;
·planning the execution of the solution;
·coming up with an estimate for the works and getting funding approval; and
·overseeing execution of the solution on Site.
Mr Scantlebury submitted that his original signed contract provided for use of a motor vehicle. This was denied to him; he made various reports of this.
Mr Scantlebury is an Indigenous Australian and aged over 50 years. At the commencement of the COVID-19 restrictions in early 2020, Mr Scantlebury was identified as a high-risk person of contracting COVID-19 and was directed by the Respondent to work from home. Mr Scantlebury stated that he returned to work from Site on 9 September 2020.
The Respondent submitted that the Engineer Projects role is required to be performed at least partially on the Site because of the nature of the work to be performed. The Respondent submitted that that Mr Scantlebury exhibited the following behaviours during his employment:
·a pattern of ongoing poor performance;
·taking significant periods of annual leave and personal leave without providing sufficient notice to Mr Layton and Mr Ginty beforehand; and
·being frequently absent from Site without explanation, sufficient notice or submitting a paid leave request.
In particular, the Respondent noted that from September 2020 to August 2021, Mr Scantlebury took 49 days of annual leave, 33 days of sick leave, and was absent for up to 41 days without explanation, sufficient notice or submitting a paid leave request. In some instances, Mr Scantlebury would not notify Mr Layton or Mr Ginty of his leave requests until after his shift had already commenced. On other occasions, Mr Scantlebury would not attend Site or submit a leave request for his absence without any explanation. Mr Layton or Mr Ginty regularly would be required to follow up on Mr Scantlebury to undertake a welfare check and ascertain why he was not on Site.
Mr Scantlebury advised that during this period, he had experienced many traumatic events within his personal life. His partner had numerous overdoses and was self-harming. By January 2021, his partner was admitted to hospital for mental health treatment on several occasions. His neighbour committed suicide in late January 2021, followed days later by his friend committing suicide.
The Respondent submitted that it supported Mr Scantlebury during this time by:
·approving leave requests, even in circumstances where such requests were submitted without sufficient notice; and
·not challenging unexplained absences even in circumstances where neither an explanation was given or leave request made.
Mr Scantlebury informed Mr Ginty and Mr Layton that he preferred not to do engineering project work, and instead was more interested in the Respondent’s Indigenous community work. A specialist role in the Respondent’s employment team became available in or around February/March 2021. Mr Ginty and Mr Layton supported Mr Scantlebury’s application for the role, however he was unsuccessful.
From April 2021, Mr Scantlebury was failing to achieve the minimum deliverables for his role, including a monthly report setting out the progress of projects allocated to him. Mr Scantlebury was prioritising community work for the Community Affairs team over the duties of his role as Engineer Projects without seeking permission from Mr Layton or Mr Ginty.
On 25 May 2021, Mr Layton and Mr Ginty met with Mr Scantlebury to express support for his involvement in community work and reiterated that his role was Engineer Projects and his project work had to be completed as a priority before any community work could be undertaken.
On 4 June 2021, Mr Scantlebury provided a medical certificate from his treating medical practitioner advising that he was receiving medical treatment for a non-work related injury and would only be fit to continue his usual occupation four days per week instead of five days per week from 4 June 2021 to 30 July 2021. To accommodate the restrictions, the Respondent implemented a temporary flexible working arrangement from 4 June 2021 which allowed Mr Scantlebury to work on Site three days per week, work from home one day per week and take sick leave one day per week. This arrangement was formalised by the Respondent by way of a Health Management Plan with a health specialist and use of the employee assistance program.
During a monthly performance review on 8 June 2021, it was recorded that Mr Scantlebury failed to achieve any of his key performance indicators and was provided with areas for improvement by way of a Development Plan Activity form.
In a further annual performance review on 14 July 2021, Mr Scantlebury was recorded as having failed to achieve the minimum requirements for his role or meet any of his key performance indicators again.
On 3 August 2021, Mr Scantlebury provided a medical certificate from his treating medical practitioner extending the period he would be required to work reduced days per week between 30 July 2021 and 30 October 2021. The Respondent extended the Health Management Plan to 30 October 2021.
In light of the ongoing issues with Mr Scantlebury’s performance, on 25 August 2021 a performance improvement plan (PIP) process was implemented in conjunction with the Health Management Plan. The purpose of the PIP was to give Mr Scantlebury clear areas for improvement and performance goals to achieve that aligned with the restrictions in his Health Management Plan. The intention was to monitor Mr Scantlebury’s progress on a weekly basis by way of weekly meetings to ensure he had enough support and resources available to him. The PIP was ultimately cancelled due to the commencement of an Independent Medical Examination (IME) process in or around 31 August 2021.
On 31 August 2021, Mr Scantlebury provided the Respondent a medical certificate from his treating medical practitioner advising he was receiving treatment for a non-work related injury and would be unfit to continue his usual occupation from 30 August 2021 to 30 September 2021.
On 2 September 2021, the Respondent directed Mr Scantlebury to attend an IME to provide the Respondent with more information about his injury, his fitness for work and any accommodations or restrictions that may be required to facilitate his return to work. A letter was sent the same day, as follows:
“Dear Derek Scantlebury,
I refer to your meeting with me on 2 September 2021.
As discussed, the company has concerns about your fitness for work and whether you are able to safely perform the inherent requirements of your role as Engineer Projects due to the following:
- On 4 June 2021, Dr Nicholas Wong, General Practitioner, issued a medical certificate stipulating you are receiving medical treatment for the period of 4 June 2021 to 30 July 2021 and you will be fit to continue your usual occupation at four days per week instead of five days per week.
- This medical certificate was extended by Dr Wong from 30 July 2021 to 30 October 2021 and further advised you will be fit to continue your usual occupation at four days per week instead of five days per week.
- During this time the department has supported you on a return to work plan where you apply for leave for one day per week in order to meet the restrictions advised by Dr Wong
- On 31 August 2021 Dr Wong issued a medical certificate stating you are unfit to continue your usual occupation from 30 August 2021 to 30 September 2021
At this time, the Company does not have sufficient information about your condition, estimated return to work date or any restrictions that may apply upon your return to work. In addition, the company has a duty of care and safety obligations towards you and other workers.
Based on the current circumstance and information provided to date, I require further information in order to determine whether you are fit to return to work as an Engineer Projects with the company either now or in the future.
For these reasons I require you to undertake an evaluation with your nominated Occupational Physician so that I can understand whether you are fit to return to your position of Engineer Projects. Please confirm your nominated Occupational Physician to your department superintendent by Wednesday 8th Sept 2021. The onsite health team will arrange your appointment and you will be contacted by them as to the date and time of your appointment.
The company will pay for the cost of your examination as well as any reasonable travel expenses (where receipts are provided).
I also request that you sign and date the consent form that was provided to you on Wednesday 8th Sept 2021 which authorizes the Occupational Physician to provide a copy of the report to the onsite Rehabilitation and Return to Work Coordinator.
Please note that failure to attend the medical assessment or otherwise participate in this process without reasonable excuse may result in disciplinary action, up to and including termination of employment. It is your responsibility to ensure that you have access to a reliable internet connection, and a compatible device in order to attend the consultation (if only available online).
…
Yours sincerely,
Jarrod Layton”
On 23 September 2021, Mr Scantlebury attended the first IME with Dr Robin O’Toole. Dr O’Toole’s report dated 13 October 2021 (First IME Report) found that Mr Scantlebury was not fit for work for at least three months. In particular, the examination findings of Dr O’Toole are as follows:
“On general inspection, Mr Scantlebury appeared well and in keeping with the expectations of a man of his age and station.
His mental statement examination was largely normal for his current state. He was well presented, had a normal affect and rapport was quickly gained and maintained throughout the consultation. All responses were appropriate and there was no indication of abnormal thought process or content.”
As to whether Mr Scantlebury was fit to perform the inherent requirements of his role, Dr O’Toole answered:
“No, I do not consider that he is able to safely perform the essential inherent requirements of his role without significant and foreseeable risk of further injury for at least the next three months whilst he commences treatment.”
On 23 October 2021, Mr Layton attended a meeting with Mr Scantlebury and his support person to discuss the findings in the First IME Report and confirm that Mr Scantlebury would be required to use his contractual paid leave entitlements and then move to unpaid leave for his three month absence. On 25 October 2021, Mr Ginty confirmed that authorisation was not granted for paid leave beyond the exhaustion of Mr Scantlebury’s paid leave entitlements and his three month period of leave would be required to be processed as leave without pay. However, due to a payroll error, Mr Scantlebury’s leave without pay occurred on only one day, 13 October 2021. Thereafter he was incorrectly paid his full pay. As a result, Mr Scantlebury was overpaid by the Respondent for the period 14 October 2021 to 10 January 2022 an amount of $37,331.69 (gross), or $23,259.12 (nett).
On 23 December 2021, the Respondent directed Mr Scantlebury to attend a second IME with Dr O’Toole on 10 January 2022 to reassess whether Mr Scantlebury was fit to return to work. Dr O’Toole’s report dated 25 January 2022 (Second IME Report) stated the following:
“Examination Findings
On general inspection, Mr Scantlebury appeared well. His mental state examination was largely normal for his current state. He was well presented, had a normal affect and rapport was quickly gained and maintained throughout the consultation. All responses were appropriate and there was no indication of abnormal thought process or content.
Summary
…After assessing all the information presented to me, and examining Mr Scantlebury, it is my opinion that his diagnosis is anxiety disorder.
We have dismissed alternate employment. When asked what he thought would happen if he had return back to work tomorrow, he advised that he would be quite anxious. He is still quite concerned that his partner’s condition will not be stable in the long term.
He feels that he is able to attempt project work from home and build up over time but cannot foresee that there would be significant amount of work to be done in the long term. In the case that there is a significant amount of work to be performed, then this would be a possible avenue back to work. It is not advisable that he returns to Blackwater ever again, as doing so would pose a significant and foreseeable risk to himself.
With respect to the condition assessed today, Mr Scantlebury is able to return to his pre-injury role within the following restrictions / limitations:
· No work in Blackwater
· Office based duties, from home.
It is acknowledged that these recommended restrictions will be a direct barrier to Mr Scantlebury returning to his [full] substantive role. Considering Mr Scantlebury’s role, and the tasks that he is required to perform in that role, it is evident that if he was to return to his full substantive role, there is a significant and foreseeable risk of further injury. The ‘Health Benefits of Good Work’ is a body of research and advice produced by the Australasian Faculty of Occupational and Environmental Medicine (AFOEM) and the Royal Australasian College of Physicians (RACP) that highlights the physical and psychological benefits for all individuals that can be gained from meaningful employment. This indicates that returning to work, as long as it is ‘good work’, should be a priority goal for all people for the benefit of their long-term health. ‘Good work’ is work that provides a sense of meaning and purpose and can be performed safely with respect to an individual’s physical and psychological capacity. Considering the impact that Mr Scantlebury conditions has had on his life and function thus far, returning to work will have a positive effect on his long term health. However, when weighed against the risk of further injury that his current role poses, it is recommended that he not return to his current role and instead seek an alternate role, either through alterations to the tasks that he performs, transition to another role internally if available, or seeks a different role outside the current employer. Any role that is performed, should still be done so within the restrictions outlined above.
…
Response to Specific Questions
…
There is no requirement for restrictions with regards to the hours or shifts that he works, merely the location and tasks performed. He should not return to the Blackwater site.
…
7. In the case of a return to work in the future, please indicate whether there is an increased risk to Mr Scantlebury of exacerbation of any existing condition. If there is an increased risk, please quantify whether the risk is moderately, significant or greatly increased.
Yes, returning to his full substantive role, onsite at Blackwater poses a significant and foreseeable risk of further injury, in the form of exacerbation of his anxiety disorder.
…
10. Are there other factors you believe relevant to assessing Mr Scantlebury ability to perform his duties as Engineer Projects
The main barrier to Mr Scantlebury returning to work is the location that he is employed in. The relative isolation and the environment pose a risk to exacerbating his condition. An alternate role is recommended where he is able to perform Project work from home, if this can be accommodated.
…”
The restrictions proposed in the Second IME Report could not be accommodated by the Respondent for Mr Scantlebury’s role of Engineer Projects because the role was to be performed at least partially on Site. Furthermore, the Respondent submitted that it had no alternative roles that could accommodate the restrictions proposed in the Second IME Report suitable for Mr Scantlebury’s skillset, experience and qualifications.
The Respondent stated as a result of findings in the Second IME Report, the Respondent commenced a show cause process. On 2 February 2022, Mr Layton and Mr Ginty met with Mr Scantlebury and his support person to provide him with a show cause letter requesting a response by 4 February 2022. On 4 February 2022, Mr Scantlebury provided a show cause response by email. The email is extracted below:
“Jarrod
In response to your letter attached
Your action of the show cause process is lacking in Procedural Fairness:
1. I would refer to BWM-PRO-1027 BWM PRO Fit for Work – Physical and Psychological Impairment Management Procedure that you have referenced and the BMA-PRO-6939635 BMA PROCEDURE Injury Management and Rehabilitation which is referenced within.
a. In particular Section 7.1 Management of Concern, BWM-PRO-1027 BWM PRO Fit for Work – Physical and Psychological Impairment Management Procedure. When was the SSE part of this discussion and what role has the HSE Superintendent played to date? and
b. With regards to BMA-PRO-6939635 BMA PROCEDURE Injury Management and Rehabilitation who was the RRTWC to my case and why were they not involved with this decision?
2. 48 hrs is not adequate to prepare the appropriate response particularly considering that my access to my BHP computer and consequently access the requisite policy and procedures was rescinded by you yesterday (Incident INC1476203).
3. At no stage was there any evidence of alternate roles or tasks being considered prior to this notice being issued. On the backdrop that BHP has a commitment to reach 3% indigenous management representation prior to 2025 it is difficult to believe that there has been no alternate roles suggested by HR.
a. Can you please confirm any emails or requests that you may have sent to the HR function regarding your efforts to find alternate options?
4. Can you also demonstrate that your judgement throughout this process has not been tainted by your desire for retribution for the Ethics Point complaints about the actions of both yourself and Byron that were lodged on my behalf last year?
Could you please forward the requested information and evidence as per Section 40 of the Information Privacy Act 2009 (Qld)? I will subsequently respond in turn to the evidence produced with 7 days of receipt.
I look forward to receiving your response.
Regards
Derek Scantlebury”
The BWM-PRO-1027 BWM PRO Fit for Work – Physical and Psychological Impairment Management Procedure referred to by Mr Scantlebury includes the following:
“Obligations of Superintendents and Supervisors
·Make appropriate workplace adjustments to support affected employees. This may include assigning the individual to alternate work, for example, non-safety critical tasks or job rotation;
·Foster an environment of open communication;
·Encourage and assist affected employees to seek assistance for issues related to physical and psychological impairment; and
·Ensure that in the case of physical or psychological impairment being identified as a contributing factor for an incident, where possible implement this procedure to reduce the likelihood of reoccurrence.”
The Procedure goes on to state that employees will be paid full wages up until an Occupational Physician provides a report as to a worker’s ability to safely perform work.
The BMA Procedure Injury Management and Rehabilitation declares the following:
“Where an injury or illness is non-work related, rehabilitation will be offered at the discretion of the business on a case-by-case basis. Rehabilitation for non-work related conditions can be ceased at any time. The business is not liable for any cost other than the time and assistance provided by the RRTWC.”
Clause 4.10 of the Procedure prescribes Suitable Duties Plans. At subclause (h) of the clause, it prescribes what will happen if an injured worker is medically fit for suitable duties. It prescribes what will happen if the workplace cannot accommodate suitable duties, requiring the RRTWC to discuss with the Claims Case Manager the potential for host employment options. Whilst Claims Case Manager is not a defined term, it is used throughout the Procedure with respect to Workers’ Compensation claims. Mr Scantlebury did not have a workers’ compensation claim.
In the Respondent’s view, Mr Scantlebury’s response did not provide any indication that his non-work injury had improved or any medical evidence that he was fit to return to work without the restrictions outlined in the Second IME Report. On 8 March 2022, Mr Ginty sent Mr Scantlebury the following email:
“Hi Derek
Thank you for your email on 4 February in response to the Show Cause letter of 2 February 2022.
In response to the points which you raised:
1. I am satisfied that BHP has adhered to procedural fairness in relation to the matter of your injury which was deemed to be non-work related by an independent medical advisor (Dr Robin O’Toole).
2. I am satisfied that 48 hours was sufficient time for your response to the letter issued on 2 February 2022 at our meeting.
3. I can confirm that my team has invested time and effort to identify any alternative roles within Engineering which would be suitable; there are no suitable roles currently available within the Engineering team.
4. I can confirm categorically that this process has not been influenced by any other report which you may have made.
Given your response to the letter issued on 2 February 2022 I would like you to attend a meeting on Thursday 10 March at 10:00. Daniel McCarthy, ER Specialist will also attend the meeting.
You should be aware that this meeting may result in termination of your employment. You are entitled to bring a support person with you; if you wish to do so please let me know in advance of the meeting. I understand that this may be a difficult time for you and I wish to extend to you the offer of any assistance you may require regarding this matter and also remind you that the company's Employee Assistance Program (EAP) is available to you. Their contact number is [redacted].
Regards,
Byron Ginty”
The Respondent consequently decided to dismiss Mr Scantlebury from his employment. That decision was communicated to Mr Scantlebury orally and in writing on 11 March 2022. The termination letter, dated 11 March 2022, is extracted below:
“Dear Derek,
Your employment
I refer to the letter dated 2 February 2022 requiring you to Show Cause as to why your employment should not be terminated (Show Cause Letter).
As outlined in the Show Cause Letter, the Company was considering termination of your employment on the grounds of incapacity to perform the inherent requirements of your role as Engineer Projects.
You were asked to show cause as to why your employment should not be terminated and were invited to provide your written response for the Company to consider as part of the review of your ongoing employment.
Your written response
You provided your written response on 4 February 2022, and I have now had time to consider your response before making a decision regarding your employment. You have not provided the Company with any updated medical information for consideration, nor have you provided any mitigating or compelling reasons as to why your employment should not be terminated.
Termination of Employment
I have taken all relevant matters into account in determining the appropriate outcome, including medical information provided to date, your employment history and your written responses. I have concluded that you have not shown sufficient cause or justification to continue your employment.
In the circumstances, I have decided to terminate your employment with effect from today being 11 March 2022.
In accordance with your employment contract, you are entitled to 5 weeks of in lieu of your notice period. You will not be required to serve out your notice period and a payment in lieu of notice will be made to you.
Payment of accrued entitlements
Upon termination of your employment, you will also be paid all accrued and untaken annual leave and, where applicable, long service leave entitlements. Details of your termination payments will be provided to you separately.
Furthermore, I would like to record that BHP has maintained your salary during your period of leave.
Return of Company property
Please ensure that all Company property in your possession is returned to me as soon as possible. This includes but is not limited to Company laptops, tools and equipment, keys and passes to Company buildings and vehicles, all Company documents (including electronic documents, resources, software and hardware).
Your termination entitlements will not be paid to you until all Company property is returned.
Please let me know if you have any personal property at the Blackwater Mine so I can arrange to have it returned to you.Employee Assistance Program (EAP)
I understand that this may be a difficult time for you. I wish to reiterate to you the offer of any assistance you may require regarding this matter and also remind you that the Company's Employee Assistance Program (EAP) is available to you. Their contact number is [redacted].
Yours sincerely,
Byron Ginty”
Evidence of Mr Scantlebury
Mr Scantlebury stated that he had maintained and been recognised as having solid community standing. He diligently, and in good faith, represented the Respondent in the highest regard despite the early employment issue surrounding the provision of a motor vehicle. He stated that he consistently pursued good outcomes for the Indigenous communities and put his reputation on the line for the benefit of the Respondent.
In his view, Mr Scantlebury considers that he experienced bullying behaviour and a lack of empathy with respect to his personal journey over the last few years. He said that when he needed the satisfaction and belonging to a solid team and mission, he felt unsupported, pressured and excluded. He stated that there were clear cases of gaslighting by Mr Layton. Mr Scantlebury said that a significant hazard was raised but pushed under the carpet despite similar incidents being taken seriously. One example of ill-treatment is when he was booked on a flight, but it was in the name of Mr Layton, with Mr Latyon insisting Mr Scantlebury should fly in his name. Mr Scantlebury refused to do so.
Mr Scantlebury stated that a request to temporarily reduce hours resulted in the issue of a Performance Improvement Plan (PIP) being implemented and it was an effort to have him removed from the business. He said this effort could have been expended by assisting him in ways such as helping him access income protection insurance that was part of his Plum Superannuation Scheme that was a default for BHP employees.
Mr Scantlebury said he followed the advice of the mental health training that the Respondent required employees to complete each year and reached out for support. However, this action had led to the loss of his position. Mr Scantlebury claimed that the fitness for work policy was used without fair and just process to remove him from the business. Each time there was a point of discretion the choices were made with a view of reprisal and retribution, not assistance.
According to Mr Scantlebury, the PIP did not address his situation or the doctor’s recommendation to reduce hours for a short time. Rather, it increased the pressure to perform and contributed to Mr Scantlebury’s condition.
Mr Scantlebury considered that the termination process was masked by the Respondent as an attempt to protect his health. He considers that his superintendent and manager did little to reduce the impact of work on his health, and actually increased the load he was carrying. Mr Scantlebury believed that it could have contributed to his final condition where the Respondent had an opportunity to reduce the load. A significant example was that his PIP included the successful completion of a project that required critical personnel to travel from Victoria. At that point, the borders were closed due to COVID-19 control measures.
In Mr Scantlebury’s view, the Respondent had contributed to his current situation. In the first instance, he was excluded from Site due to being Indigenous as part of the COVID-19 response. He was then judged by a lack of output without the requisite off-site support. Mr Scantlebury advised that he was the only person in his team that was not allowed onsite except a contractor who was paid for a small time. He considered that his return to Site was not supported and while he was struggling with this, he had major trauma in his life, through no fault of the Respondent. However, Mr Scantlebury advised that instead of support and encouragement to rebound, he was pushed aside and pursued to remove him from the organisation. This process had not helped Mr Scantlebury’s situation.
As per his show cause response, Mr Scantlebury considered that some of the Respondent’s policies were not followed, and he was not provided with a response to this assertion.
Mr Scantlebury considered that 48 hours to respond to the show cause letter was inadequate. He had not been provided with any evidence as to efforts made by the Respondent to find him other work within his restrictions. He considered Mr Latyon and Mr Ginty took retaliatory action in respect of complaints he had made about them.
Mr Scantlebury considered that BHP should have worked with him and Plum Insurance to enable to access his salary continuance cover which would provide him with 75% cover.
Mr Scantlebury said he had been prepared to continue work at the Site, however he chose Dr O’Toole from the list of doctors from which he could choose, and it was based on Dr O’Toole’s report he could not return to Site.
Mr Scantlebury advised that reinstatement into a supportive role would have allowed him to regain his confidence. Employment prospects have been limited as Mr Scantlebury’s employment had predominantly been Project Work and there is little option for a staged supportive commencement into a new role.
Mr Scantlebury requested that he be reinstated to his employment with the Respondent as though he had never been terminated. Mr Scantlebury suggested that the Respondent could then work with Plum Insurance to recover their purported loss and continue to work with Plum Insurance to facilitate Mr Scantlebury’s rehabilitation. This process could last up until a total of two years to achieve full rehabilitation but obviously it will be evident sooner if there is not a possibility to achieve this and it would be appropriate to look at another solution of what Mr Scantlebury called, a reasonable termination.
Should reinstatement not be appropriate, Mr Scantlebury seeks compensation of six months without any deduction for the overpayment made to him. Mr Scantlebury stated that this would allow him to undertake appropriate therapy and courses to regain his confidence and focus.
Summary of the Respondent’s evidence and submissions
Evidence of Mr Byron Ginty
Mr Ginty is currently the Acting General Manager of Engineering for the Respondent. The Respondent owns and operates the Blackwater Mine Sites in Blackwater. He has been employed by the Respondent for approximately 5.5 years.
In his nominal role as the Engineer Manager, he reported to Craig Wainwright, the General Manager of Engineering at the time. In the Engineering Manager role, he was broadly responsible for:
·all projects on the Site;
·managing the Site’s capital portfolio;
·prioritising, planning and executing projects in the capital portfolio
·asset integrity and management of business critical equipment;
·management of change system and engineering standards; and
·maintaining the site’s technical blue print.
In his current role as Acting General Manager, Engineering, Mr Ginty looks after all the Engineering department, including 13 Engineering Managers. The other responsibilities of the role are similar to that of the Engineering Manager role but for the Respondent’s Engineering department as a whole as opposed to the Site only.
Mr Ginty explained Mr Scantlebury’s role was required to be predominantly performed at the Site because of the nature of the work to be performed. In this role, Mr Scantlebury was required to be on Site undertaking inspections, executing and implementing design solutions, and liaising with stakeholders and contractors on Site.
Management of Mr Scantlebury’s employment
Mr Scantlebury reported to the Project Superintendent on Site, Mr Jarrod Layton. At the time, Mr Layton reported to Mr Ginty as the Engineering Manager. Mr Layton was responsible for managing Mr Scantlebury on a day-to-day basis, whereas Mr Ginty had limited day-to-day interactions with Mr Scantlebury consisting of only occasional check-ins or informal conversations. However, Mr Layton kept Mr Ginty informed about the management of Mr Scantlebury by way of frequent verbal updates. Mr Layton would also copy Mr Ginty into any formal correspondence issued to Mr Scantlebury.
Mr Ginty became more directly involved in the management of Mr Scantlebury’s employment from around June 2021 up to the termination of his employment on 11 March 2022.
Mr Ginty explained that Mr Layton is unable to give evidence in these proceedings because he is unwell and has been absent from work on sick leave since 30 May 2022.
Mr Ginty advised that his understanding of the matters pertaining to the management of Mr Scantlebury’s employment, and the events leading up to the dismissal, is based on his direct involvement in them, or otherwise his review of the relevant business records where those matters were not personally known to him.
Performance issues from July 2020 to August 2020
Mr Ginty advised he commenced as Engineering Manager on Site on 27 July 2020. At the time, temporary working from home arrangements were implemented by the Respondent for employees in response to the COVID-19 pandemic. Mr Scantlebury was working from home at this point in time as part of this arrangement.
Shortly before Mr Ginty started working on Site, he had a discussion over the phone with Ms Glenda Bethel, Acting Superintendent on Site. Ms Bethel raised various issues with Mr Scantlebury’s performance and indicated that she intended to take him off of the Ramp 74 Project due to slow progress. After commencing work on Site, Mr Ginty advised it became very apparent that the main issue with Mr Scantlebury’s work was the level of productivity and slow progress on project work, particularly when Mr Scantlebury was working from home.
Mr Scantlebury returned to Site on 9 September 2020. By this time, all employees in the Engineering department were required to return to Site for contact hours. Extracted below is a copy of Mr Scantlebury’s Return to Work Orientation Form dated 9 September 2020:
“Concerns raised regarding their RTW:
No – Just catching up.
Agreement strategies/changes for managing these:
Just raise anything you need help with.…
List relevant training / site access requirements to be completed by the individual
NONE.”
Absences from September 2020 to January 2021
From 9 September to 30 October 2020, Mr Scantlebury:
· attended Site for 14 days;
· took 10 days of annual leave;
· took 4 days of sick leave; and
· was absent for 11 days without explanation and did not apply for leave for the absences.
Mr Scantlebury remained on full pay for this entire period, even for the days where his absences were unexplained and he did not apply for leave. Ms Bethel informed Mr Ginty that from 30 October 2020, she began following Mr Scantlebury up regarding his unexplained absences. On 30 October 2020, Ms Bethel copied Mr Ginty into an email sent to Mr Scantlebury requesting an explanation for his absence from Site that day. Mr Ginty was informed that no explanation was given and Mr Scantlebury did not apply for leave for this absence. The email is extracted below:
“Derek,
You have put leave in for Monday 02.11.2020 – which I have approved.
Can you please explain your absence today Friday 30.10.2020?
Thank you
Glenda Bethel”
In November 2020, Mr Scantlebury informed Mr Ginty that he was having some personal issues and required to take carers leave.
On 5 November 2020, Mr Ginty received email correspondence from Mr Scantlebury attaching a medical certificate stating that Mr Scantlebury was required to take carer’s leave to
look after his partner from 3 to 6 November 2020. Further, he required the following leave:
“Good Morning Byron
Certificate attached regarding my carers leave
My Partner [name] is planning to be admitted to a clinic on Friday and we expect her to be there for the next 3-4 weeks. I will not be onsite tomorrow.
During this time I will need to spend more time visiting her so my attendance onsite will need to reduce. I would expect to be able to maintain 3-4 days onsite but will need to either work from home for the rest or put them down as Annual Leave. Let me know what your thoughts are?
Thank you for your understanding and support with this.
Regards,
Derek Scantlebury”
Attached to this email was a medical certificate completed by a Psychologist of Yeppoon Main Beach Psychology:
“To whom it may concern
04-Nov-2020
Re: Medical certificate of attendance: Mr Derek ScantleburyDear Sir/Madam
This letter is to confirm that Derek was urgently required to support his partner, [name] to medical appointments from 3rd November 2020 until and including 6th November 2020.
Yours sincerely,
Nicole Cooper
Psychologist MAPS
Provider#[redacted]”
At the time, Mr Ginty said he didn’t challenge Mr Scantlebury’s request due to the personal situation he was dealing with. It is noted the leave request came following the commencement of the leave.
On 26 November 2020, Mr Scantlebury provided an additional medical certificate advising that he was unfit for work from 23 to 27 November 2020. Again, the medical certificate came following the commencement of the leave:
“This is to certify that I have today examined:
Mr Brian Scantlebury,
[redacted]Brian states the incapacity commenced on 23/11/2020.
In my opinion, he will be unfit for work up to and including 27/11/2020.
Dr Michael Keating”
From November 2020 to 11 January 2021, Mr Scantlebury:
· attended Site for 16 days;
· took 18 days of annual leave;
· took 12 days of sick leave;
· was absent from Site for one day with no explanation and did not apply for leave for the absences; and
· often left early when present on Site with no explanation.
Mr Ginty stated that Mr Scantlebury remained on full pay for this entire period, even for days or hours where his absence was unexplained.
Application for specialist role
Mr Ginty advised that Mr Scantlebury previously stated to Mr Layton, words to the effect of, that he did not see himself staying in the Engineer Projects role with the Respondent and did not want to do any project work. Mr Scantlebury expressed that he was interested in Indigenous community work.
Around 2 February 2021, Mr Ginty said he became aware of a job opening for a Specialist role in the Indigenous Employment Team with the Respondent. Mr Ginty thought this may be of interest to Mr Scantlebury so he sent an email to him to see if he was interested in applying.
On 3 February 2021, Mr Ginty received an email from Mr Wainwright forwarding a separate email he had sent earlier that day to Ms Tamara Barden, Head of Human Resources, confirming Mr Scantlebury’s interest in the position.
On 22 March 2021, Mr Ginty received an email from Mr Layton indicating he had caught up with Mr Scantlebury about the Specialist role and the progress of his application. Mr Scantlebury had said that other persons had been interviewed for the Specialist role but that his application was still in progress. Mr Layton asked if Mr Ginty could follow up on Mr Scantlebury’s application and show his support for his application.
On 25 March 2021, Mr Ginty sent the following email to Mr Benjamin Proudfoot, Superintendent of the Heritage Team:
“G’day Ben – not sure if this is already on your radar but Derek has applied for the Specialist Indigenous Employment role. I don’t actually know if this role is even in your team, but I certainly support his application as he has demonstrated significant passion and commitment to this cause at Blackwater.
Regards,Byron”
Mr Proudfoot replied:
“Hi Byron,
Thanks for the email. Unfortunately this role is in HR and not my team. Best if you reach out the employment team and don’t know who they are, but will follow up and circle back.
Thanks
Ben Proudfoot
Despite the efforts of Mr Layton, Mr Wainwright and Mr Ginty, Mr Scantlebury’s application for the Specialist role was not successful.
Absences from February 2021 to May 2021
Mr Ginty said that from 1 to 19 February 2021, Mr Scantlebury:
· worked on Site from 1 to 3 February 2021;
· worked from home on 4 February 2021;
· took annual leave on 5 February 2021;
· worked on Site from 8 to 11 February 2021;
· took annual leave on 12 February 2021;
· took sick leave on 15 February 2021 but did not submit a leave request;
· worked at Wooribinda on 16 and 17 February 2021; and
· took sick leave on 18 and 19 February 2021.
Mr Scantlebury remained on full pay for this entire period, even for days where his absence was unexplained and no paid leave request was submitted.
Mr Scantlebury sent the following text message to Mr Layton on 15 February 2021:
“Monday, 15 Feb 2021 • 7:38 am
Hi Jarrod
Won’t be at work today
Will put another AL day in with Friday
Will be at Woori tomorrow and Wednesday for Greening Australia program but should se you Thursday morning
Won’t have any email or phone where we will be in Woori so I will check emails and calls today and tonight before leaving
Cheers
DerekThursday, 18 Feb 2021 • 6:13 am
Hi Jarrod
Got back to Blackwater last night
Unfortunately had Gastro all night
Still a bit touch and go but best not exposing anyone to this bug
Will have a sleeping tablet and try to get some sleep then will get online to do some work but will put sick leave in for today and ask if I can work from home tomorrow
Won’t be leaving Blackwater until things slow a little and I get some sleep”
Mr Ginty explained that community work was not part of Mr Scantlebury’s role as Engineer Projects. Prior approval was required to undertake such work. Mr Scantlebury, however, did not seek the required approval for 16 and 17 February 2021.
In or around February 2021, Mr Ginty had a verbal discussion with Mr Scantlebury where Mr Scantlebury disclosed some of the tragic events he had been exposed to in recent months. Mr Scantlebury sent the following email to Mr Layton, attaching a medical certificate advising that he would be unfit for work from 20 February 2021 to 20 March 2021:
“Hi Jarrod
I hope you have had a good weekend and a safe journey back to site.
Unfortunately I had a bit of a tumble emotionally on the weekend and need to have some more time off
The Drs have given me a month but I will be working on an earlier return as I would like to have some time up my sleeve should I need it when [name] returns home.
As you are aware this is not a physical issue but a mental health issue. The irony is I’m suffering from others mental health.
I have some community engagements I will continue to support as part of my work regardless as this is stuff I truly believe in and am happy to do in my own time and will be contactable by telephone if really needed. But will be spending quite a bit of time off grid so response may be very slow.
Regards,
Derek Scantlebury”
The period between 20 February 2021 and 20 March 2021 was meant to be taken as sick leave, however a formal sick leave request was never made by Mr Scantlebury. Mr Scantlebury remained on full pay for this period of time. Neither Mr Ginty nor Mr Layton followed up the sick leave request that should have been lodged due to two reasons. The first being that Mr Scantlebury represented the Respondent at the WACC opening in Woorinbinda on 3 and 4 March 2022, and second, Mr Ginty was aware of the circumstances and issues Mr Scantlebury had told him about during their previous verbal discussions.
In April 2021, Mr Scantlebury:
· worked on Site for 9 days;
· took 5 days of annual leave; and
· worked from home for 7 days.
In May 2021, Mr Scantlebury:
· worked on Site for 11 days;
· took 1 day of sick leave; and
· worked from home for 9 days.
From February 2021 to May 2021, due to the personal circumstances Mr Scantlebury was dealing with, Mr Layton and Mr Ginty continued to support Mr Scantlebury by approving all of Mr Scantlebury’s requests including leave requests and reduced hours on Site. Mr Ginty advised that they also stopped following up periods of absences for which leave requests were not submitted.
Performance issues in May 2021 and June 2021
On 10 May 2021, Mr Ginty received a text message from Mr Scantlebury stating that his head was all over the place and he was not comfortable with what was happening on Site. Mr Ginty called him at 4.45 pm to discuss the text message received. During this conversation:
· Mr Scantlebury made a complaint to the effect of, “the Company did not give me a car and what type of company does that”;
· Mr Ginty said words to the effect of ,“I was not around when this occurred; however, it is the Company’s policy that personal use company vehicles are for Superintendents only”;
· Mr Scantlebury made a complaint to the effect of, “the Company is bringing in new people which is disrespectful to existing people in the team”;
· Mr Ginty said words to the effect of, “I acknowledge there are some new people but we need some new people at this point in time because others had left the team”;
· Mr Scantlebury made complaints to the effect of:
· “I am an RPEQ and did not get consulted in planning out the portfolio”; and
· “I am a certified vehicle engineer and did not get included in equipment compliance”;
· Mr Ginty said words to the effect of, “I am keen to get you involved in this type of work”;
· Mr Scantlebury made a complaint to the effect of, “you must only care about the function but not the team as only a handful of the team is left”;
· Mr Ginty said words to the effect of, “that is not true”;
· Mr Scantlebury made a complaint to the effect of ,“you have told us only supervisors can talk to the crew”;
· Mr Ginty replied words to the effect of, “that is not true, you must have interpreted that wrong. You definitely need to be talking to the crew”;
· Mr Scantlebury made a complaint to the effect of, “we have way too many people for only a small portfolio and that I did 400M with only 10 people back in the day”;
· Mr Ginty said words to the effect of, “Yes I understand what you mean but we do need more people at the moment”;
· Mr Scantlebury made a complaint to the effect of, “Jarrod [Layton] sending emails late at night sends the wrong message”;
· Mr Ginty replied said words to the effect of, “I understand that but his heart is in the right place”
· Mr Scantlebury said words to the effect of, “I am upset I have been asked to focus on project management not community engagement” and “my heart is not in project management and my preference is to do community work”;
· Mr Ginty then committed to organising a time to discuss Mr Scantlebury’s concerns further in a meeting with him and Mr Layton.
Following his discussion with Mr Scantlebury, Mr Ginty set up a meeting with him together with Mr Layton for 25 May 2021. In the meantime, Mr Scantlebury’s performance at work continued to decline. One of the minimum deliverables for all employees in the Engineering team is to prepare a monthly report setting out updates in respect of the projects the employee is overseeing. On 24 May 2021, Mr Ginty was copied into email correspondence sent from Mr Layton to Mr Scantlebury following up a monthly report from April due to be submitted on 11 May 2021 that was still outstanding. The email is as follows:
“Hi Derek,
I wanted to reach out as I still haven’t seen your April monthly project report which was due on 11th May and another reminder sent last week on 20th and I haven’t received any feedback from you either if ref to not being able to complete.
Can we please catch up and understand why.”
Mr Layton informed Mr Ginty that he was frustrated because the Respondent’s Community Affairs team was approaching Mr Scantlebury directly to undertake community work but not notifying him. This meant Mr Scantlebury was engaging in community work over the duties he was required to perform in his role as Engineer Projects and without first seeking approval from Mr Layton or Mr Ginty.
On 25 May 2021, Mr Ginty met with Mr Layton and Mr Scantlebury to discuss Mr Layton’s email correspondence and Mr Scantlebury’s complaints and feedback from the previous fortnight. During this conversation:
· Mr Scantlebury said words to the effect of:
· movement to the communities team would have been an easy out for everyone;
· he was not sure how the permanents fit in with changes to the team;
· he was dubious on new people on the team and whether they deserve a spot;
· he wanted to be considered as lead;
· he had issues with doing the monthly report;
· he had issues with project initiation; and
· he wants to be more involved in community.
· Mr Layton and Mr Ginty listened to all of Mr Scantlebury’s concerns and in response said words to the effect that:
· his role with the Company is Engineer Projects and the principal responsibility of this role is the management of projects;
· they are committed to allowing Mr Scantlebury to engage in some community work, but project work needs to be priority because his role is Engineer Projects;
· if Mr Scantlebury wished to participate in community work he would need to notify Mr Layton or myself and ensure his project work was completed first.
Mr Layton informed Mr Ginty that on 8 June 2021, a monthly performance review was conducted to ascertain whether Mr Scantlebury was meeting his key performance indicators and provide feedback regarding areas for improvement. This monthly project review was undertaken for all employees. Mr Ginty explained that Mr Scantlebury’s Development Plan Activity form indicated he failed to achieve any of his individual key performance indicators for the financial year. Mr Layton gave him written feedback in respect of areas for improvement in the new financial year.
June 2021 medical certificate
On 4 June 2021, Mr Scantlebury provided a medical certificate advising that he was receiving medical treatment for a non-work related injury for the period of 4 June 2021 to 30 July 2021 and would only be fit to continue his usual occupation at four days per week.
Mr Ginty and Mr Layton agreed to allow Mr Scantlebury to commence a flexible working arrangement immediately pursuant to which he would work on Site 3 days per week, work from home one day per week and take sick leave one day per week in accordance with the medical certificate.
In June 2021, Mr Ginty noted that Mr Scantlebury had worked on Site for 8 days, took 3 days of sick leave and was absent for 2 days where a sick leave request was not submitted, took 3 days of annual leave and worked from home for 6 days. Mr Scantlebury remained on full pay for this entire period, even for days where his absence was unexplained.
In or around June 2021, Mr Ginty said he escalated the situation to Mr Wainwright for assistance. On 30 June 2021, Mr Ginty met with Mr Wainwright, Ms Michelle McHugh, Employee Relations Team, and Mr James Smith, Human Resources Business Partner, to discuss next steps to support Mr Scantlebury. During the meeting, it was decided to draft a health management plan for Mr Scantlebury with the Health, Safety and Environment (HSE) team of the Respondent, and to manage Mr Scantlebury’s performance with a performance improvement plan.
Health Management Plan
Mr Layton informed Mr Ginty that on 1 July 2021, Mr Layton took steps to implement a health management plan for Mr Scantlebury. Mr Ginty said he was copied into the email from Mr Layton to Mr Scantlebury on this date asking to meet him to discuss the proposed health management plan. Mr Layton further informed Mr Ginty that around early July 2021, Mr Scantlebury was placed on an informal health management plan with the following accommodations made for Mr Scantlebury:
· sick leave to be taken on Mondays;
· Tuesdays to Thursdays were to be worked on Site; and
· Fridays to be worked from home.
Mr Layton told Mr Ginty that on 20 July 2021, Mr Scantlebury’s health management plan was finalised. The plan included the following accommodations:
· sick leave to be taken on Mondays;
· Tuesdays to Thursdays to be worked on Site;
· Fridays to be worked from home;
· engagement with a health specialist, Ms Balderson, once a week;
· continuation of routine appointments; and
· use of employee assistance program as required.
Performance issues and updated health management plan in July 2021 and August 2021
Mr Ginty was informed by Mr Layton that on 14 July 2021, an annual review of Mr Scantlebury’s performance was undertaken which indicated that he was still not fulfilling the minimum requirements of his role or meeting his key performance indicators. The review also indicated Mr Scantlebury had been absent on numerous occasions without explanation and had been acting disrespectfully towards his line leader.
On 3 August 2021, Mr Scantlebury provided a medical certificate advising he would only be fit to continue his usual occupation four days per week instead of five days from 30 July 2021 to 30 October 2021. Mr Layton and Mr Ginty thereby extended Mr Scantlebury’s health management plan with assistance from the HSE team to meet the restrictions advised by Mr Scantlebury’s treating medical practitioner.
On 24 August 2021, Mr Ginty advised that the health management plan was formally extended to 30 October 2021, with the same accommodations provided.
Performance Improvement Plan
Due to the ongoing issues with Mr Scantlebury’s performance, Mr Layton and Mr Ginty decided to commence a Performance Improvement Plan (PIP) process in conjunction with the Health Management Plan. Mr Ginty explained that the purpose of the PIP was to give Mr Scantlebury clear areas for improvement and performance goals to achieve. They would then have weekly catch ups to check in with Mr Scantlebury to track his progress and ensure he had enough support. Mr Ginty was informed by Mr Layton that on 25 August 2021, Mr Layton prepared a letter to be given to Mr Scantlebury to notify him that he would be required to work under a PIP. The letter, as sent to Mr Scantlebury on 25 August 2021, is extracted below:
“Dear Derek
PERFORMANCE IMPROVEMENT PLAN
I refer to our discussion on 25th August 2021 in regards to the requirement for you to work under a Performance Improvement Plan (PIP) (attached). The Plan seeks to address performance and behavioural gaps identified particularly in relation to recent performance and behavioural concerns as discussed with you.
Specifically, we note the following recent concerns relating to your performance:
· Under performance on project delivery with failure to manage projects without significant overrun on schedule, emergent scope and variations in execution, and failure to handover projects to the satisfaction of stakeholders.
· Under performance on project KPI delivery across your FY21 KPIs and your FY22 KPIs.
· Failure to notify your line leader of absence prior to the start of a shift on more than one occasion.
As a result of these concerns over the last 12 months, the Company has some serious concerns about your ability to work safely and in accordance with BHP policies and procedures and perform at the desired level within our team.
All employees are obliged to adhere to the Charter, Code of Conduct and other Company policies and procedures. This is a fundamental element of the employment relationship and breaches are taken very seriously.
The attached Plan is a tool to support you to improve your performance to the required standard. The Plan will provide you with specific performance expectations and measures in order to track your progress, and will capture any specific support (coaching, re-training etc.) that you may require to meet the Plan requirements. The Plan will be implemented for a three (3) month period. You have the opportunity to provide input and feedback in relation to the content of the Plan.
During the Plan, I will hold regular review meetings with you to discuss your progress. You are required to be fully prepared for the weekly review meetings. You should review your PIP prior to each meeting and have a response prepared in relation to each item identified in your PIP that informs me of the progress you have made against each item.
At the end of the three (3) month period, I will, in conjunction with Byron Ginty, Engineering Manager Blackwater Mine review your overall performance under the Plan.
A failure to address the performance and behavioural gaps identified or meet the expectations of your role throughout or at the conclusion of the PIP period may result in disciplinary action, up to and including termination of employment.
We remind you that the Company’s Employee Assistance Program (EAP) is available to you. The EAP provides a confidential counselling service, free of charge, and can be contacted on Gryphon Psychology, Ph: [redacted].
Should you have any questions please do not hesitate to discuss them with me.
Yours sincerely
Jarrod Layton”
Also on 25 August 2021, Mr Layton and Mr Ginty met with Mr Scantlebury and his support person, Ms Nicole Chenoweth, to provide him with a copy of the letter and discuss the proposed PIP. During this meeting, Mr Layton and Mr Ginty read through the letter sent to Mr Scantlebury outlining the implementation of the PIP. Mr Scantlebury became angry and said, “You haven’t supported me and haven’t set me up for success” and “The PIP is setting me up for failure”. Mr Ginty responded, stating, “The PIP sets out the minimum expectations of your role and we have supported you significantly”. Mr Ginty further advised stated, “We should target exactly what you need in terms of support through the PIP process”. Mr Scantlebury replied, “You have shown your hand”. After Ms Chenoweth left the meeting, and as he was leaving the meeting room, Mr Scantlebury said to Mr Layton and Mr Ginty, “You had better fasten your seat belts”.
Absences from August 2021 to September 2021
On 30 August 2021, Mr Layton received an email from Ms Jo Johnstone, Head of HSE regarding her concerns as to whether Mr Scantlebury was fit for work. Ms Johnstone recommended that Mr Scantlebury not attend work the next day and seek medical treatment as soon as possible. Mr Ginty understood that following receipt of that email, Mr Layton telephoned Mr Scantlebury and told him he did not need to come to Site on Tuesday, 31 August 2021 and he would get back to him about next steps as soon as possible.
On 31 August 2021, Mr Scantlebury provided a medical certificate from his treating practitioner stating he was receiving treatment for a non-work related injury and would be unfit to continue his usual occupation from 31 August 2021 to 30 September 2021.
On 31 August 2021, Mr Layton and Mr Ginty met with Ms Heycott, from the Employee Relations team, and Jarrod Good, the HSE Superintendent, to discuss the concerns regarding Mr Scantlebury’s fitness for work following receipt of the medical certificate from Mr Scantlebury. During this meeting, it was decided that:
· the PIP would be placed on hold;
· Mr Scantlebury would be directed to attend an independent medical examination (IME) due to the ongoing concerns regarding his health and potential safety risks;
· Mr Scantlebury would not be required to return to work until he has been assessed as being fit for work; and
· Mr Scantlebury would remain on full pay during the IME process.
Following this meeting, Mr Ginty understood that Mr Layton telephoned Mr Scantlebury and expressed concern for his wellbeing, told him the PIP would be placed on hold and that they would be in touch regarding next steps as soon as possible.
First Independent Medical Examination
On 2 September 2021, Mr Layton wrote a letter to Mr Scantlebury reproduced at [27]. Mr Scantlebury was offered a choice of three Occupational Physicians he could see. Mr Layton’s correspondence to Mr Scantlebury assured him that all three Doctors have a great understanding in mining and the human body. Mr Scantlebury selected Dr O’Toole.
Mr Scantlebury attended the IME appointment on 23 September 2021. He was declared unfit to perform the inherent requirements of the role, with a review in three months. On 20 October 2021, Mr Layton met with Mr Scantlebury and his support person to discuss the IME and next steps. Mr Layton informed Mr Scantlebury he would need to use his contractual paid leave entitlements and thereafter move to unpaid leave.
Mr Ginty understands that Mr Scantlebury said to Mr Layton that he was being unfair.
On 22 October 2021, Mr Scantlebury requested Mr Ginty reconsider the decision to move to unpaid leave on account of the Respondent’s leave policy stating that discretion may be afforded to pay leave in excess of entitlements. Mr Ginty responded that the discretionary decision must be made by a General Manager. Mr Ginty confirmed that Mr Wainwright had not approved paid leave when his entitlements were exhausted.
Due to an administrative error, Mr Scantlebury only had one day leave without pay and was then paid for the remainder of his three months’ absence. In answering questions from me during the Hearing, Mr Scantlebury accepted that he didn’t make any inquiries with the Respondent as to why he was receiving payment when he had been told it was not going to be paid to him. I asked him if he thought to bring it to the attention of a manager? He said no, the consequences of not getting paid would have been fairly dire.[1] Mr Scantlebury went further to say that he chose not to bring the payment to the attention of Mr Ginty or Mr Layton because he assumed they didn’t know he was getting paid. He was of the view that if he alerted them to the payment they would try and put a stop to him being paid.
Second IME and no alternative roles
As a result of the Second IME, Mr Ginty sent an email to Mr Wainwright on 31 January 2022 to inquire if there were any alternative roles in the Engineering department which could accommodate Mr Scantlebury’s restrictions of working from home and not working at the Site. Mr Wainwright responded as follows:
“Byron and Jarrod,
Partial or flexible home based office work is available for most roles within BMA engineering, but it just will not work on an ongoing or full-time bases for any individual. We need leadership and the execution of work physically on site in person. All of the project manager roles within the team and the broader business will have substantial site based requirements. I cannot see a practical way to accommodate Derek’s restrictions as a project manager.
We are in the process of preparing the draft work force plan for all of BMA Engineering. I have recently reviewed this so I can confirm that there are no suitable alternatives.”
Mr Ginty stated that at the meeting of 2 February 2022, when he was issued with the show cause letter, Mr Scantlebury said words to the following effect:
·The company has not supported me;
·The company has not given me an opportunity;
·There’s nothing more for me to say;
·You’ve shown your hand;
·You don’t care about mental health.
A meeting was scheduled for 10 March 2022 to inform Mr Scantlebury of the Respondent’s decision to terminate his employment. Mr Scantlebury insisted the meeting be recorded which was refused by the Respondent. The meeting was subsequently rescheduled to the next day.
On 11 March 2022, Mr Scantlebury attended the scheduled meeting. He insisted on recording it. I understand from Mr Ginty’s evidence the meeting lasted as long as it took for the Respondent to inform Mr Scantlebury his employment was terminated and he would be issued a termination letter. Following the meeting, Mr Ginty emailed to Mr Scantlebury the termination letter at [39].
Respondent’s submissions
Valid Reason
The Respondent submitted that the reason for Mr Scantlebury’s dismissal was that he was unable to perform the inherent requirements of his role as a result of the findings of the Second IME Report. Prior performance issues and absences set out in the background are irrelevant to the reason for dismissal. The Respondent argued that an employee’s inability to fulfil the inherent requirement of the job will generally provide a valid reason for dismissal relating to the employee’s capacity.[2] To this point, the Respondent noted the following observation of the Full Bench in Reseigh v Stegbar Pty Ltd:[3]
“… The assessment of whether there was a valid reason for the dismissal involves, amongst other things, determining whether the reason related to a person’s capacity or conduct or both. In this context “capacity”, as used in s.387(a) of the Act, means the employee’s ability to do the work he or she is employed to do. A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.” (emphasis added by the Respondent).
The Respondent submitted that assessing the validity of a capacity-related reason involves three considerations, being:
· whether Mr Scantlebury was capable of performing the inherent requirements of his role as at the date of the dismissal;
· whether Mr Scantlebury would be able to perform the inherent requirements of his role at some time in the future; and
· whether there was some reasonable adjustment which could be made to Mr Scantlebury’s role to accommodate his incapacity.
The Respondent argued that these considerations fall for assessment against the requirements of Mr Scantlebury’s substantive position, not some modified, restricted duties or temporary alternative position. In J Boag & Son Brewing Pty Ltd v Button, the Respondent noted the Full Bench’s finding that the applicant’s injury prevented him from performing important features of his job. Although the applicant had satisfactorily worked with his injury for almost a year on restricted duties, the Full Bench found this consideration alone was not sufficient to justify a conclusion that the dismissal was harsh, unjust or unreasonable.[4] The Full Bench indicated that consideration of a broader range of circumstances was required, including the extent to which the continued employment of the applicant would have constituted an unreasonable burden on the employer or other employees. On this basis the Full Bench found there was a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable.
In Bharadwaj v Transdev WA Pty Ltd t/a Transdev[2021] FWC 4639, the Respondent noted that Commissioner Williams found that continuing to accommodate the applicant’s absences until he had fully recovered from his medical condition for an additional four to six months would negatively impact the cost and efficiency of the respondent’s operations.
In the recent decision of Gee v Eastern Health[2022] FWC 932, the applicant argued her dismissal on the basis of incapacity to perform the inherent requirements of her role was unfair because the applicant could have performed her work from home. The respondent employer argued that there was no contractual right enabling the applicant to work from home and that it was an inherent requirement of the applicant’s role to be ready, willing and available to attend their place of work as and when required. Commissioner Wilson accepted that temporary work from home arrangements offered in response to COVID-19 public health directions were not sufficient to effect a permanent change in the requirement to work from the employer’s premises.
The Respondent submitted that in a case where the reason for dismissal relates to capacity, the Commission should have regard to the evidence available at the time of the decision to dismiss that relates to the employee’s capacity to perform the full duties of the position.[5] The assessment of capacity is determined by the Commission based on its assessment of the evidence.[6]
In Abeyratna v Iron Mountain Australia Group Services Pty Limited[2020] FWC 6657, the Respondent noted that the applicant was diagnosed with major depressive disorder and found to be unfit for work by way of an IME. The medical evidence furnished from the IME was “clear and consistent” and there was “no indication of when, or if he will ever be fit to [return to work]”. On this basis, Deputy President Sams said (at [48]):
“Given the unequivocal medical evidence at the time of the applicant’s dismissal, the respondent could have no confidence that he could [return to work],or have any confidence that he would ever be able to do so.” (amendments added by Respondent)
In this current matter before me, the Respondent submitted that Mr Scantlebury was plainly not able to perform the inherent requirements of his role of Engineer Projects as of 11 March 2022. His substantive role required his physical attendance on Site to undertake inspections of his on-Site projects, execute and implement design solutions for his on-Site projects, and liaise with stakeholders and provide instructions to contractors on Site.
The Second IME Report indicated that Mr Scantlebury was not fit to return to work on Site and his return to Site would give rise to a significant and foreseeable risk of further injury. By reason of the findings and restrictions in the Second IME Report, Mr Scantlebury was not fit to perform the inherent requirements of his role, which includes attendance on Site.
At the time of Mr Scantlebury’s dismissal, the Respondent advised it had no evidence before it to suggest that he would be in a position to perform the inherent requirements of his position in the foreseeable future. The Second IME Report indicated Mr Scantlebury should not return to the Site and that work from home restrictions to facilitate his return to work would be required on a long-term basis. In his show cause response, Mr Scantlebury provided no updated medical information to indicate his condition had improved following the second IME or that he was otherwise able to perform the inherent requirements of his role as Engineer Projects on Site.
In the circumstances, the Respondent submitted that there was no reasonable adjustment that could have been made to the Engineer Projects role so as to allow Mr Scantlebury to work from home on a permanent, long-term basis. While work from home on a part-time basis may be permitted, the inherent requirements of the role require physical presence on Site to progress project work. It was submitted that handing over Mr Scantlebury’s on-site duties to other employees would be an unfair burden given the majority of project work is required to be undertaken and progress on Site.
Finally, the Respondent submitted that it had no alternative roles available within Mr Scantlebury’s skillset, area of experience and qualifications that could accommodate the work from home adjustments required by the Second IME Report. For these reasons, the Respondent submitted it had a valid reason to dismiss Mr Scantlebury.
Procedural Fairness
The Respondent submitted that there was no procedural defect sufficiently material to render the dismissal unfair. The Respondent contended that Mr Scantlebury was notified of the reason for his proposed dismissal in a show cause letter sent to him on 2 February 2022, and in discussions on the same day. The reasons for the decision to terminate Mr Scantlebury’s employment were communicated both orally and in writing on 11 March 2022. The Respondent noted that Mr Scantlebury advances no submission to the contrary.
The Respondent further argued that Mr Scantlebury was given an opportunity to respond to that reason, noting that such requirement would be satisfied “where the employee is aware of the precise nature of the employer’s concern… and has a full opportunity to respond to this concern.”[7] Mr Scantlebury took up the opportunity in meeting with Mr Ginty and Mr Layton on 2 February 2022, by way of email on 4 February 2022 and in the termination meeting on 11 March 2022.
The Respondent noted that it is Mr Scantlebury’s allegation that:
· 48 hours was not an adequate amount of time to prepare the appropriate show cause response; and
· he required to access his work computer to prepare his show cause response.
The Respondent advised that its show cause letter indicated that the Respondent was considering termination of Mr Scantlebury’s employment on the grounds of incapacity to perform the inherent requirements of his role following the findings of the Second IME Report. Mr Scantlebury was provided with a copy of the Second IME Report one week earlier. Therefore, the Respondent contended that Mr Scantlebury was aware of the precise nature of the Respondent’s concern.
The Respondent disagreed that Mr Scantlebury required access to his work computer, or to any policies, because the concern in the show cause letter only related to the findings of the Second IME Report, which had already been provided to Mr Scantlebury. The Respondent further asserted that the letter only required Mr Scantlebury to confirm whether his non-work related injury had improved since the second IME on 10 January 2022 to enable his return to work or provide a written response regarding the concerns regarding his capacity to perform the inherent requirements of his role. Accordingly, the Respondent argued that the scope of the show cause letter was narrow and confined and did not involve responding to lengthy allegations. On this basis, the Respondent submitted that two days was a reasonable amount of time for Mr Scantlebury to provide a response.
The Respondent further submitted that Mr Scantlebury was not unreasonably refused a support person. He was offered the opportunity to bring a support person to each of his meetings with the Respondent during the IME process, the show cause process and the termination process.
As Mr Scantlebury was dismissed due to incapacity to perform his role, rather than unsatisfactory performance, the Respondent submitted that Mr Scantlebury was not required to be warned in accordance with s.387(e) of the Act.
Lastly, the Respondent accepted that it is a substantial enterprise and that it has a human resources function. Those factors however, according to the Respondent, are neutral here in circumstances where the Respondent’s process was procedurally sound.
Other relevant matters
The Respondent submitted that there were no other relevant matters sufficient to render the dismissal unfair. It is noted that Mr Scantlebury advances an array of matters which, whilst unclear to the Respondent, appear intended to engage with s.387(h) of the Commission’s consideration.
The Respondent noted that Mr Scantlebury referred to a disagreement with the Respondent when he started his employment regarding his contract and the provision of a vehicle. The Respondent asserted that this issue is not relevant to the reason of dismissal, the IME process or the show cause process and therefore, such argument should be rejected.
The Respondent noted Mr Scantlebury’s allegation that he has experienced bullying behaviour, a lack of empathy for his personal journey and had been unsupported, pressured and excluded during his employment. This is disputed by the Respondent, where the Respondent contended that a significant amount of support was provided to Mr Scantlebury while he was experiencing personal issues. Accordingly, the Respondent submitted this contention should be rejected.
Mr Scantlebury alleged that his request to temporarily reduce his hours resulted in the PIP which focussed on his sick leave and increased his workload. The Respondent however noted that the reason for dismissal was unrelated to his performance issues and the implementation of the PIP. Therefore, the Respondent submitted that this contention is not relevant to the dismissal, IME process or the show cause process.
The Respondent refuted Mr Scantlebury’s allegation that the Respondent incorrectly used the Fit for Work – Physical and Psychological Impairment Management, Black Water Mine Procedure (PPI Procedure) to terminate his employment without fair and just process, or procedural fairness. The Respondent instead argued that it had at all times acted in accordance with its procedure. Mr Scantlebury was not refused a support person at any meeting, he was referred to an Occupational Physician of his choice for medical consultation, he was paid throughout the IME process and all travel and medical expenses were paid by the Respondent. The Respondent explained that the Site Safety Executive (SSE) delegated the IME process to be undertaken by the members of the Health Safety and Environment team and Mr Layton in accordance with the PPI procedure. The SSE was kept informed of the IME process, and the Respondent argued that the PPI procedure does not require the SSE to be directly involved in the IME process. The Respondent advised that no return to work coordinator was appointed to Mr Scantlebury because the Second IME Report found that Mr Scantlebury was not fit to return to work.
The Respondent refuted the allegation that it should have assisted Mr Scantlebury to access income protection insurance as part of the Plum Superannuation Scheme. The Respondent accepted that Mr Scantlebury can make an income protection insurance claim. However, the Respondent asserted that it is not obligated to make the claim on Mr Scantlebury’s behalf. Nevertheless, this contention is not relevant to the reason for Mr Scantlebury’s dismissal, the IME process or the show cause process.
The Respondent denied the allegation that Mr Scantlebury was dismissed because of reprisal and retribution with respect to his request for support in respect of his mental health and Ethics Point complaints made by Mr Scantlebury. It was submitted that the evidence demonstrates that Mr Scantlebury was not dismissed because he requested mental health support or because he made Ethics Point complaints. Rather, the Respondent asserted that support was provided to Mr Scantlebury for his mental health. Mr Scantlebury was assessed by an independent Occupational Physician, Dr O’Toole, who found Mr Scantlebury was not fit to perform the inherent requirements of his role in the Second IME Report. The Second IME Report was an independent finding of Dr O’Toole. Mr Scantlebury was subsequently dismissed because he was not fit to return to his role on Site. On this basis, this contention should be rejected.
The Respondent submitted that the allegation of the Respondent excluding Mr Scantlebury from site in response to the COVID-19 pandemic and that he was judged for a lack of output without requisite off-site support, should be rejected. In response to the health and safety risks posed by the COVID-19 pandemic, the Respondent advised that it implemented a temporary work from home policy for employees. This policy was not exclusive to Mr Scantlebury. Furthermore, Mr Scantlebury was not dismissed because of his performance issues and the implementation of the PIP. Accordingly, this contention is not relevant to the reason for Mr Scantlebury’s dismissal, the IME process or the show cause process.
The Respondent denied that it did not support and encourage Mr Scantlebury’s return to work whilst he was experiencing trauma and denied that it had pursued to remove him from the organisation. The findings in the Second IME Report were the independent expert findings of Dr O’Toole and not of the Respondent. Accordingly, the Respondent submitted that this contention made by Mr Scantlebury should be rejected.
Whilst noting that Mr Scantlebury said in his evidence to the Commission that he was prepared to continue to work at the Site, the Respondent had not offered any opportunity to return to work due to the findings of the Second IME Report. This report was the independent expert opinion of Dr O’Toole and not the Respondent. Mr Scantlebury was subsequently dismissed because Dr O’Toole found he was not fit to perform the inherent requirements of his role on Site and the Respondent reasonably decided that it could not accommodate the restrictions put forward by Dr O’Toole. On this basis, the Respondent asserted that this contention should be rejected.
In relation to Mr Scantlebury’s view that he has lost his income and the process of his termination has exacerbated his injury, the Respondent accepted that Mr Scantlebury may face some adverse consequences resulting from the termination. However, the Respondent noted a dismissal almost invariably has adverse consequences for the employee dismissed. Throughout the IME process, the show cause process and termination process, Mr Scantlebury had access to the Employee Assistance Program for any necessary support he required for his mental health.
In circumstances where Mr Scantlebury’s role is required to be performed on Site and no alternative roles were available to accommodate the requisite restrictions for Mr Scantlebury’s injury, the Respondent submitted that the dismissal was not unjust, harsh or unreasonable.
Remedy
The Respondent submitted that reinstatement of Mr Scantlebury would be inappropriate. Mr Scantlebury has not furnished medical evidence to demonstrate that he is fit to perform the inherent requirements of his role of Engineer Projects. The Respondent submitted that it is still unable to accommodate the restrictions required to facilitate Mr Scantlebury’s return to his role. The Respondent has no suitable alternative roles available that will accommodate the restrictions proposed for Mr Scantlebury.
Should reinstatement be found to be inappropriate, but compensation is nonetheless awarded, the Respondent noted that any award of compensation ought be determined in light of two matters engaging section 392 of the Act. First, Mr Scantlebury was accidentally overpaid $37,331.69 (gross), or $23,259.12 (nett), for his unpaid personal leave taken from 13 October 2021 to 10 January 2022. Mr Scantlebury was not entitled to paid leave for this period because he had exhausted his paid leave entitlements. The Respondent has not sought to obtain reimbursement of this amount. Second, Mr Scantlebury adduced no evidence demonstrating his attempts to mitigate his loss. The Respondent submitted that that absence of evidence ought operate to reduce the quantum of any compensation ordered.
On 13 October 2022, Mr Scantlebury provided evidence of his attempts to mitigate his loss.
Consideration
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[8]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[9] I will address each of the criteria set out in s.387 of the Act separately.
s.387(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)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
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.[10]
I am satisfied that Mr Scantlebury was dismissed on account of his capacity and not of his conduct. While Mr Scantlebury had, on many occasions, not attended for work without explanation, it appears he was never disciplined in respect of this conduct. In particular, at [65], Mr Ginty has detailed the unexplained absences Mr Scantlebury took between September 2020 and October 2020, which is not covered by the period where personal tragedy was experienced by Mr Scantlebury. It seems that during that early period, Mr Scantlebury had little regard for the Respondent’s leave policies and simply failed to attend for work for considerable periods of time. The Respondent, it seems, took no action to discipline him and in fact continued to pay Mr Scantlebury without making deductions to his leave balances.
Mr Scantlebury has submitted that there were malicious reasons for his dismissal with respect to Mr Ginty and Mr Layton. I do not accept his evidence and I am satisfied that the only reason Mr Scantlebury was dismissed was on account of his capacity. Mr Ginty and Mr Layton went to extraordinary lengths to accommodate Mr Scantlebury’s absences for a long period of time. Other than one conversation on 25 May 2021, they didn’t undertake formal counselling of Mr Scantlebury when he elected to do community work over his substantive duties without seeking prior approval. There was no maliciousness in their reasoning, and I am satisfied that they were not motivated to dismiss Mr Scantlebury for any reason other than he was unable to perform the inherent requirements of the role and he could not be accommodated in a suitable alternative role.
Mr Scantlebury was declared unfit to work at Site for a substantial period of time. I am satisfied that an inherent requirement of his role was to perform at least three days per week on Site. It is true that the Respondent had accommodated Mr Scantlebury working from home at the peak of the COVID-19 restrictions and had done so for numerous months. I accept that it did so on the basis of protecting Mr Scantlebury on account of his age and being an Indigenous Australian. Clearly, the Respondent did not obtain maximum productivity out of Mr Scantlebury and other Site-based employees during this particular period of time, through no fault of Mr Scantlebury or other employees. It was an accommodation the Respondent was prepared to make at that time for the safety of its workforce and the community.
Mr Scantlebury returned to performing work on Site in September 2020.
Having regard to the evidence of Mr Ginty, I am satisfied that in late 2021 and early 2022, the Respondent could not accommodate Mr Scantlebury performing work from home for the bulk or all of his working week. The very essence of the role requires work to be performed on Site, and Mr Scantlebury was unfit on account of a personal injury to perform work on Site.
By March 2022, Mr Scantlebury had been declared unfit to perform on Site for a period of over six months. He was unfit from 31 August 2021 and two medical assessments by an Occupational Physician in September 2021 and January 2022 declared him unable to resume his usual occupation for a considerable period of time. At no time during his employment did Mr Scantlebury inform the Respondent that he considered Dr O’Toole’s medical assessment of him to be incorrect. He only did so in these proceedings, yet failed to provide medical advice to contradict Dr O’Toole’s assessment.
I do not consider that the Respondent breached its procedures referred to by Mr Scantlebury in any way. When an employee experiences a non-work related illness or injury, an employer must do what it can reasonably do to accommodate a person’s restrictions. In the circumstances, it is not, in my view, required to move heaven and earth to find an alternative position for an ill or injured worker. It is not obliged to go to efforts required in a redeployment commitment in the same way an employer would pursuant to s.389(2) of the Act.
I do not consider that it was necessary for the Respondent to have reached out to all of its business units to try and accommodate a work-from-home arrangement for Mr Scantlebury in the hope that he could temporarily perform such a role until he was fit to return to his substantive duties, whenever that might be. He had been incapacitated for a considerable period of time and the Respondent was entitled, at some point, to end the employment and fill the role on a permanent basis. In coming to this conclusion, I have had regard to Mr Scantlebury’s show cause response where he suggested that given BHP has a commitment to reach 3% Indigenous management representation prior to 2025, he considered it difficult to believe that there had been no alternate roles suggested by HR.
Further, I am not satisfied that the Respondent would have been obliged to continue to meet the cost of an independent medical examination beyond the two that it already had conducted.
For the above reasons, I am satisfied that there was a valid reason for the dismissal related to Mr Scantlebury’s capacity.
s.387(b) - Notification of the valid reason
I am satisfied Mr Scantlebury was informed that the Respondent considered he could not perform the inherent requirements of the role due to his incapacity.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Scantlebury was provided an opportunity to respond to the reason put for the dismissal by the Respondent. While the Respondent did provide just 48 hours for Mr Scantlebury to respond to the show cause letter issued to him, he did not request an extension. The Respondent then did not act for a further month to dismiss Mr Scantlebury. He did not seek to provide more information to the Respondent for its consideration in this time.
s.387(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
Mr Scantlebury attended relevant meetings with a support person and there was no refusal by the Respondent to any support person.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
Mr Scantlebury was not dismissed for unsatisfactory work performance.
s.387(f) - Whether the employer’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent is a large organisation with a dedicated human resource management specialist. The consideration within the Act is whether there was an absence of a dedicated human resource specialist, and it is implied that a smaller organisation might not be in a position to properly inform itself of the necessary procedures to follow than a larger organisation. The consideration is not whether the dedicated human resource management specialist handled the matter poorly or gave incorrect advice.
s.387(h) - Other matters
Mr Scantlebury had three years’ service at the time of the dismissal. I have had regard to his age, geographical location and skillset.
I have reflected on the financial impact the dismissal had on Mr Scantlebury. Mr Scantlebury was critical of the Respondent for not taking the initiative to look into income protection insurance avenues available to him. For the large part of the time Mr Scantlebury was incapacitated, he was incorrectly paid ongoing wages by the Respondent. Mr Scantlebury suspected his managers did not know of this and he was not inclined to inform them of this.
It was available to Mr Scantlebury to make his own inquiries with Plum Superannuation Scheme while he was employed so that he could understand any ramification being dismissed might have on his ability to make a claim. If he had made relevant inquiries he could have then shared this with his managers and it may or may not have assisted with their decision making. It is unclear if permitting Mr Scantlebury to remain employed but on extended unpaid leave would have assisted Mr Scantlebury’s insurance claim. The Respondent should not be criticised on account of Mr Scantlebury’s inaction.
Conclusion
I have determined that there was a valid reason for the dismissal.
I have determined that Mr Scantlebury was informed of the reason for the dismissal.
I am satisfied Mr Scantlebury was given an opportunity to respond to any reason related to his capacity.
There was no unreasonable refusal by the Respondent to allow Mr Scantlebury a support person.
The reason for the dismissal was capacity, not performance.
The Respondent is not small and there is no absence of a dedicated human resource management specialist which impacted on the procedures followed.
I do not consider that there are other relevant matters which would satisfy me that the dismissal was harsh, unjust or unreasonable.
I determine that Mr Scantlebury’s dismissal was not harsh, unjust and unreasonable. The application is dismissed.
COMMISSIONER
[1] Transcript PN44.
[2] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [29].
[3] [2020] FWCFB 533 at [52].
[4] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022 at [22]-[27], cited with approval in Jetstar Airways Pty ltd v Neeteson-Lemkes [2013] FWCFB 9075 at [53].
[5] Jetstar Airways Pty Ltd v Neeteson-Lemkes[2013] FWCFB 9075, [54]-[55].
[6] CSL Limited v Chris Papaioannou (2018) 273 IR 168, [38]-[39], [76]-[78].
[7] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, [26]; citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
(Wilcox CJ).
[8] (1995) 185 CLR 410, [465].
[9] Sayer v Melsteel[2011] FWAFB 7498 at [20].
[10] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
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