Chris Papaioannou v CSL Limited T/A CSL Behring
[2018] FWC 3908
•4 JULY 2018
| [2018] FWC 3908 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Chris Papaioannou
v
CSL Limited T/A CSL Behring
(U2017/7855)
COMMISSIONER PLATT | ADELAIDE, 4 JULY 2018 |
Application for an unfair dismissal remedy – whether valid reason relating to capacity – whether dismissal harsh, unjust and unreasonable – valid reason found – harsh, unjust and unreasonable in the circumstances – reinstatement appropriate.
Summary
[1] On 20 July 2017, Mr Chris Papaioannou lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer CSL Limited (CSL).
[2] Mr Papaioannou commenced employment with CSL on 1 July 2008 and was employed in a role as a Plasma Receipt Operator at the time he was dismissed on 6 July 2017.
[3] There is no dispute that the CSL Limited CSL Agreement 2015 (the Agreement) covered and applied to Mr Papaioannou’s employment. The Agreement at Part 9 contains a salary continuance scheme.
[4] In 2013, Mr Papaioannou contracted a medical condition that affected his gastrointestinal system and was unable to work for about 4 months.
[5] In late 2014 and 2015, the medical condition reoccurred and Mr Papaioannou took approximately 2 months off on each occasion.
[6] In late 2016 the medical condition reappeared but this time was accompanied by an anxiety disorder. Mr Papaioannou lodged an application under CSL’s salary continuance scheme contained in the Agreement.
[7] In April and May 2017, Mr Papaioannou and CSL obtained and exchanged medical reports.
[8] On 26 April 2017, CSL advised Mr Papaioannou that it was considering terminating his employment based on his capacity to perform his work.
[9] On 6 July 2017, CSL dismissed Mr Papaioannou.
[10] The matter was heard by Commissioner Ryan on 26 October 2017. On 6 November 2017, Commissioner Ryan found that the dismissal was harsh and reinstated Mr Papaioannou.1
[11] CSL appealed the decision and the appeal was heard on 5 February 2018.
[12] The Appeal Bench reviewed the applicable law on the issue of determining whether a valid reason existed in cases of capacity and determined that:
“The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.” 2
[13] On 16 February 2018, the Appeal Bench upheld the appeal, quashed Commissioner Ryan’s decision and remitted the matter to me for rehearing. 3
[14] Directions were issued on 5 March 2018 with respect to the provision of witness statements and submissions.
The rehearing
[15] Mr Nick Grealy from the AMWU represented Mr Papaioannou. Mr Patrick Wheelahan of counsel represented CSL.
Applicant’s Material
[16] The Applicant provided the following material to Commissioner Ryan:
• Submission of Chris Papaioannou dated 4 September 2017;
• Statement of Chris Papaioannou dated 4 September 20174 (including Annexures A and B); and
Statement of Dr Congiu dated 29 August 2017 (including Annexures A to E)5.
[17] CSL did not require Mr Papaioannou or Dr Congiu to be presented for cross-examination before Commissioner Ryan.
[18] The additional material provided by the Applicant as a result of the Directions was:
• An outline of submissions dated 5 April 2018;
• A further statement by Mr Papaioannou dated 5 April 20186; and
• A further statement of Dr Congiu dated 5 April 20187, to which was attached a copy of a report dated 31 March 2018.
Respondent’s Material
[19] CSL provided the following material to Commissioner Ryan:
• Submission dated 25 September 2017; and
• A statement of Anthony Kaye dated 25 September 2017 together with Annexures AK1 to AK668 (which included reports prepared by Dr Bloom).
[20] The additional material provided by CSL as a result of the Directions was:
• Submissions dated 5 April 2018;
• A statement of Dr Michael Bloom dated 5 April 2018 which contained a copy of a report dated 7 June 2017 9; and
• Submissions in reply dated 12 April 2018.
[21] The Commission has also had reference to the transcript of the earlier proceedings before Commissioner Ryan on 26 October 2017.
The witness evidence
Mr Papaioannou
[22] Mr Papaioannou was not required to be presented for cross-examination in the proceedings before Commissioner Ryan or this re-hearing.
[23] His evidence is relevantly summarised as follows:
• He was born in 1981.
• He was employed by CSL as a Plasma Receipt Operator on 1 July 2008.
• In 2013 he was suffering from sleep apnoea and chronic sinusitis and also contracted a gastroenterological condition. As a result, he was off work for a few months. CSL asked him to see Dr Bloom who agreed he was ready to return to work. Ms Kath Stent developed a return to work program which was approved by his general practitioner, Dr Yesser Alaskary.
• In late 2014 and 2015, his condition flared up again and he had more time off work.
• In late August 2016 he suffered a further reoccurrence of his illness. He had more time off work and was referred to a Psychologist, Dr Congiu.
• On 26 April 2017, Mr Anthony Kaye (Director, Base Fractionation and Haemostasis) wrote to him and arranged a meeting to discuss potential termination of his employment. An AMWU organiser accompanied Mr Papaioannou to this meeting. It was agreed that Mr Papaioannou would participate in an independent medical examination conducted by Dr Bloom.
• A report was provided by Dr Bloom.
• On 6 July 2017, a meeting was conducted with Mr Kaye and Mr Fridell (Senior Manager Workplace Relations). Mr Papaioannou was accompanied by an AMWU Organiser. Mr Papaioannou’s employment was terminated upon 4 weeks’ notice by letter dated 6 July 2017.
• The letter advised the reason for the termination was that CSL had formed the view that Mr Papaioannou did not have the capacity to perform his pre-illness duties now or in the foreseeable future.
• Mr Papaioannou’s 5 April 2018 statement advised that he had attended Dr Congiu on a regular basis since making his previous statement in September 2017, his condition had improved a lot and that he was confident he could return to work.
• Mr Papaioannou had not sought alternative work as he was focussed on returning to work with CSL and had not earned any income since the dismissal.
Dr Congiu
[24] Dr Congiu is a Consultant Psychiatrist who practices in the field of Adult Psychiatry. His qualifications and professional memberships were detailed in his statement dated 29 August 2017. I accept he is an expert witness.
[25] His evidence is relevantly summarised as follows:
• On 8 November 2016, Dr Congiu provided a report which detailed Mr Papaioannou’s condition and recommended that he be given time off work.
• On 9 January 2017, Dr Congiu provided a further report which expanded on Mr Papaioannou’s condition and advised inter alia that Mr Papaioannou was not able to perform the inherent requirements of the position as Plasma Receipt Operator and that being at the place of work was associated with high levels of anxiety. It further outlined that, ‘Mr Papaioannou is not able to return to work and resume the inherent requirements of the position. It is not possible at this stage to state when he will be able to do so.’
• On 8 April 2017, Dr Congiu provided a further report which advised that, ‘Mr Papaioannou has not been able to progress to any significant extent and in his current state Mr Papaioannou remains totally incapacitated for work in any duties and I am unable to give you a date when he will be able to do so. I believe that it would be safe to assume that it would be very unlikely that he will be able to resume work for at least the next six months or so pending reassessment.’
• On 8 May 2017, Dr Congiu provided a report clarifying his letter dated 8 April 2017 and said that the six month time frame referred to is, ‘meant to mean approximately 6 months, i.e. six months give or take one or two weeks. It does not mean seven months, eight months, nine months etc.’
• On 29 August 2017, Dr Congiu wrote to CSL concerning Mr Papaioannou’s prognosis and stated that, ‘at no stage have I stated nor I implied that his illness was likely to continue beyond six months approximately, I certainly did not mention to Dr Bloom a period of 24 months when I believe that six months is the likely time frame. I do accept that Doctor Bloom may have formed that opinion subsequent to our conversation, however my opinion has always been that six months is a more realistic timeframe.’ This information was not available to CSL at the time it determined to dismiss Mr Papaioannou.
• Dr Congiu’s 5 April 2018 statement provided an updated opinion on Mr Papaioannou dated 31 March 2018. That opinion noted that Mr Papaioannou had consulted with him regularly since August 2017 and that he last saw him on 28 March 2018. In 9 October 2017 he formed the opinion that there had been a clinically significant improvement (although Mr Papaioannou remained anxious and unmotivated), and a further improvement was noted on 9 November 2017. Further improvement was noted on 7 December 2017. Dr Congiu believed that from a psychiatric perspective Mr Papaioannou’s condition had remained stable. Dr Congiu formed the opinion that Mr Papaioannou was now fit to return to his pre-injury duties, subject to a graduated return to work program.
• Dr Congiu noted Mr Papaioannou was strongly motivated to return to work and in the absence of a new issue Dr Congiu believed he would successfully reintegrate into his previous place of work.
[26] CSL did not require Dr Congiu to be subject to cross examination.
Mr Kaye
[27] Mr Kaye is employed by CSL as the Director, Base Fractionation and Haemostasis, and managed the Plasma Receipt and Haemostasis teams.
[28] CSL provides salary continuance to employees who cannot attend work due to injury or sickness and are not entitled to workers compensation or paid personal leave in accordance with Part 9 of the Agreement. Eligible employees are entitled to receive up to 90% of their earnings for a maximum period of 104 weeks, subject to a maximum liability of $2M in any 12 month period. Over the period between April 2013 and the time of his dismissal Mr Papaioannou had received payments for 84 weeks.
[29] Mr Kaye’s statement detailed a number of periods that Mr Papaioannou was unable to work as a result of his illness in the period between April 2013 and October 2015. On each occasion CSL worked with Mr Papaioannou and health professionals such that he was able to return to work. Mr Papaioannou applied for and was granted salary continuance payments in accordance with the Agreement in April 2013, November 2014 and August 2015.
[30] Between August 2016 and 8 January 2018 Mr Papaioannou provided medical certificates stating that he was unable to attend work due to his medical condition. A further salary continuance application was made (and granted) in October 2016. CSL again worked with Mr Papaioannou and a number of health professionals including Dr Congiu to understand the issue and work on Mr Papaioannou’s return to work.
[31] On 8 April 2017, CSL received a report from Dr Congiu which stated that Mr Papaioannou had not been able to progress to any significant extent and remained totally incapacitated. Mr Kaye became concerned that Mr Papaioannou was unable to perform the inherent requirements of the role and there was no realistic opportunity that he would be able to return to work in the foreseeable future. CSL began to consider the termination of Mr Papaioannou’s employment.
[32] On 26 April 2017, Mr Papaioannou was advised in writing10 that CSL was considering terminating his employment on the basis that he could not perform the inherent requirements of his job and invited him and a support person to a meeting to discuss this and any further information that should be considered.
[33] On 3 May 2017, Mr Kaye and Mr Fridell met with Mr Papaioannou and his representative Mr Thomas from the AMWU. Mr Kaye outlined CSL’s position that Mr Papaioannou was unable to perform the inherent requirements of his position and invited him to provide any information he would like considered in relation to his ongoing employment within 2 weeks. Mr Papaioannou said he was motivated to return to work but that Dr Congiu said he needed to get his health right first.
[34] On 8 May 2017, Dr Congiu wrote to CSL clarifying his previous comments made on 8 April concerning when Mr Papaioannou might return to work. Mr Kaye understood from that letter that Mr Papaioannou might be able to return to work in six months give or take two weeks.
[35] On 15 May 2017, Mr Papaioannou sent Mr Kaye an email stating that he was not permanently incapacitated but would return to work in due course.
[36] On or about 17 May 2017, Mr Kaye considered the material that he was provided by Mr Papaioannou and Dr Congiu since 3 May 2017. Mr Kaye determined to get a second opinion on Mr Papaioannou’s condition and prognosis.
[37] On 30 May 2017, Dr Bloom examined Mr Papaioannou and provided a report to Mr Kaye on 7 June 2017.
[38] Mr Kaye considered Dr Bloom’s report and noted the description of the illness, the finding that Mr Papaioannou was currently unfit for work and that Mr Papaioannou would not return for at least 12 months and possibly up to 24 months.
[39] Mr Kaye reached the conclusion that Mr Papaioannou was not able to perform his job and there was no way of knowing with sufficient clarity when he might be able to return to work.
[40] Mr Kaye determined to terminate Mr Papaioannou’s employment and on 26 June 2017 wrote to Mr Papaioannou, enclosing Dr Bloom’s 7 June report, and arranged for a meeting to be conducted on 6 July 2017.
[41] At the 6 July meeting which was attended by Mr Fridell, Mr Papaioannou and Mr Thomas from the AMWU, CSL terminated Mr Papaioannou’s employment and provided him advice to that effect in writing.
[42] Mr Kaye gave evidence before Commissioner Ryan and accepted that the reasons for the dismissal were based on Mr Papaioannou capacity and that it was not foreseeable that Mr Papaioannou would return to work. In cross-examination Mr Kaye said he preferred Dr Bloom’s report over the report of Dr Congiu.
[43] Mr Kaye was not cross examined in the rehearing and relied on his statement which had been filed in the earlier proceeding.
Dr Bloom
[44] At the first hearing Dr Bloom’s reports were submitted through Mr Kaye’s statement.
[45] At the rehearing Dr Bloom provided a witness statement dated 5 April 2018 with a report dated 7 June 2017 attached.
[46] Dr Bloom is a specialist Occupational and Environmental Physician. His qualifications and professional memberships were detailed in his statement dated 5 April 2018. I accept he is an expert witness.
[47] Dr Bloom last examined Mr Papaioannou on 30 May 2017.
[48] Dr Bloom’s report dated 7 June 2017 makes observations about Mr Papaioannou’s medical condition and its impact upon him and agrees with Dr Congiu that Mr Papaioannou is currently unfit for work.
[49] As to prognosis Dr Bloom’s report contains the following statements;
• At this stage prognosis is guarded, and Mr Papaioannou’s capacity to commence a return to work programme will depend upon his response to treatment, with a considerable improvement in his overall level of function.
• In my opinion Mr Papaioannou is not currently fit to perform the inherent requirements of the position, or any other work for that matter, because the immediate or early return to work is likely to further exacerbate his illness.
• This man’s prognosis is uncertain. Before he has the capacity to trial a return to work, he will need to respond very positively to further treatment. I think it is optimistic to anticipate that he will be well enough to commence and sustain a graduated RTW program within the next approximately 12 months.
• The prognosis for his illness is considered guarded, and I think it optimistic to anticipate a durable return to work – even on a part time basis – much before about 12 months, and even this is uncertain.
• It is not possible to predict with any degree of confidence just when he will have the capacity to sustain a return to work, but at this stage I would be cautiously hopeful that this could occur within 12 to 24 months.
[50] Dr Bloom gave evidence at the rehearing and was cross examined, his relevant evidence is summarised as follows:
• If Mr Papaioannou responded well to treatment this could improve his prognosis. 11
A reduction in use of Diazepam could indicate a reduced level of anxiety or that he was less exposed to anxiety producing situations. 12
• Mr Papaioannou’s condition would not go away but could be managed - like diabetes. 13
Dr Bloom was unable to review his comments in the report about prognosis as he had not seen Mr Papaioannou since then. 14
• It was possible that Mr Papaioannou could return to work within 12 months of his last examination. 15
He accepted that there has been a change in Mr Papaioannou’s condition. 16
• Dr Bloom deferred to Dr Congiu on Psychiatry and his prognosis on conditions within that specialty. 17
Enterprise Agreement
[51] The Agreement contains provisions concerning salary continuance as set out below
“PART 9: SALARY CONTINUANCE
Salary Continuance is the provision of income maintenance by CSL for employees (subject to the terms detailed below) who are off work as a result of injury and/or sickness and have no entitlement to workers compensation and have exhausted their personal leave entitlements.
3 Scope
Salary Continuance applies to all eligible employees at Australian locations of CSL Limited.
4 Eligibility
Salary Continuance is available to short-term, full-time and regular part-time employees of CSL Limited for the period of their employment only. Casual employees are excluded.
To be eligible for salary continuance, employees must have performed at least 36.75 hours of work (pro rata for part-time employees) for CSL Limited.
Short-term employees will receive Salary Continuance only for the period of their contracted period of employment, ceasing when their current contract was due to expire.
Employees who are on probation (full time and part time) will receive salary continuance only for the period of their probation. Salary continuance will cease automatically if their probation is not satisfactorily completed, and their employment is terminated. If probation is satisfactorily completed - then salary continuance will continue on the conditions set out above.
5 Commencement of Salary Continuance arrangements
Salary Continuance starts from 1 July 1999 for employees who were already employees of CSL Limited as at this date, and for employees who joined after this date, from the date their employment commenced.
Salary Continuance was agreed as part of the 1999 CSL Enterprise Agreement at the approximate cost of a 1 % salary increase.
6 Definitions
Application means an application by an eligible employee for Salary Continuance under Part 9 of this Agreement.
Injury means a physical injury caused by a violent, external and visible means which occurs fortuitously when covered by this Agreement and which results in Temporary Total Disablement or Temporary Partial Disablement within six (6) calendar months from the date of its occurrence, but does not include any pre-existing condition.
Sickness means sickness or disease which solely and independently of any other cause is first contracted or which the employee first becomes aware of when covered by this Agreement and which continues for a period of a minimum of seven consecutive days from the date of commencement of medical treatment by a legally qualified medical practitioner and excludes any pre-existing condition.
Temporary Total Disablement means that as a result of injury or sickness, the employee is wholly and continuously prevented from engaging in his or her usual occupation in Australia and they are not performing any other remunerative work.
Temporary Partial Disablement means disablement, which prevents the employee from carrying out a substantial part of the normal duties of his or her usual business or occupation in Australia and they are not performing any remunerative work.
Totally Disabled means the employee is so ill or injured that they are unable to carry out any one duty, or combination of duties, which are critical to the proper performance of their usual occupation and they are not performing any remunerative work.
Average Weekly Earnings (AWE) means an employee’s average weekly earnings in the previous year (12 months) immediately preceding Injury or Sickness including overtime, shift penalties and allowances.
Base Rate means an employee’s normal salary plus shift penalties in the case of shift employees.
Income means ninety (90%) percent of an employee’s Average Weekly Earnings (AWE) for up to 104 weeks. Income shall not be payable for more than 90% of the employee’s AWE and in any event not more than an amount equal $142,415 (equivalent CSL Level 7 from 1 July 2015 and indexed annually by the Agreement outcome of 3.25% excluding employer superannuation) in any one year. Superannuation contributions (employer and employee) will be calculated on 90% of base rate.
Pre-Existing Conditions means any pre-existing condition that an employee is having or has had treatment for or advice for treatment or is on medication for, in the six (6) calendar months prior to 27 October 1999.
Compensation means accrued sick leave, Worker's Compensation benefits, transport accident or other statutory compensation schemes.
Alternate Duties means a range of different duties within an employee’s department, which may be provided during the Salary Continuance period. These duties are temporary in nature and take into account medical constraints. At no stage are these duties to be regarded as permanent.
Rehabilitation Provider means a person who has gained qualifications in rehabilitation or related fields and can demonstrate appropriate experience to provide or co-ordinate occupational rehabilitation services.
Rehabilitation is a restorative process which seeks to return an injured or sick person to their pre-injury/sickness status as soon as is medically possible.
Remunerative Work is work that the employee is engaging in outside of CSL for which they are paid, where there is capacity for the employee to undertake similar work (within Doctor restrictions) for CSL. This does not include income derived from investments nor income derived from running your own business. This includes income obtained where the employee has the ability to return to work on a rehabilitation program within their ordinary hours of work and subject that the employer is able to provide those suitable duties within the Department.
7 Benefits
Please note that these are subject to the exclusion and limitation of benefits clauses set out below.
The Events | What benefit will be received? |
Injury and sickness (as each are defined) that result in: | |
1 Temporary Total Disablement | 1 The amount per week as defined under "income" in the Definition section i.e.: 90% of an employee’s AWE |
2 Temporary Partial Disablement | 2 During such disablement the employee is able to return to work in a reduced capacity. The benefit payable is 100% of their weekly wage whilst at work and 90% of AWE whilst on Salary Continuance. |
8 Exclusions
Salary Continuance shall not apply to Temporary Total Disablement or Temporary Partial Disablement caused by or resulting from:
(a) Any consequence of war, invasion or civil war.
(b) An employee being a pilot or crewmember of any aircraft; or engaging in any aerial activity except as a passenger in a properly licensed aircraft.
(c) Intentional self-inflicted Injury or attempted suicide.
(d) Pregnancy, childbirth or miscarriage other than a complication arising from any of those conditions which requires hospitalisation in the first thirty-three (33) weeks of pregnancy. No benefit shall be payable during any period of Maternity Leave or for any complications arising after the thirty third week of pregnancy.
(e) Any professional sporting activities where income is received.
(f) A criminal or illegal act committed by an employee.
(g) An employee being under the influence of intoxicating liquor, having a blood alcohol content over the prescribed legal limit or being under the influence of any other drug unless the drug was prescribed by a legally qualified medical practitioner.
(h) Any pre-existing condition (see definitions).
9 Limitations on benefits
(a) Salary continuance shall not be payable:
(1) Under more than one Injury or Sickness in respect of the same period of time.
(2) Under any Injury or Sickness in excess of the benefit period.
(3) For the waiting period where applicable.
(4) For more than ninety (90%) percent of an employee’s Average Weekly Earnings (AWE) for up to 104 weeks. Compensation shall not be payable for more than 90 percent of the employee's AWE and in any event not more than an amount equal to the annual salary of the CSL level 7 minimum rate (excluding employer superannuation) in any one year.
(5) Beyond the date of the employee’s death.
(6) In respect of any disablement which entitles the employee to benefits under any other insurances or Workers' Compensation, Transport Accident Legislation or other statutory Compensation Schemes (statutory benefits).
(7) For any time during which the employee is entitled to sick leave payments.
(8) For any time where the employee is receiving an income from other Remunerative Work.
(b) Compensation for a period of less than one week will be paid pro rata of the weekly benefit for each day during which disability continues.
(c) If an employee suffers a recurrence of Temporary Total or Temporary Partial Disablement from the same or related cause or causes, the subsequent period of disablement will be deemed a continuation of the prior period unless between such period the employee has worked on a full-time basis for at least six (6) consecutive months, in which case the subsequent period of disablement shall be deemed to have resulted from a new injury or Sickness and a new waiting period shall apply.
(d) The benefit period in the case of Temporary Total or Temporary Partial Disablement is as follows:
(1) Disablement occurs under the age of 60: up to 104 weeks.
(2) Disablement occurs at age 60 or over the age of 60: up to 52 weeks. Benefits will be paid to short term employees only for the period of their short-term contract, ceasing on the date when their current contract expires.
(e) Salary Continuance will cease on the date the employee is terminated.
(f) Aggregate limit of liability:
CSL's total liability for all approved Applications during any 12-month period shall not exceed $2,000,000.00.
10 Conditions to be complied with
(a) In order for an Application to be accepted and paid an employee is required to abide with all the terms of this Agreement, to co-operate with CSL's Health and Injury Management Specialist (HIMS) as is required, to submit all necessary information, and to answer truthfully all questions relating to their Application - including the application form, medical statements and medical evidence.
(b) Fraud: Any fraud, mis-statement or concealment by an employee in relation to any matter affecting their Application will give CSL Limited the right, where appropriate to reduce or refuse payment.
11 Application procedure
(a) Applications will be managed by CSL's HIMS, who will be the primary contact person, and authorised officer for all administrative matters relating to Salary Continuance. In the absence of the HIMS a delegated authority will take responsibility.
(b) Written notice must be given to the HIMS within thirty (30) days of the occurrence of an illness or Sickness in respect of which an Application has arisen or may arise. Failure to provide such proof within the required time shall not invalidate or reduce any Application if it was not reasonably possible to do so, provided that the proof is provided as soon as is reasonably possible. Notice should never be given later than (12) calendar months from the time it would normally be required (the only exception being where an employee lacks legal capacity).
(c) The HIMS will upon receipt of notice provide the necessary application forms required. It is the responsibility of the employee to apply for Salary Continuance before sick leave entitlements have expired in order to ensure continuity of payment.
(d) The employee is responsible for completing all relevant sections of the application form, including the authority for release of medical information, and will assist and co-operate with the HIMS in every way possible in providing all necessary information, evidence and documentation as is required. Where an employee lacks capacity, the HIMS will make every effort to obtain this information from an appropriately authorised person.
(e) All certificates and evidence required by CSL Limited shall be furnished as required at the employee’s expense.
(f) Where further clarification is sought regarding the initial Application determination or ongoing eligibility an employee shall submit to medical examinations by a doctor/s nominated by the HIMS at CSL's expense.
(g) For the process guidelines, please refer to the Salary Continuance Procedure. This guideline covers the following:
(1) It is the responsibility of the employee to apply for Salary Continuance as early as possible and prior to exhaustion of their personal leave entitlements to ensure continuity of payments.
(2) It is the responsibility of the employee to provide notice to his/her manager or supervisor as soon as reasonably practicable to inform them of an absence in respect to injury or sickness and the expected duration of absence.
(3) Where the expected or actual duration of the absence is seven (7) calendar days or greater, the manager or supervisor will notify Payroll within one (1) business day that the employee has notified that they will be absent for seven (7) calendar days or greater in respect to an injury or sickness and the expected duration of the absence as notified by the employee.
(4) Where the expected or actual duration of the absence is seven (7) calendar days or greater, and where an employee’s entitlement to personal sick leave is less than fourteen (14) calendar days, CSL shall issue notification in writing to the employee which includes:
• the balance of personal sick leave entitlements
• a copy of the application for Salary Continuance
• a statement to the effect that should the employee elect to apply for Salary Continuance, it is the responsibility of the employee to make the application to the HIMS prior to exhaustion of their personal sick leave entitlements.
(5) Where an employee has exhausted his/her personal leave entitlements, and is to be placed on annual leave, Long Service Leave or leave without pay, CSL shall issue a reminder notification in writing to the employee which includes:
• the change in leave status
• a second copy of the application for Salary Continuance
• a statement to the effect that should the employee elect to apply for Salary Continuance, it is the responsibility of the employee to make the application to the HIMS within fourteen (14) calendar days of the date of this notice or thirty (30) calendar days of the exhaustion of sick leave entitlements, whichever is longest.
(6) Where CSL issues a notification in writing to the employee, it will be issued to the employee’s postal address as held by Payroll.
(7) Where the employee complies with the notification in either Clauses 4 or 5 above, and satisfies all other relevant provisions of this procedure, Salary Continuance entitlements will be paid from the exhaustion of personal sick leave entitlements or at the end of the relevant waiting period, whichever applies.
(8) Where the employee fails to comply with the reminder notification in Clause 5, however an application for Salary Continuance satisfies all other relevant provisions of this procedure, Salary Continuance entitlements are not payable for the period between the exhaustion of personal sick leave entitlements and the date the application for Salary Continuance is received by the HIMS.
(9) Failure to comply with the notification in Clause 5 shall not reduce or invalidate any claim if it was not reasonably possible to do so, provided that written notice is provided as soon as is reasonably possible, and should never be given later than twelve (12) calendar months from the time it would normally be required. Not being reasonably possible to do so here means that an employee is medically unable to comply with the notification, rather than unwilling or merely inconvenienced to do so and would include where an employee has been hospitalised for a period extending beyond the exhaustion of their personal sick leave.
(10) Where an employee lacks legal capacity due to injury or sickness, the provisions in clause 8 and 9 hereof do not apply.
(11) Where the injury or sickness is the subject of a claim for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), then notwithstanding the provisions of clauses 9 and 10 hereof, the employee shall have forty-five (45) days in which to make application under Salary Continuance with time running from the date upon which the later of the following events occur:
• thirty-one (31) calendar days after the date liability was denied by the Claim Manager where there has been no request for reconsideration pursuant to section 62 of the SRC Act
• there a request for reconsideration has been made pursuant to section 62 of the SRC Act, within thirty (30) calendar days of the date of the reviewable decision was issued pursuant to section 62 of the SRC Act, where there has been no subsequent application for review of the reviewable decision pursuant to section 64 of the SRC Act
• where an application to the Administrative Appeals Tribunal (AAT) for review of a reviewable decision has been made pursuant to section 64 of the SRC Act, within thirty (30) calendar days of the date the AAT issued their decision in respect to that section 64 application.
12 Payment of Salary Continuance
(a) Where the application for Salary Continuance is successful, the HIMS will liaise with Payroll to ensure that Salary Continuance payment is made, and will also advise the employee, his/her Supervisor and Human Resources (HR) on the outcome of the Application.
(b) Benefits become payable at the conclusion of the waiting period after receipt of due written proof of the Application.
(c) During periods of approved Salary Continuance employees will continue to accrue (Long Service Leave, annual leave), sick leave will not accrue. Continuity of service for other leave is not broken. Where an employee returns to work following a period of approved Salary Continuance, sick leave that would have accrued during the period will be re-credited.
13 Company property
(a) CSL Limited may, in its discretion, require the return of relevant CSL property during the Salary Continuance period.
(b) Personal novated vehicle lease payments will continue to be deducted during a period of Salary Continuance.
14 Waiting period
Salary Continuance injury and sickness benefits starts on the first day of total or partial disablement for which medical treatment was sought in respect of injury or sickness.
Salary Continuance will be paid commencing from the day following cessation of eligibility for any and all compensation benefits to which the insured person is entitled, except that:
(a) The waiting period for injury and sickness is seven (7) consecutive calendar days.
(b) The waiting period for Applications resulting from practicing or playing any physical contact sport is twenty eight (28) calendar days.
(c) Employees who are working 12 hour shift arrangements at the time of their Salary Continuance application will not be required to fulfill the seven (7) day waiting period.
15 Review of Applications
Where an Application is rejected and a review of that decision is sought by the applicant, the review will be processed:
(a) If applied for in writing to the Director, Human Resources within 14 days of the written rejection advice.
(b) The Director, Human Resources will convene a review panel as soon as is reasonably practicable. The review panel will be made up of an independent Chairperson, a CSL representative and a relevant employee representative. The Independent Chairperson will be agreed to by the parties to this Agreement.
(c) All relevant information will be submitted to the review panel to enable them to review the initial determination. Where deemed necessary by the panel further medical reviews may be sought.
(d) While the review process is being undertaken, an employee will have access to other types of leave to which they are entitled. Arrangements can be put in place where these entitlements are reinstated if the employee is subsequently successful in being granted Salary Continuance.
16 Rehabilitation
When an employee is on Salary Continuance, he/she may be offered the opportunity to participate in an appropriate rehabilitation programme, when the employees treating doctor recommends it is appropriate to do so. In establishing a suitable return to work programme the services of an external rehabilitation provider may be sought by the HIMS. This will be funded by CSL.
Where an employee who is on Salary Continuance is unable to perform their normal duties but has a capacity to perform alternate duties, this may be explored, and if possible, suitable alternative duties may be provided during the Salary Continuance period. These alternative duties are not to be interpreted as a variation of the employee’s contract of employment and are provided to assist with a return to normal duties. In all instances the employee’s treating doctor will be consulted to establish any necessary restrictions, and to check the suitability and safety of the duties being offered. Suitable alternative duties:
(a) Should be selected to suit employee’s physical, vocational, and psychological capacity.
(b) Are temporary, prior to the employees return to normal duties.
(c) Must be approved by the treating doctor.
(d) May be offered at the discretion of CSL.
Where possible, an employee on Salary Continuance participating in a graduated return to work programme, will schedule medical and associated appointments outside of their current work hours. Where this is not possible the employee will complete the work hours on an alternate agreed time/day.
17 Salary Continuance records
All documents associated with an application for Salary Continuance will be treated confidentially. Documentation will be managed by the HIMS and maintained in accordance with the applicable Privacy Legislation. When the Salary Continuance period ceases, documentation will be stored in accordance with EHS occupational Health Centre procedures.”
Consideration
Was the dismissal harsh, unjust or unreasonable?
[52] Pursuant to s.387 of the Act, 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.”
Valid reason - s.387(a)
[53] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd18which requires the reason for termination to be ‘sound, defensible or well founded.’
[54] There is no dispute that Mr Papaioannou was unable to fulfil the duties of his role at the time he was dismissed, the key difference between the parties is when MrPapaioannou would have been fit to return to work. Dr Congiu suggested that Mr Papaioannou could have returned to work in six months (give or take) and Mr Bloom suggested that period would be somewhere between 12-24 months.
[55] At the time of the dismissal on 6 July 2017, Mr Papaioannou had been off work for about 10 months. Mr Papaioannou’s medical condition was not a temporary absence as defined by s.352 of the Act. Even if I accept Dr Congiu’s prognosis at the time of the dismissal Mr Papaioannou was incapable of performing his role and at best he was approximately 6 months away from returning to work. I find that he was unable to meet the requirements of his contract of employment due to his lack of capacity and CSL had a valid reason to dismiss him.
Notification of valid reason - s.387(b)
[56] Mr Papaioannou was advised of the reason for his dismissal verbally and in writing on 6 July 2017.
Opportunity to respond - s.387(c)
[57] On 26 April 2017, CSL advised Mr Papaioannou that it proposed to dismiss him on the grounds of his capacity and he was provided an opportunity to respond to this position prior to his dismissal.
Any unreasonable refusal by the employer to allow Mr Papaioannou to have a support person present to assist at any discussions relating to dismissal - s.387(d)
[58] Mr Papaioannou was provided with an opportunity to have a support person and took advantage of same.
Warnings relative to unsatisfactory performance - s.387(e)
[59] This factor is not relevant in this matter.
Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)
[60] CSL is a large employer with a dedicated human resources management specialist.
Other matters considered relevant - s.387(h)
[61] The salary continuance provisions of the Agreement provided Mr Papaioannou with a benefit provided he continued to meet the conditions precedent.
[62] There is no evidence before me that the overall cap on benefit payments was a factor.
[63] Whilst the salary continuance provisions allow for termination (which would then result in the benefit ceasing) that does not mean I should disregard the impact of such a decision.
[64] But for his termination Mr Papaioannou could have continued to receive salary continuance benefits for a further period of 20 weeks.
[65] In my view, Mr Papaioannou’s dismissal denied him a benefit conferred by the Agreement. The fact that it may have been possible to dismiss Mr Papaioannou whilst he was receiving the benefit does not mean that such a dismissal could not be properly characterised as harsh, unjust or unreasonable.
[66] In my view, CSL’s decision to dismiss Mr Papaioannou prior to his exhausting the salary continuance benefit supports a finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
[67] The Explanatory Memorandum to the Act19 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[68] In Byrne and Frew v Australian Airlines Pty Ltd,20 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[69] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Papaioannou’s employment was harsh, unjust and unreasonable.
Remedy
[70] The relevant provisions of Division 4 of Part 3-2 of the Act state:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
… …
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[71] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.
[72] Mr Papaioannou seeks reinstatement and contended in his statement of 5 April 2018 that he was confident that he could return to work.21
[73] Dr Congiu contended that as at 31 March 2018 it was his opinion that Mr Papaioannou was fit to return to his pre-injury duties, and recommended a graduated return to work program over a period of 6 weeks.22 This evidence was not subject to challenge by CSL.
[74] CSL contends that reinstatement is not appropriate in that Mr Papaioannou does not have any capacity for work. That position is contrary to the unchallenged evidence of Dr Congiu.
[75] Dr Bloom’s knowledge of Mr Papaioannou’s current capacity to work was limited to his examination of Mr Papaioannou on 30 May 2017 which was the basis for his report on 7 June 2017. Dr Bloom has not examined Mr Papaioannou since that time. In cross-examination Dr Bloom deferred to Dr Congiu in relation to Mr Papaioannou’s psychiatric condition. Whilst Dr Bloom stated that Mr Papaioannou’s condition was one (similar to diabetes) which could be managed but would not disappear, he did not dispute Mr Papaioannou’s ability to have now recovered such that he could return to work.
[76] I accept that Mr Papaioannou has been fit to return to work since 31 March 2018 subject to a graduated return to work.
[77] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.
[78] CSL did not rely on any basis other than Mr Papaioannou’s capacity in respect to its opposition to reinstatement.
[79] I find that reinstatement to his pre-dismissal position with continuity of employment and service is an appropriate remedy and so determine.
[80] I find that pursuant to s.391(3), and considering the matters detailed in s.391(4), it is appropriate to order that CSL pay Mr Papaioannou 90% of his average weekly earnings for a period of 20 weeks, the amount which, but for his dismissal, he would have continued to receive as salary continuance payments. This amount represents remuneration lost because of the dismissal.
[81] I note that the 20 week period would have concluded prior to Mr Papaioannou becoming fit for work on 31 March 2018.
[82] Despite his fitness for work post 31 March 2018 Mr Papaioannou did not seek alternative employment based on his strong desire to return to CSL. In my view that is not a sufficient reason for Mr Papaioannou to fail to mitigate his loss. Accordingly. I do not propose to make any award for lost remuneration for the period after 31 March 2018.
[83] Taxation is to be paid on the amount determined.
[84] An Order23 reflecting this decision will be issued.
COMMISSIONER
Appearances:
N Grealy of the AMWU for the Applicant.
P Wheelahan of counsel, with permission for the Respondent.
Hearing details:
2018.
Melbourne.
May 11.
Printed by authority of the Commonwealth Government Printer
<PR608641>
1 [2017] FWC 5740.
2 CSL Limited T/A CSL Behring v Chris Papaioannou[2018] FWCFB 1005, [77].
3 Ibid, [78].
4 Exhibit A4.
5 Exhibit A3.
6 Exhibit A1.
7 Exhibit A2.
8 Exhibit R1.
9 Exhibit R2.
10 Exhibit R1 – Attachment AK57.
11 PN75.
12 PN82.
13 PN86.
14 PN91.
15 PN94-95.
16 PN101-102.
17 PN127-132.
18 (1995) 62 IR 371 at 373.
19 Explanatory Memorandum to the Fair Work Bill 2008.
20 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.
21 Exhibit A1 Paragraph 4.
22 Exhibit A2, Page 2.
23 PR608701.
0
4
0