Clive Wetton v Woolworths Limited

[2010] FWA 7538

[2010] FWA 7538

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clive Wetton
v
Woolworths Limited
(U2010/8181)

DEPUTY PRESIDENT BARTEL ADELAIDE, 1 OCTOBER 2010

Termination of employment - workers compensation - applicant instructing karate classes - whether misrepresented capacity to doctors - no valid reason for dismissal - dismissal harsh, unjust or unreasonable - hear further from parties as to remedy - Fair Work Act 2009, ss 386, 387, 391, 392, 394.

Introduction

[1] Clive Wetton has made application pursuant to s.394 of the Fair Work Act 2009 (“the Act”), alleging that his dismissal by Woolworths Limited (“the respondent” or “the employer”) on 12 April 2010 was harsh, unjust or unreasonable. He seeks reinstatement to his previous position and compensation for the intervening period.

[2] The reasons for dismissal are set out in the letter of termination 1 which was read to the applicant at the conclusion of a meeting on 12 April 2010. The relevant portion of that letter, is as follows:

“Further to the meeting held on 12 April 2010, I write to inform you of the outcome of the disciplinary investigation that has taken place subsequent to your suspension from work on 29th March 2010.

After careful consideration of the evidence, and your responses to the Company’s allegations against you, Woolworths has formed the view that you have been untruthful in your representation of your capacity for work as a consequence of the back disability originally sustained in May 2009 and aggravated in February 2010. Woolworths believes that you have deliberately misrepresented the level of your incapacity to your treating doctors, and that as a result, you have obtained compensation to which you are not entitled.

Specifically, Woolworths is of the view that the activities that you have been undertaking outside of work indicate that your capacity is much greater than you have been representing to your treating doctors.

Woolworths has based this view on statements that you have made, medical data obtained under authority, and the contents of surveillance which has been undertaken.

Woolworths is of the view that your actions as referred to above constitute serious and wilful misconduct in so far as you have deliberately made untrue statements for the purpose of obtaining entitlements under the Workers Rehabilitation and Compensation Act 1986. As a result there has been a serious breach of trust which makes the working relationship irretrievable.”

[3] In addition, a further issue was discussed at some length in the process leading to the applicant’s dismissal and in the evidence before me, concerning circumstances surrounding the applicant’s absence from work on 20 March 2010. It is clear that this matter was of concern to the employer and was the subject of considerable discussion in the interviews leading to the applicant’s dismissal. Notwithstanding its omission in specific terms from the termination letter, it is a relevant matter in reaching a conclusion on the validity of the dismissal.

[4] Germane to the circumstances surrounding the dismissal, is the applicant’s participation in a non-combat form of karate while on restricted duties for a work-related injury. It is uncontroversial that the applicant has been involved with his karate club in various capacities throughout his employment with the respondent, including periods when he was on restricted duties and on one occasion, 19 March 2010, when he was certified unfit to work.

[5] The dispute concerning the applicant’s involvement with karate instruction is whether these activities had the approval of his treating doctors and physiotherapist and whether the activities were consistent with the workplace restrictions determined by his treating doctors.

The evidence

[6] The following witnesses gave oral and written evidence:

The applicant (Ex A1); Mr Ben Dineen, Organiser for the Shop Distributive and Allied Employees Association (“the SDA”) (Ex A7); Dr Colin Mills, the applicant’s treating doctor (report dated 21 June 2010, Ex A11); and Mr Richard Barker, the applicant’s treating physiotherapist and acquaintance of the applicant through the karate club (report dated 30 June 2010, Ex A5). The respondent called Mr Ashley Battye, Human Resources Manager (Ex R5); and Mr Paul Wrangles, Return to Work Specialist (Ex R10).

[7] The relevant facts arising from the evidence, any conflicts and/or inconsistencies in the evidence of and between witnesses, together with reference to relevant documentary evidence are set out in the next section.

[8] The applicant’s credibility is an important issue in this matter. He was at times overly defensive under cross-examination. I have formed the view that this was generally a response to strenuous cross-examination by Mr Richter, counsel for the respondent, and frustration on the part of the applicant. At times he was prone to exaggeration in an attempt to bolster his case, especially in relation to his medical condition on particular occasions. These features of his evidence do not make the applicant a ‘good witness’, but neither do they undermine the overall integrity of his evidence in relation to key issues. Generally I find that he was a credible witness. His evidence was consistent in relation to key events and often supported by documentation. There are however some aspects of the applicant’s evidence that were not reliable and these are dealt with in the following section.

[9] Mr Dineen accompanied the applicant at interviews with the employer on 1 April and 12 April 2010 and took notes of those meetings, which were attached to his witness statement. I find that he was a credible witness.

[10] Dr Mills was a difficult witness. I gained the impression that he had formed a view about the actions of the employer and this coloured the manner in which his evidence was given. His answers to some questions seemed ill-considered and at times inconsistent, with a reluctance to make appropriate concessions. 2 However, his evidence in relation to the activities undertaken by the applicant as shown in surveillance footage was more considered and it is accepted.

[11] Mr Barker gave his evidence in a direct manner and I generally found him to be a credible and honest witness.

[12] The evidence of Dr Mills and Mr Barker is discussed in further detail later in the decision.

[13] I found Mr Battye   to be a credible witness who gave his evidence in a direct fashion and made appropriate concessions. There was some tension between his evidence concerning the extent to which Mr Wrangles was a participant in the events leading to the interviews with the applicant and that of Mr Wrangles, who tended to downplay his involvement. 3 I prefer Mr Battye’s evidence in this regard.

[14] In other respects I found Mr Wrangles to be forthright in his answers and his evidence is accepted.

The relevant facts

[15] The applicant commenced employment with the employer on 14 or 15 August 2007 as a casual storeperson at the Gepps Cross Distribution Centre and retained this position until his dismissal. At the conclusion of his employment he was working regular shifts on Monday to Thursday and on Saturdays, commencing at 5.30 am and finishing at 9.30am or 2.30 pm, depending on the available work.

[16] He suffered a work related injury in May 2009, diagnosed as a right scapula and thoracic strain. The employer accepted the applicant’s claim for workers compensation. He was placed on modified duties for several months and subsequently declared fit to return to pre-injury duties on 5 August 2009.

[17] At the time Mr Wetton was being treated by Dr Selvadurai. A report that Dr Selvadurai provided on request of the SDA 4 for the purposes of these proceedings, indicated that he discussed the applicant’s karate activities and it was agreed that the applicant could continue with them provided that there was no heavy participation or awkward movements. The report noted that, as the applicant’s condition improved over time, he was able to do more at karate.

[18] On Sunday 27 September 2009 the applicant competed in a karate competition and won a silver medal. He was cleared to perform full duties at the time, but had been absent from work on the previous two working days and did not attend for work on the following Monday. The applicant stated that he had been suffering from flu in the two weeks prior to the competition and that his car broke down on the Monday following the competition.

[19] Mr Battye stated that he became suspicious when he found out about the applicant competing in the titles, in view of his absences surrounding the day of the competition. He considered that the applicant may not have been dealing honestly with him. Nothing was put to the applicant at that time or subsequently.

[20] At the hearing the applicant produced a letter from the RAA dated 29 July 2010, which confirmed that the applicant’s car had to be towed away on 28 September 2009. 5 The applicant stated that he won the silver medal because there were only two competitors in his class, and he had lost as a result of suffering from the flu.

[21] As a casual the applicant received no payment for time not worked due to sickness. I need not make findings in relation to this incident, since it is not relied upon by the employer as a reason for dismissal.

[22] On 30 January 2010, the applicant aggravated the 2009 injury while picking orders. He subsequently consulted Dr Duong, who placed him on restricted duties until 16 February 2010. The restrictions were to “avoid reaching, overhead activities, lifting < 5kg”. Further details on the activities that could be undertaken were provided in a work capacity form completed by Dr Duong. 6

[23] On 2 February, the applicant had his first visit with Richard Barker. Mr Barker was a member of the same karate club as the applicant and while they knew of each other, neither described the other as a friend.

16 February 2010

[24] On 16 February the applicant rang the workplace and advised that he could not get out of bed in the morning and was going to see the doctor. His call was entered on the employer’s Pyramid system as a sick day, which, according to Mr Wrangles would reflect the information conveyed by the applicant when he rang in. Mr Wrangles stated that the applicant subsequently contacted him at 9.15am and advised that his soreness was connected to his work-related injury.

[25] This was a cause of some concern to Mr Wrangles. His evidence was that the applicant’s initial advice of sickness conflicted with the subsequent advice and “... all workers that ring in sick and then ring in later and say it’s WorkCover, obviously for them to be off work with their work injury obviously something has got to have happened, so it is up to me to find out and I will send a fax off to doctors just to explain that we do have suitable duties within the workplace and hopefully that the doctor will consider that they can still perform some type of duty.” 7

[26] The facsimile sent to Dr Duong 8 was consistent with this evidence, but it also included the following paragraph:

“Mr Wetton called in this morning stating that he was going to be off work sick. He then called me at approx 09:15 and stated that he was so sore he could not get out of bed, I am unsure as to why he would have trouble getting out of bed with a Trapezius strain. I just hope that Mr Wetton is not using you to get paid for his days off as sick days are a common occurrence for Mr Wetton.”

[27] At the least, this facsimile indicates that Mr Wrangles was suspicious of the applicant’s honesty and motives.

[28] Later that day the applicant had an appointment with Dr Duong, who issued a prescribed medical certificate (“PMC”) declaring him unfit for work on 16 February and fit for modified duties from 17 February to 2 March 2010. Work restrictions were imposed on lifting in excess of 5kg, pulling, pushing and twisting. 9 Dr Duong advised the applicant that he no longer wanted to treat him because he didn’t want to get involved in a workers compensation dispute.

[29] Mr Wrangles did not indicate any contrition under cross-examination for his ill-considered comments despite becoming aware of the impact it had on Dr Duong’s continued treatment of the applicant and the requirement for the applicant to seek a new treating doctor.

[30] Mr Battye said that after the worker obtained the PMC from Dr Duong he received information from some staff about the applicant’s activities, and on checking the karate club’s website learned that the applicant had been teaching karate classes. Mr Battye was vague as to who passed information on to him but I am of the view that it probably included Mr Wrangles, given his attitude as expressed in the letter to Dr Duong. In any event, this further aroused Mr Battye’s suspicions about the applicant and he instructed Quark and Associates to conduct surveillance of his activities. 10

[31] The applicant saw Dr Mills on 24 February and a PMC was issued stating that the applicant should avoid reaching, pushing and pulling. 11

[32] In the following weeks the applicant worked with restrictions and continued to see Mr Barker. On 15 March 2010 he undertook a weights session under the supervision of Mr Barker, and the following day the applicant stated that he suffered from general soreness which was exacerbated by his duties at work. He consulted Dr Soo, who issued a PMC stating that he was unfit for work from 17 March to 19 March 2010 and fit to return to modified duties on 20 March 2010. 12

[33] On 15 March Mr Battye had received the surveillance footage 13 from Quark and Associates, which showed the applicant instructing children’s karate classes on 19 and 26 February and 11 March 2010. The video footage showed the applicant doing a number of warm-up activities in front of the class. This included the applicant bouncing up and down, side to side and backwards and forwards on the balls of his feet; repetitive star jumps; high knee lifts; rotating his arms through 360 degrees; and hip rotations. On one occasion the applicant was shown, standing on his left leg and reaching forward with his right leg in a kicking motion.

20 March 2010

[34] The applicant was rostered for work on this day (Saturday) but did not attend, believing he had the week off. He said that it was only when he looked at the PMC on the Sunday did he realise that he was not covered for the Saturday. When he attended for work on Monday 22 March he told Mr Wrangles that Dr Soo had made a mistake on the PMC because he had told him to take the week off but hadn’t realised that he worked Saturdays. In evidence, the applicant stated that he was probably fit enough to work light duties on the Saturday 14 but did not attend because he thought he was covered by Dr Soo’s PMC.

[35] After the discussion with Mr Wrangles on 22 March, the applicant rang Dr Soo’s office to confirm what the doctor had meant when he said to take the rest of the week off. Dr Soo subsequently provided a letter to the effect that he was unaware that the applicant worked on weekends and that the PMC he issued should have included the weekend. 15 The applicant said that the employer wouldn’t accept the letter as sufficient for workers compensation payments and he was requested to obtain an amended PMC, which he did on 26 March.

[36] This is confirmed in the notes of Scott Johnstone, a Team Manager at the Distribution Centre, which record that he had a discussion with the applicant on 22 March 2010 at which time he requested that the applicant obtain an amended PMC for the Saturday. In the course of the discussion the applicant told Mr Johnstone that his injury was affecting his personal life and that he cannot practice karate anymore, he can only instruct. The notes also record that Mr Johnstone “... reiterated to [the applicant] the importance of him bringing in certificates and explained that the failure to bring in proof of absences may result in a written warning and further disciplinary action.” 16

[37] These notes support the applicant’s evidence that one of the reasons he obtained the PMC was because he was concerned that he may be subject to disciplinary action for being absent on the Saturday without advice to the employer.

[38] Dr Soo’s amended PMC stated that the applicant was not fit to attend work from 17 March to 20 March 2010. 17 It was Mr Battye’s view that in obtaining the amended PMC the applicant was representing to Dr Soo and to Woolworths that he was unfit to perform restricted duties on 20 March 2010, and that in claiming workers compensation for that day he was seeking a benefit to which he was not entitled.18 I interpose that the applicant did not in fact make a claim for workers compensation payments for this day.

29 March 2010

[39] On this day, the applicant was called to a meeting with Mr Battye and Mr Paul Quiney, the Operations Manager for the Distribution Centre, so that they could put to the applicant the allegations of his “apparent misconduct”. 19

[40] The applicant was accompanied by the site delegate for the SDA, Mr Roger Nicholls.

[41] The allegations that were being made against the applicant related to the amended PMC for 20 March 2010, but it is clear from the respondent’s notes of that meeting 20 that it was also assessing the applicant’s answers against the surveillance footage that it had of the applicant instructing karate classes.21 The surveillance footage was not disclosed to the applicant at this stage.

[42] Contrary to the evidence given before me, the applicant stated in this meeting that he was not fit to work on Saturday 20 March. The applicant stated at that meeting that he had been in a lot of pain in the week of 17 March and needed his wife to assist him getting out of bed in the morning. 22

[43] At the conclusion of that meeting the applicant was suspended.

30 March 2010

[44] On this day the respondent received further surveillance footage of the applicant. It showed the applicant:

• Driving his car through Hungry Jacks, with his children as passengers, and getting a meal from the window (18 March);



• Retrieving items from the boot of his car at a location where the applicant confirmed in evidence that he took two karate classes (19 March); and



• Carrying a punching bag on arrival at the karate club and taking a karate class. The applicant estimated the weight of the bag to be 1kg. At the class the applicant did a range of exercises as per the earlier footage and also demonstrated a one-arm punch at 45 degrees from his shoulder (26 March).

[45] The respondent sent the applicant a letter dated 30 March 2010, which read:

“Allegations of Serious and Wilful Misconduct

The purpose of this letter is to formally put allegations to you which led to your suspension from the workplace, and to allow for your considered response to these allegations.

The allegations are as follows:

During the period of 27 May 2009 to present, you have been on suitable duties at work. The Company has provided these suitable duties as part of an appropriate return to work plan in line with your workers compensation claim. We have information that shows during this period of time you have undertaken activities outside of work that appear to conflict with the restrictions detailed by your nominated treating doctor.

1. On the 17th March you have advised the company that you were totally unfit to attend the workplace and perform any of your duties for the dates of 17th March 2010 up to and including 19th March 2010, this was supported by a prescribed medical certificate from your treating doctor.

2. On Saturday the 20th March 2010 you did not attend to your shift and you have recently supplied the company with a prescribed medical certificate stating you were also totally unfit to attend the workplace and perform any of your duties for that day.

3. It is alleged that on Friday the 19th March 2010 that at approximately 6pm, you participated in activities that were inconsistent with your back injury. These activities included instructing martial arts classes and during this you demonstrated exercises that required you to repetitively twist, turn, bend and stretch, conduct repetitive star jumps, punching, kicking and prolonged standing and balancing on one leg.

These allegations, if substantiated, would be considered serious and wilful misconduct, which may, subject to your responses, lead to disciplinary action up to and including termination. ...” 23

1 April 2010

[46] At the meeting on 1 April, the applicant was accompanied by Mr Dineen. The employer was represented by Mr Battye, Mr Quiney and Ms De-arne Aslander, Human Resources Specialist. The applicant presented a letter from Richard Barker dated 31 March 2010 which stated:

“When I started treating Clive, I asked him to cease training for karate. He assured me that he had.

I did feel it would be safe to allow him to teach his class. This does not involve any physical demands as he can simply stand in front of the students and tell them what to do. If he needs to demonstrate something, he could use a high grade student to perform this task.

In other words, he has been teaching his class with my knowledge and permission.” 24

[47] When questioned about Mr Barker’s reference to standing in front of the class and telling them what to do, the applicant stated that he shows the moves once or twice and only slowly. He went on to state that his treating doctor, Dr Mills was aware that he was involved with karate and that his previous doctor, Dr Salvadurai, and previous physiotherapist were adamant that he continue teaching karate. He stated that teaching karate does not put demands on his body. He denied practising holds or kicks. 25

12 April

[48] A further meeting was held on 12 April 2010, with the same persons in attendance. Mr Battye advised that they had obtained a copy of Dr Soo’s notes and these were given to the applicant. 26 He then advised that they wanted to show the applicant an excerpt of the evidence in the employer’s possession and the notes record that approximately 40 seconds of footage was shown in which the applicant was doing warm-up exercises in front of the karate class on 19 February.

[49] When asked to comment, the applicant stated that the issue was what he had been doing on the 19th March, not the 19th February. 27 The applicant stated that he was “pretty sure” he wasn’t doing that type of exercise on 19 March.

[50] The notes of the meeting indicate that the applicant was asked if his back pain in the week of 17 March was caused by the reach truck and he replied that the soreness was from the weights program instigated by Mr Barker. 28

[51] The meeting was then adjourned, and when it reconvened 35 minutes later the applicant was read his termination letter. The applicant was escorted to his locker and then escorted from the premises.

[52] It is agreed that the applicant received 4 weeks pay in lieu of notice that his weekly payments of income maintenance would cease, in accordance with s.36 of the Workers Rehabilitation and Compensation Act 1986. 29

The nature of the restricted duties undertaken by the applicant at work

[53] The employer provided a DVD showing the restricted duties that the applicant was required to perform,   as well as the Woolworths Job Analysis, Grocery Distribution Centre, July 2008, (“the Job Analysis”) prepared by a firm of Occupational Therapists, MPOT. 30 The Job Analysis is reviewed every two years and was currently under review at the time of the hearing.

[54] The Job Analysis is a comprehensive analysis of all activities undertaken within the Distribution Centre by reference to the frequency of repetitions and level of activity required. For the purposes of the description below, the Job Analysis contains the following key: 31

Descriptor	Percentage of day	Repetitions per day
Never	0%	0
Rarely	0-0.8%	0-8 repetitions
Occasionally	1-33%	9-32 repetitions
Frequently	34-66%	33-200 repetitions
Constantly	67-100%	200+repetitions

[55] The applicant performed a number of light duties on a two-hourly rotation. An example of the duties performed and the physical requirements of those duties are as follows:

• Split case liquor: This involves taking one or more bottles of alcohol from cartons which are located on shelves of varying heights and placing them in crates on the back of a pallet runner. The Job Analysis classifies this as light work, with occasional twisting, neck extension, stooping and walking; frequent working through a full body range of movement, lifting and carrying up to 3kg for 2 metres, semi-squat with forward reach; constant standing, walking, repetitive gripping, manual dexterity, and operating a powered vehicle (pallet runner).



• The operation of the pallet runner involves frequent twisting, pushing, pulling, neck rotation and full body vibration, although the operation of the pallet runner is not constant throughout the two-hourly rotation on this activity.



• Operation of the reach truck (forklift): This involves moving pallets to, from and between industrial shelving. The movements involved include frequent neck extension and lateral rotation, back extension and lateral rotation and constant repetitive shoulder rotation and abduction/adduction.



• Security (small) orders: This involves picking various items regarded as requiring additional security (such as cigarettes and razor blades), as directed. The work involves frequent semi-squat with forward reach to collect items, pushing and pulling the trolley into which items are placed, repetitive reaching above shoulder height, frequent neck flexion and extension with constant standing, walking, and repetitive gripping.

[56] Mr Wrangles gave evidence, which I accept, that the employer encourages injured workers to leave any duties that cause pain or discomfort and that systems are in place for such work to be covered by other employees.

The medical evidence about the applicant’s participation in karate and its consistency with his modified duties

[57] The matter put in issue in this case is whether the applicant’s ability to perform the activities shown in the surveillance footage is consistent with the presentation of his condition to his doctors and physiotherapist.

[58] I have referred earlier to Dr Salvadurai’s report in relation to the applicant’s initial injury in May 2009 and the fact that he was aware of and approved the applicant’s involvement in karate, within certain limits. Dr Salvadurai indicated, in the various PMC’s issued for the applicant, that he had personal knowledge of the workplace. The initial restrictions he determined were in relation to lifting greater than 5kg, no overhead work, no forklift or reach truck. The restrictions decreased over time until he was fit for pre-injury duties on 5 August 2009. 32

[59] A report completed by Dr Soo was admitted. He saw the applicant on four occasions during March and April 2010 in relation to the aggravation of the 2009 injury that he suffered on 30 January 2010. He was aware that the applicant was seeing a physiotherapist. The report stated that there was no mention of karate in the consultations and the doctor did not discuss restrictions. 33 The applicant stated that Dr Soo was not his treating doctor, Dr Mills was, but that he saw Dr Soo to obtain PMC’s because Dr Mills was very busy and it was difficult to see him. It was the applicant’s view that Dr Mills was overseeing his treatment34 and this is supported by Dr Mills’ evidence. For example, only Dr Mills examined the applicant.

[60] It is convenient at this point to deal with the respondent’s submission that I should draw a negative inference on the applicant’s failure to call Dr Soo. In other circumstances I might be inclined to do so. However the respondent was advised that the doctor would be made available for cross-examination if requested, but no such request was made.

[61] It may have assisted to have evidence from Dr Soo given his involvement in the applicant’s absence from work on 20 March 2010. In circumstances where both parties have declined to call Dr Soo, I have decided that no adverse inference should be drawn against either party. I note that a report from Dr Soo was admitted by consent.

[62] I regard the applicant’s failure to mention his karate activities to Dr Soo as carrying less weight than the evidence of Dr Mills and Mr Barker in relation to the applicant’s discussion of his involvement with karate with them.   Nonetheless it was poor judgement on the part of the applicant not to disclose these activities to Dr Soo.

[63] Mr Barker provided a report dated 30 June 2010 35 which included the following paragraph:

“6. Did you discuss with Clive his involvement in karate classes either as a teacher or as a student? If so, what restrictions, if any, were placed on Clive’s involvement in these classes?

Yes, I did discuss with Clive that he should not train in any classes but I felt that he could teach his class. We discussed the various techniques that he should avoid demonstrating such as hard and fast punching and striking or doing push ups and sit ups. I also advised him that if he felt pain he should discontinue immediately.”

[64] On reviewing the surveillance footage in his evidence before FWA, Mr Barker indicated that he didn’t have an issue with the warm-up activities as demonstrated in the footage, given the level of intensity and duration. 36 Mr Barker stated that he been involved as a karate instructor himself and knew what was involved.37

[65] When asked what he meant by the second paragraph of his letter of 31 March (see [46]), Mr Barker stated that he intended to convey that it was okay for the applicant to continue to instruct as long as there were no vigorous or violent activities and he did not intend the letter to be an exhaustive list of activities the applicant could and could not do. Mr Barker conceded however that the applicant’s activities as shown in the footage were not consistent with the letter of 31 March. 38 This is not surprising, since any activity other than standing and talking is inconsistent with his letter.

[66] I am left to resolve the apparent inconsistency between the letter of 31 March and the subsequent report of 30 June. This has been a difficult matter to resolve.

[67] My impression of Mr Barker was positive and I found him to be a credible witness. I accept his evidence that he discussed the warm-up activities with the applicant and did not have an issue with them, providing they were limited as to duration and intensity. 39 His evidence about the applicant’s warm-up activities was given prior to being shown the surveillance footage.

[68] On balance I consider that Mr Barker was aware of and had sanctioned the warm-up activities but was not aware that the applicant demonstrated karate moves. This finding is reinforced by the applicant’s evasiveness under cross-examination on what he told Mr Barker about the demonstration of karate moves to the class. In view of Mr Barker’s report, I consider that the limited extent and low intensity of the demonstration of karate moves is less of an issue than the applicant’s failure to strictly adhere to his physiotherapist’s advice. This is especially so when the physiotherapy program was known to Dr Mills and had formed part of the applicant’s overall treatment for both his initial injury and the aggravation.

[69] The evidence indicates that the applicant considered that he was a better judge on such matters. He advised the employer at the interview on 1 April that he did get a more senior student to demonstrate and, “When I can’t I do it myself.” 40

[70] Dr Mills saw the applicant on two occasions prior to his dismissal, on 24 February and 3 March 2010.   A report he prepared for the purposes of the proceedings included the following:

“6. Did you discuss with Clive his involvement in karate classes either as a teacher or a student? If so, what restrictions, if any, were placed on Clive’s involvement in these classes?

Yes. Karate teaching and exercise can strengthen the spine and provided no combat - would be helpful.” 41

[71] The report also included the following text dealing with his attendance on the applicant on 21 April:

“Comment: It seems premeditated action by employer; a video taken by an employee. It seemed somewhat underhand and premeditated.”

[72] When it was put to Dr Mills that this indicated that he was not “particularly favourable of the employer”, he said that this was the view he formed on the basis of the information provided by the applicant and has no bearing on his medical opinion of the applicant’s condition. 42

[73] Dr Mills indicated that he was familiar with the applicant’s workplace and duties as a storeman, having reviewed the Distribution Centre over a couple of weeks on behalf of the SDA and Woolworths. 43 Under cross-examination he was unsure as to whether it was the Gepps Cross Distribution Centre he had visited.44 A certificate completed for the applicant on 29 June 2009 indicated that he was not familiar with the workplace.45

[74] Dr Mills was shown the surveillance footage of the applicant. He did not generally regard the activities as excessive and/or stressful for the thoracic spine, although he indicated that the arm rotations through 360 degrees may place “a little stress” on the shoulder girdle and that star jumps and rotation of the arms would aggravate shoulder pain. 46 I find Dr Mill’s evidence on the applicant’s activities in the surveillance footage to be both considered and balanced and it is accepted.

The Submissions

[75] Ms Walker, of counsel for the applicant, contended that the respondent did not have a valid reason for dismissal and that the applicant had been denied procedural fairness.

[76] She submitted that the applicant was a credible witness and his evidence should be accepted. In this regard, Ms Walker stated that the applicant’s oral evidence was consistent with:

• The records of the meetings leading to his termination;



• The contemporaneous documents of the respondent;



• The documentary evidence of Dr Soo concerning his absence on 20 March 2010;



• The evidence of Mr Wrangles as to the advice provided by the applicant on 15 March 2010 concerning the period of absence;



• Mr Barker’s evidence concerning the weights program undertaken on 15 March.

[77] Ms Walker contended that the applicant had been open about his involvement with karate with his doctors, his co-workers, Mr Wrangles and Mr Johnstone. She noted that at the time he spoke to Mr Johnstone of his involvement in instructing karate he was unaware that the respondent had surveillance footage of this activity.

[78] It was submitted that the applicant’s evidence about undertaking the warm-up exercises as shown in the video footage compared to the strains involved in performing the restricted duties at work was consistent with the evidence of Dr Mills and Mr Barker. Ms Walker noted that the applicant became a bit confused and frustrated under cross-examination but suggested that this was to be expected.

[79] Ms Walker highlighted that Dr Mills and Mr Barker saw the surveillance footage for the first time when they were in the witness box and both indicated that the nature and extent of the activities shown in the footage was not inconsistent with the applicant’s stated injury or his work restrictions.

[80] In relation to the employer’s witnesses, Ms Walker submitted that Mr Battye was a credible witness and his evidence should be preferred over that of Mr Wrangles in relation to the level of contact and discussion between them in the events leading to the applicant’s dismissal.

[81] Ms Walker contended that the applicant was denied procedural fairness in the following areas:

• The allegation that he lied to his doctors and misrepresented his capacity to Woolworths was not put to the applicant.



• The applicant’s involvement in karate on 19 February was put to him for the first time at the meeting where he was dismissed. This was a period of some seven weeks after this date, and the respondent had been in possession of the footage since mid-March.



• Dr Soo’s notes, which stated that he was not aware that the applicant was involved in karate, were given to the applicant at the commencement of the meeting on 12 April and he was given no opportunity to respond to them.



• The applicant was denied the opportunity to put the surveillance footage to his treating doctor and physiotherapist before he was dismissed.

[82] Mr Richter, also placed substantial weight on the issue of the applicant’s credibility. He described the applicant as evasive, dissembling and that he gave the appearance of being dishonest. He cited as an example of this, the applicant’s evidence, where he described that managers “... storm into the office and have a go at me ...” when he attempted to speak to Mr Wrangles about the discomfort he was experiencing. 47

[83] Mr Richter also cited the applicant’s refusal to answer questions about the discussions he had with Dr Soo concerning the amended PMC 48 and with Mr Barker concerning his letter dated 31 March 2010.49

[84] Mr Richter noted that the applicant’s activities were not consistent with the letter from Mr Barker dated 31 March and it was clear that he had not disclosed his karate activities to Dr Soo. The applicant had changed his story on 16 February when he advised that he was absent as a result of his work-related injury after earlier advising he would be away sick.

[85] It was submitted that the circumstances surrounding the amended PMC for 20 March 2010 were highly suspect, and the Tribunal should conclude that the applicant was fit to work and that he deliberately defrauded the company by claiming workers compensation to which he had no entitlement. Mr Richter referred to the inconsistent answers provided by the applicant at the interviews on 29 March and 1 April as to whether he was fit to work on this day.

[86] Both parties referred to various decisions to support their submissions and these will be canvassed as appropriate in my consideration.

Consideration

[87] There is no dispute that the applicant is protected from unfair dismissal pursuant to s.382 of the Act; that his application was filed within the time period prescribed in s.394(2) of the Act, that he had completed the minimum employment period required by s.383 of the Act and that he has been dismissed within the meaning of s.386 of the Act. It is also agreed that the dismissal was not a case of genuine redundancy and the Small Business Fair Dismissal Code does not apply.

[88] The section of the Act relevant to the determination of the merits of the application is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

Was there a valid reason for the dismissal?

[89] Decisions in relation to whether a valid reason for dismissal exists have held that:

• To be a valid reason, the reason must be sound, defensible or well founded; 50



• It is not sufficient that the employer acted in the belief that the termination was for a valid reason; the reason must be objectively valid on an analysis of the relevant facts; 51

• A determination as to whether a valid reason for termination exists is not limited to the reasons given by the employer and must be based on the evidence before the Tribunal; 52



• The employer bears the evidentiary onus of establishing that that there was a valid reason for the termination. 53

[90] The key allegation against the applicant is that he deliberately misrepresented his capacity to his treating doctors and that he had a greater capacity than he portrayed. The grounds for the employer’s belief were statements made by the applicant, medical data obtained under authority and the contents of the surveillance footage.

[91] The particular statements made by the applicant that were relied upon by the employer, are not particularised. I take it to include the applicant’s statement that he was able to work on Saturday 20 March 2010, notwithstanding that he had obtained an amended PMC indicating he was unfit to perform duties on that day and that he instructed two karate classes on the preceding day.

[92] I do not consider that the instruction of two karate classes after three days off work is of any particular significance. The evidence is that the warm-up activities are of a different nature than the applicant’s work duties in relation to the duration (two 15 minute warm-up sessions over the course of a couple of hours as opposed to eight hours of work), the lack of any resistance, the amount of repetitions and importantly the lack of strain on the thoracic spine.

[93] The statements relied upon by the employer also included the inconsistent answers given by the applicant as to his fitness to perform light duties on Saturday 20 March. I consider it likely that the applicant changed his position when he realised that the respondent was aware that he attended the karate club on 19 March. 54 In any event, I find that the applicant’s response at the meeting on 29 March was less than honest.

[94] The need for an employee to be honest in their dealings with the employer is well settled at common law. However, all relevant circumstances need to be taken into account, including the extent to which the employee was not honest, the nature of the matter about which the employee was not honest and the circumstances surrounding any dishonesty on the part of the employee. For example, I do not regard the applicant’s dishonesty to be at same level as held in the case of Hirst v Stable Investment Management Services Pty Limited, 55 as relied on by Mr Richter.

[95] Relevant to the consideration of this lack of honesty on 29 March, is my finding that the applicant genuinely believed that he had been given the week off by Dr Soo. There is no evidence that indicates otherwise. The respondent submitted that an entry in the Pyramid system showed that the applicant had advised that he would be absent only from 17 to 19 March. 56 I do not accept this submission. The relevant entry in Pyramid indicates that it was modified on 22 March and as such could reflect the information in the original PMC from Dr Soo after it was provided to the employer on 22 March. This is consistent with Mr Wrangles’ evidence that Pyramid entries are sometimes changed after a PMC is received57 and is consistent with his notes of a conversation with the applicant on 17 March, which relevantly record:

“Clive called me and advised that he would not be at work for the rest of the week as Dr Soo said he needs to rest and had given him a PMC stating unfit for the rest of the week”. 58

[96] There is clearly a contradiction between the two PMCs issued by Dr Soo concerning the applicant’s fitness to work on 20 March 2010, however, Dr Soo’s letter supports the applicant’s understanding. I conclude on balance that the amended PMC issued by the doctor reflected his original view on 17 March that the applicant should have the week off.

[97] I do not consider there was anything sinister in the applicant seeking and subsequently obtaining the amended PMC certifying him unfit for work on 20th March. Whether the applicant was capable of performing light duties on that day is not to the point in my view. A PMC may be issued for a period of time based on the longer term interests of making a full recovery even though the physical capacity to perform modified work in that period may exist. If the intention of Dr Soo, at the time he saw the applicant on 17 March, was that the applicant should not work on the Saturday, and I have so found, then obtaining an amended PMC reflecting this intention is neither fraudulent nor improper.

[98] I also consider that the employer’s statements to the applicant on 22 March would have led the Applicant to believe that obtaining the letter and the amended PMC from Dr Soo was acceptable.

[99] The medical data obtained under authority that was in the possession of the employer at the date of the applicant’s dismissal, consisted of Dr Soo’s notes. 59 I am unable to decipher much of the detail of the doctor’s handwritten notes. The respondent made no submission about the content of the notes and, other than appearing to support Dr Soo’s later report, in which he stated that he was unaware of the applicant’s involvement with karate, are of no probative value.

[100] The video surveillance is the significant evidence relied upon by the respondent. It is understandable that the respondent would become suspicious when it viewed the footage of the applicant undertaking warm-up exercises. It shows a fit young man undertaking a wide range of movements without any apparent restriction or discomfort.

[101] Before turning to these activities, it is appropriate to address the surveillance footage showing the applicant driving over speed humps at Hungry Jack’s, twisting to get food from the takeaway window and reversing his car down his driveway. To the extent that the respondent relied upon these activities in support of its case that the applicant misrepresented his capacity to his doctors, I am of the view that the employer was in error. I consider that such activities, and certainly for the limited extent and duration as shown in the footage, are activities reasonably required as part of the applicant’s established lifestyle and of a different character to the karate activities undertaken. 60

[102] I am required to determine whether the physical capacity demonstrated by the applicant in the warm-up activities and in the demonstration of karate moves, can be reconciled with the restrictions determined by his doctors. If not, I am required to determine whether the applicant deliberately misrepresented his capacity to his doctors.

[103] On the basis of the medical evidence before FWA, there is no inconsistency in respect to the warm-up activities and the restricted duties at work and in this regard I note that the respondent produced no medical evidence to the contrary. To the extent that the restricted duties were based on the applicant’s presentation to his doctors, I have earlier referred to Dr Mills’ evidence that the star jumps and rotation of the arms would aggravate shoulder pain. This was one of the symptoms that the applicant presented with in February and again in March when he saw Dr Mills. 61

[104] The applicant stated that the rotation of the arms was helpful in loosening up his shoulders and relieving the pain, and that the rotation of his arms as shown in the surveillance footage was restricted compared to when he is fully fit. He also stated that the lifting and rotation of his arms at karate was without any resistance as opposed to his duties at work. 62

[105] On the balance of probabilities, and consistent with my findings that he tended to exaggerate his medical condition in his evidence before FWA, I consider that the applicant may well have exaggerated the extent of his shoulder pain to his treating doctors.

[106] Such a conclusion does not mean that the applicant deliberately misrepresented his capacity for the purposes of obtaining benefits to which he would otherwise not be entitled.

[107] I also consider the following matters are relevant in considering the applicant’s karate activities:

• The applicant’s openness about participating in karate and karate instruction;

This is a matter of considerable significance. He advised his treating doctors and physiotherapist about his participation in karate, discussed his involvement with co-workers, had regular discussions about karate with Mr Wrangles 63 and also advised Mr Johnstone.

• The medical evidence that the warm-up exercises and strengthening and mobility exercises generally can assist recovery and the distinction between the exercises at karate and the repetitive nature and duration of his modified duties at work;

The applicant, Dr Mills and Mr Barker all drew a distinction between the duration of the warm-up exercises compared to eight hours at work, the benefit of strengthening and mobility training, the difference between twisting and rotating through the hips in the warm-up exercises and twisting the thoracic spine in the work duties and the lack of any resistance in the movements undertaken in karate compared to the reaching and lifting at work. This evidence is supported by the Job Analysis, which identifies the repetitive nature of the duties undertaken by the applicant. Notwithstanding certain unsatisfactory aspects of the medical evidence I have found that it was reliable as to the applicant’s participation in karate activities.

• I find it persuasive that the surveillance footage shows the applicant’s family carrying his karate bags from the car park of the location where he taught karate, at a time before he was aware that he was the subject of surveillance.



• The absence of medical evidence supporting the respondent’s view of the applicant’s capacity.



• My finding that the applicant was legitimately absent from work on 20 March 2010.

[108] To the extent that the applicant may have exaggerated the level of his shoulder pain to Dr Mills, and demonstrated some karate moves which were not sanctioned by his physiotherapist, such matters must be viewed practically. The karate moves were limited and were not vigorous or jarring actions inconsistent with his medical restrictions. There is no evidence that any of the warm-up activities were contraindicated or that the star jumps and arm rotations were inconsistent with the work restriction on overhead lifting or above shoulder work. As noted in the evidence, the restrictions are determined on the basis that they are performed repetitively and with resistance.

[109] The allegation made against the applicant is a serious one: that he defrauded the employer by obtaining benefits through misrepresenting his capacity. Mr Richter characterised the applicant’s actions as akin to theft. The evidentiary onus on the employer is a high one in these circumstances, and I consider that this onus has not been met. 64

[110] Looked at objectively the evidence does not support a conclusion that there was a valid reason for the termination. This was the risk run by the respondent when it chose to dismiss the applicant without any supporting medical evidence.

Was the applicant notified of the reason for dismissal?

[111] There is no dispute that the applicant was read the letter of termination in the interview on 12 April and provided with the letter at the conclusion of the interview. However an employer is required to provide the reasons for termination prior to taking the decision to dismiss, otherwise there would be little purpose in the statutory requirement to do so. 65 Sections 187(b) and (c) are therefore linked in this regard.

Was the applicant given the opportunity to respond to the reasons for dismissal?

[112] The allegations against the applicant were outlined in the letter of 30 March 2010. The specific allegations related to the period between 17 March and 20 March 2010, including the applicant’s karate activities on 19 March 2010. The implication of the allegations in the letter is that applicant lied about his capacity to attend work over this period and misrepresented his capacity to his doctors.

[113] An opportunity to respond to the allegations requires that not only are the allegations made known, but “... that time be given to understand and consider those allegations, and, where appropriate, to get advice and to gather evidence”. 66

[114] The applicant was denied the opportunity to mount a defence to the allegations that he misrepresented his capacity to his doctors, since the evidence upon which the respondent based its allegations was withheld from him. As such he had no opportunity to put the footage to his doctors for their opinion and this significantly prejudiced his ability to put forward a case in response to the employer’s allegations. There was no reason advanced as to why the respondent could not allow an opportunity for this to occur.

[115] I conclude that on 15 March when the respondent viewed the surveillance footage it was already suspicious of the applicant’s honesty and the activities shown in the footage convinced the respondent that the applicant had misrepresented his capacity to his treating doctors. Having formed this view, the respondent then appeared to approach the interviews with the objective of obtaining admissions from the applicant or catching him out, rather than seeking to test the evidence in its possession.

Sections 187(d) and (e) of the Act

[116] These matters are not relevant to the present matter and are not in issue. The applicant had a support person present in all interviews and the dismissal did not relate to his performance at work.

[117] The respondent is a major employer in the State and it does not seek to rely on its size or the availability of relevant human resource expertise as a defence to the unfair dismissal application.

Are there any other relevant matters?

[118] Neither party made any submissions on this particular section of the Act. The consequence of dismissing the applicant for serious and wilful misconduct was not only the loss of employment but also the loss of workers compensation entitlements. The fact of the injury is a matter that may present additional difficulties for the applicant in obtaining employment.

Conclusion

[119] The matters referred to in s.387 of the Act, as relevant to the circumstances of the particular case, inform the decision as to whether the dismissal was harsh, unjust or unreasonable.

[120] I have determined that the employer has not satisfied the evidentiary onus upon it that the dismissal was for a valid reason. I conclude on the balance of probabilities that the applicant is not guilty of the misconduct alleged by the employer and his dismissal is unjust on this basis.

[121] I have also concluded that the applicant was denied the opportunity to provide a defence to the allegations of deliberate misrepresentation as a result of the employer’s failure to enable him to obtain evidence from his doctors in relation to the surveillance footage or to respond to the totality of the footage in the respondent’s possession. A procedural failure is only one matter to be taken into account, but in this case it was a significant failure and one that led the respondent into error, with serious consequences for the applicant.

Remedy

[122] The respondent did not address the remedy of reinstatement sought by the applicant. The respondent was on notice in this regard, and in some circumstances I would not be inclined to provide a further opportunity to address the issue. However, I consider that it is appropriate to provide an opportunity for remedy to be addressed in light of my findings.

[123] In addition, I have insufficient information in relation to making an order to restore lost pay should I determine that reinstatement is appropriate, 67 or to determine an amount by way of compensation should I determine that reinstatement is not the appropriate remedy.68 For example, I wish to hear from the parties on the potential impact of any workers compensation payments to which the worker becomes entitled in light of my decision that he was not guilty of serious and wilful misconduct.

[124] The parties will be advised of a date for further submissions on the issue of remedy.

DEPUTY PRESIDENT

Appearances:

Ms Walker, counsel for the applicant

Mr Richter, counsel for the respondent

Hearing details:

2010

Adelaide

August 2, 3 and 13

 1   Respondent’s Book of Documents (“B Docs”), Ex R1, at p 76

 2   These matters are canvassed in the narrative that follows.

 3   For example, see Battye at PN 2239 and 2242 compared with Wrangles at PN 3150, 3176 and Ex A1, Attachment C.

 4   Ex A9

 5   Ex A2

 6   B Docs at pp 3-4, 24 and 26.

 7   PN 2915

 8   Ex A1, Attachment C

 9   B Docs at p 25-26

 10   Ex A5 at para 21

 11   B Docs at p 27

 12   Ibid at p 29

 13   Ex R2

 14   PN 532

 15   B Docs at p 39

 16   B Docs at p 58

 17   Ex R7

 18   Ex R5 at paras 31.2 and 31.3

 19   Ibid at para 32

 20   B Docs at p 60-61 The applicant accepts these notes and the notes of subsequent meetings on 1 and 12 April as “reasonably accurate” (PN 679). He did not challenge any aspects of the notes.

 21   Ex R5 at para 34

 22   B Docs at p 60

 23   B Docs at p 75. The letter went on to advise the applicant of the details of the meeting and that he could have a representative present.

 24   B Docs at p 40

 25   Ibid at pp 65-66.

 26   B Docs at pp 31-38

 27   I understand this as a reference to the allegations in the letter of 30 March 2010.

 28   Ibid at pp 67-68

 29   Ex A10

 30   Ex R4 and R9, respectively.

 31   Ex R9 at p 5

 32   B Docs at p 12 and pp 16-21

 33   Ex A8

 34   Ex A1 at para 51

 35   Ex A5

 36   PN 999-1028

 37   PN 964

 38   PN 996, PN 1050-1052

 39   PN 986-987

 40   B Docs at p 65

 41   Ex A11

 42   PN 1839-1843

 43   PN 1588-1591

 44   PN 1734

 45   Ex R3

 46   PN 1791-1792; PN 1632-1659.

 47   PN 87

 48   PN 526-533

 49   PN 309-315

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

 51   Rode v Burwood Mitsubishi, Print R4471 at pn 19

 52   MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106 at pn 42

 53   Paech v Big W Monarto Warehouse/590 Regional Distribution Centre, [2007] AIRC 422

 54   As outlined by the employer in the letter to the applicant dated 30 March 2010, B Docs at p 75.

 55   [2010] FWA 451 at pn 38

 56   B Docs at p 72

 57   PN 2904, 3118

 58   B Docs at p 56

 59   B Docs at pp 31 -38

 60   Sutcliffe v General Motors-Holden’s Automotive Limited (1988) 80 IR 142 at 155, 156

 61   Ex A11

 62   PN 298, 366, 385 and 411

 63   Wrangles, PN 3066; PN 2949; PN 3204-3206

 64   Briginshaw v Briginshaw, (1938) 60 CLR 336 at 362

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

 66   Sutcliffe v GMH, supra, at p 160

 67 Section 391(3) and (4) of the Act

 68 Section 392(2) of the Act

Printed by authority of the Commonwealth Government Printer

<Price code C, PR502204>