Deepak Biradar v Laurent Bakery Pty Ltd T/A Laurent Patisserie

[2013] FWC 8981

[2013] FWC 8981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Deepak Biradar
v
Laurent Bakery Pty Ltd T/A Laurent Patisserie
(U2013/10055)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] Mr Deepak Biradar was employed by Laurent Bakery Pty Ltd (Laurent) until his employment was terminated on 16 May 2013.

[2] Laurent terminated Mr Biradar’s employment because it decided that he was not able to perform his pre-injury duties and that it could not hold his position open for him until he recovered. Mr Biradar said he was capable of doing his job and that Laurent had no evidence to the contrary.

[3] The main issues to be determined are:

3.1 Was Mr Biradar able to perform his pre-injury duties?

3.2 If he could not, was that a valid reason to terminate his employment?

3.3 Was he told of the reason prior to the decision being made?

3.4 Was he given an opportunity to respond?

Was Mr Biradar able to perform his pre-injury duties?

[4] Mr Biradar had a non work related injury which necessitated surgery. That surgery took place whilst he was on annual leave in India. He was not immediately able to return to work or Australia as he required 2 months to recover. 1

[5] Upon his return to Australia Mr Biradar met with Ms Renae Borger, the Retail Operations Manager and Ms Rose Rawani, the HR Manager to discuss his return to work. He told them that he was not able to stand or kneel for prolonged periods of time. He told Ms Borger that his surgeon had said it would take four to six months for him to completely recover. 2 Ms Renae gave evidence that she did not think Mr Biradar was fit to return to work as he was walking very slowly, walked with a limp, and was reliant on his knee brace.3 Ms Borger and Ms Rawani asked him to provide them with medical advice about his restrictions.4 He was asked to provide information about an expected recovery date, his limitations and restrictions and to advise what duties he could perform and suitable hours of work.5

[6] Mr Biradar then supplied a medical certificate which advised that he was able to perform his duties with certain restrictions namely, he must “avoid any heavy objects lifting, prolonged standing and walking, kneeling etc.” 6 At the same time he sent an email saying he could handle the store with some restrictions.7 Ms Borger told Mr Biradar that the certificate did not include the information she needed and told him that it appeared to her that store duties would not be suitable. She asked him for more information about what he could do. Mr Biradar responded by telling her that his doctor required a “return to work form from the company” and then the doctor could advise what things he could do. He also advised that his doctor would be in touch to advise on his progress.

[7] Another meeting was called on 17 April 2013 and Ms Borger observed Mr Biradar was still struggling to walk and sit comfortably. She suggested to him that he apply for internal positions at head office as he was not able to do the store manager’s job for at least two to four months. She gave evidence that Mr Biradar agreed that he was not physically capable of returning to the store manager’s job. Ms Borger was not cross examined on this evidence and neither did Mr Biradar deny that he had made this statement.

[8] On 7 May 2013 Ms Borger decided to fill the store manager position and she emailed Mr Biradar to try and organise a meeting to discuss this and to get him to resign from the retail area of the business. In cross examination, Ms Borger said she was not forcing him to resign but in the circumstances this was one option.

[9] On 9 May 2013 Mr Biradar advised that he had been unsuccessful in obtaining alternative work within the non retail part of the company and asked to return to his position as store manager. He said that he was “doing good and getting better with all [his] physiotherapy exercises. Complete recovery may take some time but [I] am working on it.” 8 He asked that he not be required to open or close the store.

[10] Ms Borger’s evidence established that opening the store involved putting heavy furniture and barriers outside of the shop and for health and safety reasons this job required two people. Consequently, at the opening and closing of the store, two people were rostered to work, one of whom was the store manager. It was also her evidence and Ms Megan Batrouney’s evidence that the work of a store manager was a hands on role and it involved lifting and bending and employees, including the manager, were required to be on their feet most of the day. This evidence was not challenged.

[11] I find on the evidence that it was reasonable to conclude that Mr Biradar was not able to do his pre-injury duties. There was nothing in the medical reports provided that suggested that Mr Biradar could lift heavy furniture or stand for prolonged periods of time. While Mr Biradar may have considered he could do this work he produced no medical evidence to Ms Borger or the Fair Work Commission (the Commission) to contradict the medical certificate he provided in April 2013.

[12] While Ms Borger could have taken a more active role in making inquires of Mr Biradar’s treaters, Ms Borger had made it clear to Mr Biradar what information she needed and he did not provide the information. Ms Borger was entitled to rely upon the information Mr Biradar supplied. Ms Borger and Ms Batrouney’s evidence about the duties of the store manager was not challenged and I accept their assessment that, based on the restrictions placed on Mr Biradar by his own treaters, that Mr Biradar could not have performed the role of store manager without restricted hours and duties. While it was submitted that Mr Biradar could delegate some of his work, it was clear that on his own evidence, he could not do the opening and closing and no submissions were made that it was not necessary for the store manger to do this work.

Was there a valid reason for the termination of Mr Biradar’s employment?

[13] It is clear that when an employee is absent from work for a non work related injury because he or she is unable to perform his or her duties a question of timing arises. 9

[14] Section 352 of the Fair Work Act 2009 (the Act) provides that an employer must not terminate an employee’s employment because he or she is temporarily absent from work. An employee is temporarily absent, relevantly in this case, if the absence extends for more than three months unless the employee is on paid personal/carer’s leave for the duration of the absence. In this case there was no submission that the termination was in breach of the general protections provisions of the Act.

[15] Mr Biradar had been off work from 16 February 2013. He had four weeks paid sick leave. By the time his employment was terminated he had been absent from work for three months and had not provided his employer with any medical advice about when he could return to work. On the evidence before Ms Borger, provided by Mr Biradar, he would not return for at least one to three months. She gave evidence that she formed the view that it was necessary to fill Mr Biradar’s position on an ongoing basis and while she gave no reasons for this view, she was not cross examined on that evidence.

[16] It was submitted that Laurent had not properly determined the capacity of Mr Biradar to undertake his duties. This is not a case where the employer had ignored the medical advice provided. The only medical advice it had was that Mr Biradar was able to perform his duties with certain restrictions, such as to avoid any heavy objects lifting, prolonged standing and walking, kneeling etc. That advice stated “we will keep you updated regarding his progress in terms of his return to work in full capacity.” 10

[17] While this advice was given in early April 2013, Mr Biradar did not provide any up to date advice that modified this information. Ms Borger was entitled to rely upon this medical advice. She had asked Mr Biradar for more information and it was not provided. Mr Biradar was aware that Ms Borger was of the view that he could not perform the work of a store manager, yet he did not provide contrary medical advice to Ms Borger. There was no evidence before the Commission, other than Mr Biradar’s opinion, that he could return to his work.

[18] I find that given the uncertainty about Mr Biradar’s return to work, Laurent had a valid reason for the termination of Mr Biradar’s employment namely, his incapacity to perform his duties.

Was Mr Biradar told of the reason prior to the decision being made?

[19] On 16 May 2013 Ms Borger sent Mr Biradar an email telling him, that because he could not do his pre-injury job because of his restrictions and because he would not be fit until mid June or August, his employment was terminated.

[20] It is not disputed that Mr Biradar was not told prior to this decision that his employment was at risk and he was not given an opportunity to respond to Ms Borger before the decision was made to terminate his employment. He had been told on 5 May 2013 that he would need to separate from retail but as her oral evidence made it clear, Ms Borger was not telling Mr Biradar that his employment was being terminated.

[21] It is clear that Mr Biradar was not told of the reason for his dismissal prior to the decision being made.  11

Was Mr Biradar given an opportunity to respond to the reason?

[22] Because he was not told of the reason before the dismissal occurred he was not given an opportunity to respond. 12

Other considerations

[23] As there was no discussion about the termination Mr Biradar was not denied the opportunity to have a support person. The dismissal was not related to Mr Biradar’s performance. Mr Biradar made no submissions about the size of business and the absence of dedicated human resource management. Laurent submitted that it did not employ specialist human resources staff and regard should be had to this.

[24] Mr Biradar submitted that, as he took numerous affirmative steps to return to work without reply, I should draw an inference that Laurent was more inclined to terminate his employment than return him to work. The evidence of Mr Biradar is that it was Ms Borger who suggested he apply for other jobs within the company and it was Ms Borger who asked about his treatment and sought information from Mr Biradar about his restrictions to assist her return him to work. Laurent was under no obligation to consider Mr Biradar for other positions. That it did, means that the inference sought to be drawn by Mr Biradar is not supported by the evidence.

[25] Mr Biradar had worked for Laurent since 2007 and been promoted to store manager.

Conclusion

[26] There was a valid reason for the termination of Mr Biradar’s employment however he was denied the opportunity to respond to Ms Borger’s reasons for considering the termination of his employment.

[27] Had Mr Biradar provided to the Commission medical evidence that, at the time of his dismissal, he had been fit to perform his duties or that he would have been fit to return in a short period of time, I would have considered the termination of his employment without him being provided with that opportunity to provide that medical advice, unreasonable.

[28] However, even at the hearing Mr Biradar presented no medical evidence about his fitness to work. In those circumstances, I find that the termination of Mr Biradar’s employment was not harsh, unjust or unreasonable and therefore his application must be dismissed.

DEPUTY PRESIDENT

Appearances:

S. Pajic on behalf of Applicant.

T. Page on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

12 November.

 1   Exhibit A1 at DB1

 2   Exhibit R1 at [20]

 3   Ibid at [19] and oral evidence of the witness

 4   Exhibit A1 at [7]

 5   Exhibit R1 at [22]

 6   Ibid at RB6

 7   Ibid RB5

 8   Exhibit A1 at DB5

 9   Wayne David Shortland v the Smith Snackfood Co [2011] FWAFB 2303

 10   Exhibit A1 at DB2

 11   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport S5897 at pn73

 12   Ibid

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544571>