Graeme Anderson v Essential Energy

[2011] FWA 7423

[2011] FWA 7423

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Anderson
v
Essential Energy
(U2011/9639)

COMMISSIONER DEEGAN CANBERRA, 11 NOVEMBER 2011

Termination of employment - application for unfair dismissal remedy - whether harsh, unjust or unreasonable

Introduction

[1] This decision concerns an application for a remedy for unfair dismissal filed by Mr Graeme Anderson (Applicant) in respect of the termination of his employment by Essential Energy (Employer). The application was lodged on 8 July 2011, and was the subject of an unsuccessful conciliation conference on 24 July 2011. On 3 August 2011 directions were issued for the filing of outlines of submissions and witness statements, and the matter was listed for arbitration.

Background

[2] The Applicant had been employed by Essential Energy since about 24 July 1989. In August 2011 he suffered workplace injuries to his leg and ankle. He returned to work on light duties and from 2006 until about August 2010 he was employed as a team leader. The position of team leader involved duties which were compatible with the Applicant’s ongoing disabilities.

[3] In 2010 the Applicant’s position of team leader was involved in a large restructure across the Employer’s operations. The Applicant’s work area had three team leader positions prior to the restructure and only two such positions after the restructure had been implemented. The Applicant was unsuccessful in his application for one of the two available team leader positions. In accordance with the Restructure Guidelines, 1 on 15 September 2010 the Applicant was offered, and accepted, a position as an Electrical Technician. The Applicant had held an equivalent position prior to being appointed as a team leader in 2006.

[4] In October 2010 the Applicant complained to the Employer that the vehicle he was given to drive in his position as an Electrical Technician was less comfortable for him than the vehicle provided to him in his former team leader position. Following this complaint he was requested by the Employer to undergo a medical assessment by an occupational physician, Dr Burke. On 27 October Dr Burke provided a report. The report noted that the Applicant had “multiple problems” and that the “pivotal injury” was sustained on 8 August 2001 when he had a fall at work. The report further noted that after a return to work program the Applicant resumed full-time duties about a year after the accident but “with ongoing restrictions”. The restrictions related to climbing, walking on uneven ground, excessive driving and resting.

[5] The report written by Dr Burke, referred to further problems suffered by the Applicant which arose from a motorbike accident in 2005. The Applicant completed a graduated return to work after the 2005 accident and returned full-time to his team leader duties after about 8 months. The Applicant also suffered from a number of other unrelated medical conditions.

[6] It was Dr Burke’s view that the Applicant was able to perform his duties as an Electrical Technician despite his lower limb conditions and his other medical conditions. Having drawn these conclusions the doctor’s report continued:

“There would be a requirement for ongoing restrictions as he is currently experiencing in the work and health management plan which you have provided, the restrictions were no lifting greater than 10kgs, no lifting ladders or elevated work platforms, varying from sitting in the car for at least 10 minutes every hour, and the use of a brace to limit exposure to vibration in driving.” 2

[7] It was also the doctor’s opinion that the Applicant was fit to undertake work eight hours a day, five days a week. The doctor’s report noted that:

“The work he performs is ground level work such as meter changes, PTJs and switching. He is fit to undertake this.” 3

[8] In early 2011 the Applicant was diagnosed with carpal tunnel syndrome in his left hand. He filed a worker’s compensation claim in respect of this condition.

[9] On 15 March 2011 the Applicant received a letter from his Employer titled “Permanent Withdrawal of Electrical Technician Duties” 4 advising him, that, as a result of a number of doctor’s reports and medical certificates relating to him it had been established that he would “not be able to return to (his) substantive employment as an Electrical Technician...”

[10] Successful surgery was performed in March 2011 in relation to the Applicant’s carpal tunnel condition.

[11] On 17 June 2011 the Applicant received a letter from his Employer titled “Re: Termination of Employment - Worker’s Compensation”, notifying him that his employment with Essential Energy would terminate on 24 June 2011.

Applicant’s Case

[12] The Applicant filed a witness statement 5 setting out the history of his employment, his various health issues and the factors which led to the termination of his employment. Attached to his statement were a letter dated 10 February 2010 from Erica Stevenson, an employee of Essential Energy requesting a second report from Dr Burke; the letter of offer of employment as an Electrical Technician dated 15 September 2010, the medical report written by Dr Burke dated 27 October 2010; the letter withdrawing his Electrical Technician duties dated 15 March 2011; the second report from Dr Burke dated 23 March 2011 and the letter of termination of employment dated 17 June 2011.

[13] When giving oral evidence the Applicant stated that when he was given the Electrical Technician position in September 2010 he was to report to Keith Motby, a person with whom he had been working for approximately 20 years and who was well aware of his injuries. It was also his evidence that his letter of offer for the position was signed by Philip Green, Regional Manager for the South-East, and delivered to him by Bill Russell, an Area Manager. According to the Applicant he had had many dealings with both men and both were aware of the restrictions he was under in performing his duties as a consequence of his various injuries.

[14] In particular, it was the Applicant’s evidence that a meeting was held early in 2010 to discuss his use of sick leave. The meeting was attended by the Applicant, Mr Green, Mr Russell and three other employees of Essential Energy. It was explained to the Applicant that he was to be “case-managed” for excessive use of sick leave. The Applicant had advised the meeting that he was already being “case-managed’ for his injuries. According to the Applicant he had explained in detail all his injuries, “where they were up to” and that his foot was unlikely to get better. He had asked Mr Russell to leave the meeting when he had informed the other attendees about some of his medical conditions, as Mr Russell lived in the same small town and he wished to preserve his privacy.

[15] It was also the Applicant’s evidence that at the time he was offered the position of Electrical Technician in September 2010 he was not advised of the requirements of the position as set out in the document annexed to the Electrical Technician Competency Based Position Description titled “Employee Functional Requirements, Electrical Technician”. It was the Applicant’s opinion that had he been made aware of the requirements of the position as described in the second document, he would have questioned his suitability for the appointment.

[16] The Applicant was taken to the functional requirements document and identified a number of requirements which he would have been unable to perform. Although he was given the position description at the time he was offered the Electrical Technician position it was the Applicant’s evidence that he had no discussions with management about the document and that he had never been provided with the second document. He had had some discussions about the position with Mr Russell, the area manager, and understood that he would retain his same wage and conditions and would be required to do inspections and metering underground, whatever was required that did not entail climbing.

[17] When cross-examined the Applicant stated that he agreed with the majority of the information contained within the medical reports in evidence, other than the conclusion that he was unable to do the work. The Applicant was also taken to a document with which it appeared that he had been provided with on 9 April 2002 and asked if he agreed that it was the “functional assessment document” that he had denied having seen. The Applicant stated that he did not remember seeing the document and that it “was a long time ago”.

[18] When asked if he had ever provided his employer with any information about the permanent nature of his injuries, the Applicant responded that a number of employees in the company were aware that injuries such as his would not repair, but that he had never been asked for such information.

[19] It was put to the Applicant that he had approached Ms Robinson, an OH&S coordinator after accepting the Electrical Technician position and advised that he could not perform a number of functions of the position. The Applicant denied this, stating that he had complained to Ms Robinson that the vehicle provided to him was uncomfortable. He had noted that the roads were much rougher because of inclement weather and believed that the vibrations were exacerbating his carpal tunnel syndrome. He had approached Ms Robinson about seeing a doctor to have his hand fixed a couple of months after she had sent him for the medical assessment in October 2010.

[20] The Applicant was also asked a number of questions about medical certificates, Workcover certificates and whether he had provided medical clearances to his employer.

[21] The Applicant was also questioned about his claim that no-one from the Employer had contacted him to advise that his position was to be withdrawn or that he was to be terminated, and that he had learned of these matters by letters. The Applicant agreed that there had been limited contact with some employees in the HR area of the company, but that his own managers had not been in contact with him. The Applicant also denied that he had ever refused to attend a meeting requested by the company.

[22] When re-examined, the Applicant described the work he performed following his workplace accident in 2001 until he was promoted to team leader in 2006. He stated that after his accident in 2001 he was never required to perform any of the functional requirements of the Electrical Technician position set out in the document that he was supposedly sent by email in April 2002. It was also his evidence that his treating practitioners had provided directly to the company all the medical certificates and reports requested by Essential Energy and that he had not been asked to provide any additional information.

[23] According to the Applicant he had been asked by his employer if he was prepared to work in other areas. He explained that he was prepared to work elsewhere but that he wished to continue to live in Bega. The Applicant also reiterated that he had never refused to attend a meeting with the company concerning his future employment or his dismissal.

[24] Finally the Applicant again listed all those employees and managers at Essential Energy whom he claimed were well aware of the extent of his injuries and the continuing restrictions imposed upon him performing work.

Respondent’s Case

[25] The Respondent’s case was supported by oral evidence given by Ms Erica Stevenson, Workplace Relations Health Specialist, Employee Support. Ms Stevenson had not filed a witness statement but was called to give evidence as a consequence of the questions raised about the various medical assessments relating to the Applicant.

[26] Ms Stevenson’s evidence was that the Applicant’s case was referred to her by Ms Robinson. Ms Robinson, a case manager, had obtained a fitness for duty report relating to the Applicant from Dr Burke. This report had determined that the Applicant was fit for ongoing employment but with significant restriction. Ms Stevenson was responsible for complex cases or cases involving a poor prognosis. Ms Robinson determined that the Applicant’s case met those criteria and referred the Applicant to Ms Stevenson accordingly.

[27] Ms Stevenson explained the procedure she normally adopted when dealing with cases such as the Applicant’s. She stated that having read Dr Burke’s initial report she considered that he had not been asked by Ms Robinson the appropriate questions concerning the long term prognosis for the Applicant. Ms Stevenson then requested another report from Dr Burke using her own standard questions, and requested similar information from a number of other medical practitioners involved in the Applicant’s treatment. In a report dated 23 March 2011, Dr Bourke responded to each of Ms Stevenson’s questions.

[28] Ms Stevenson noted that although the Employer had many medical certificates and Workcover certificates for the Applicant, these were not always clear and often overlapped. While suitable duties were described, Ms Stevenson stated that the Employer had never been informed that the Applicant had reached “permanent medical improvement” and therefore required permanently modified duties.

[29] It was Ms Stevenson’s evidence that she was in constant contact with the Applicant, leaving messages for him or sending him texts as he rarely answered his mobile phone. She stated that she advised him advance that he would receive a letter permanently withdrawing his duties given the information provided by Drs Ferris and Knott. She also referred the Applicant for a vocational assessment in order to determine a suitable alternate role for him.

[30] According to Ms Stevenson the Applicant refused to take part in a video conference for the purpose of discussing the vocational assessment, the medical findings and a suitable alternate role, indicating that he preferred a face to face meeting.

[31] Ms Stevenson stated that Essential Energy had nothing on file concerning the Applicant’s long term prognosis prior to the case being referred to her. She also claimed that other employees including Phil Green, Bill Russell, Rosemary Robinson and Leonie Smith had a limited understanding of the Applicant’s work restrictions.

[32] It was Ms Stevenson’s evidence that the company made a number of efforts to find suitable alternative employment for the Applicant, once it was determined on the basis of the medical reports that he was not able to perform the full requirements of the position of Electrical Technician.

[33] When cross-examined, the witness explained that Ms Robinson was a regional health co-ordinator who was responsible for managing workers compensation claims and sick leave claims, and conducting ergonomic assessments and functional assessments. It had been Ms Robinson’s role to manage the Applicant’s case prior to it being transferred to Ms Stevenson. Despite Ms Robinson having managed the Applicant’s case, Ms Stevenson maintained that there was no full list of work restrictions on the Applicant’s file, and that the company had never been informed that the Applicant would require permanently modified duties.

[34] When it was put to Ms Stevenson that the Applicant’s evidence was that his direct managers were aware of his work restrictions she responded that that evidence conflicted with her information.

[35] Ms Stevenson conceded that the meeting described by the Applicant in early 2010 had taken place, and that it involved Mr Green, Mr Russell and Leonie Smith, as well as the Applicant. She also agreed that employees from Management and HR were involved in that meeting and in implementing return to work and restricted duties processes. She conceded that the meeting occurred prior to the Applicant being appointed to the Electrical Technician role.

[36] Ms Stevenson also agreed that the only meeting with the company that the Applicant had refused to attend was the video-conference mentioned.

[37] In response to a question from the tribunal, Ms Stevenson replied that she was not aware of the reason why the guidelines attached to the infrastructure reorganisation indicted that if employees were unsuccessful in an application for a position, and were subsequently offered another position, they would not be required to undergo a medical assessment for the new position they were given.

[38] Ms Stevenson was also asked about the Work and Health Management Plan referred to by Dr Burke in his assessment dated 27 October. She advised that she had copies of Plans 1, 2 and 5 and that it was Plan 5 to which Dr Burke referred. It was her evidence that Plan 5 was dated 15 August 2010, but that she thought that there was mistake in the date. She was unable to substantiate that the date was wrong.

[39] Ms Stevenson also claimed that the meeting held in early 2010 was for the purpose of discussing the Applicant’s non-work related health issues and the sick leave related to those matters. She stated that it was her information that the Applicant’s work related health issues were not discussed.

[40] The Applicant was recalled to the witness box and reiterated his evidence that his work related injuries were discussed at the meeting in early 2010.

Submissions for the Applicant

[41] Essentially it was the Applicant’s case that the Applicant was appointed to a position of Electrical Technician in September 2010 by managers of the Respondent who were well aware of the restrictions imposed on the Applicant’s ability to perform his duties as a result of his ongoing disabilities associated with a workplace accident.

[42] The Applicant relied on the Full Bench authority of James Boags and Son Brewing v Allan John Button 6 for the proposition that a dismissal based on incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has the capacity to perform the inherent requirements of the job.

[43] It was noted for the Applicant that he was not provided with the document concerning the functional requirements of the position at the time he was appointed to that position by managers, who were well aware of the restrictions on his duties at that time.

[44] It was submitted that there was much to distinguish those cases relied on by the Respondent where employees were injured following their appointment to a position and subsequently became unable to undertake the inherent requirements of the position, and the case of the Applicant who was directly appointed to the position without interview, and without a requirement for a medical examination.

[45] The Applicant was seeking reinstatement to his position, or failing reinstatement, 26 weeks of compensation. It was noted that the Respondent was a large employer, and there were no issues of viability of the company. It was also noted that the Applicant had sought to mitigate his loss and had applied for a number of positions in the local region. It was also put that some of the positions applied for had been denied him on the basis of his medical condition.

Submissions for the Respondent

[46] It was put that the Employer had discharged its duty of care throughout the period of the Applicant’s employment. It had implemented return to work plans and provided restricted duties for the Applicant. It was put that the infrastructure operations restructure had “changed the ball game” in relation to the Applicant’s position, as following the restructure, leaders and people in specific positions had to fulfil the full requirements of that function to be able to retain those positions. It was submitted that the restructure “flushed out” the full extent of the Applicant’s medical restrictions and the company was unaware of these until February 2011.

[47] It was noted by the Employer that the infrastructure operations restructure was not specific to the Applicant but instituted across the entire breadth of the operation of the company. It was the Employer’s view that a position had been reached where its capacity to manage the Applicant’s ongoing employment was beyond its capacity because of the restrictions involved. The Applicant could not perform the inherent requirements of the position, which involved the entire job, not just part of the job. It was also put that the Applicant had failed to retain the team leader’s position under the merit selection process because the team leader was now required to carry out the full functions of the position (i.e. the Electrical Technician duties) and not simply perform administrative duties and direct other people to do the physical tasks that the person cannot do.

[48] It was submitted that it was beyond the Employer’s capacity to restore the Applicant the position of Electrical Technician. It had extensively sought to provide alternative positions in line with the Applicant’s medical restrictions and the vocational assessment, but had been unable to find suitable alternative employment for him.

[49] The Employer put that the Applicant has rights available under section 241 and 242 of the New South Wales Workers Compensation Act. It was also submitted that the termination was fair, and reasonable.

[50] Finally, the Respondent submitted that reinstatement was not possible given the restrictions on the Applicant, and the Employer put that any compensation ordered would be affected by workers compensation issues.

Consideration

[51] There is no question in this matter that the Applicant is a person protected from unfair dismissal for the purposes of s.382 of the Act. In determining whether the dismissal was unfair I must have regard to those matters set out in s.387 of the Act.

Section 387(a): Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[52] Clearly, the termination of the Applicant’s employment was for reasons relating to his capacity to perform the duties of the position. Generally, where an employee is unable to perform the inherent requirements of the position for which he was employed there will be a valid reason for the termination of the employment. This case is somewhat different. The evidence is that the Applicant was injured at work in 2001. Upon his return he was provided with suitable duties which allowed him to perform meaningful work despite there being ongoing restrictions upon the manner in which he performed that work.

[53] The evidence also shows that despite suffering other health issues and having continuing restrictions upon the manner in which he performed work, the Applicant was promoted to team leader in 2006. From that time until the restructure in 2010 the Applicant states that he performed the duties of team leader which, given his restrictions and the largely administrative nature of the position, was an easier role for him to perform than that of Electrical Technician.

[54] With the restructure in 2010 the Applicant was unsuccessful in competing for one of the reduced number of team leader positions. The submissions 7 put for the Employer state that the reason the Applicant did not win a team leader role was because the person employed in the position was, post the restructure, required to be able to perform all the technical duties of the position, not only the administrative and management tasks. In fact the Employer submission was that the team leader was now required to be able to do all the required tasks not just direct others to carry out the physical role.

[55] After the restructure the Applicant was offered a position of Electrical Technician. The offer was made without the need for an interview and, importantly, expressed to have been made without the need for a medical assessment.

[56] I accept the Applicant’s evidence that the extent of his disabilities and the restrictions under which he was required to perform work were well-known to his immediate managers, the Regional Health Co-ordinator and a number of other people who attended the meeting in early 2010 at which his sick leave was discussed. The Applicant’s evidence in this regard was not challenged by any direct evidence called by the Respondent.

[57] I must find that the Respondent was well aware of the restrictions on the Applicant’s capacity to perform the position of Electrical Technician when the job was offered to the Applicant in September 2010. Consequently, I must also find that the actual job that was offered to the Applicant was an Electrical Technician position modified in such a way that the Applicant was capable of performing the role. It would be untenable that the Respondent could offer the Applicant a position in full knowledge that he was unable to perform the inherent requirements of that position and then, only one month later initiate a process which would have the ultimate result of terminating him from that position.

[58] I do not accept Ms Stevenson’s evidence that the Applicant was offered the position because the Respondent was unaware of the long - term prognosis for his injuries until the information was sought in late 2010 and early 2011. It was the company’s responsibility to ascertain such matters. The Applicant had given the company and the workers compensation insurer full access to his medical practitioners and medical records. His inability to perform parts of the Electrical Technician’s role appears, on the medical reports supplied, to stem largely from the injuries suffered in the workplace accident in 2001 (e.g. lifting, climbing, and working on elevated platforms). The Applicant stated that the restrictions had applied to him since 2001 and no evidence was called by the Employer to rebut this claim. I note, in this respect, that the Employer’s Return to Work and Health Management Plan Number 5 dated 15 August 2010, which formed part of the Employer’s evidence, stated the Rehabilitation Goal to be “Return to work to permanently modified duties 40 hours per week” (my emphasis). That plan which stated the Applicant’s injuries to be to his “knee and left heal “ (sic) listed Mr Russell as the Employer Contact and Rosemary Robinson as the Regional Health Co-ordinator. In circumstances where the Applicant was offered a permanent position as an Electrical Technician one month later it is disingenuous in the extreme for the Employer to claim that it was unaware of the long term prognosis for the Applicant. It also explains the content of the initial medical report written by Dr Burke, as it appears that he was provided with the return to work plan. The conclusions in his medical report appear to have been made on the premise that the Employer accepted that the Applicant’s duties would be permanently modified and thus, he was fit to carry out those modified duties.

Section 387(b): Whether the person was notified of that reason

[59] There is no dispute that the Applicant was notified of the reason for his termination. He received a letter of termination dated 17 June informing him that his position was to be terminated as he would “not be able to return to (his) substantive employment as an Electrical Technician bilateral knee, right calcaneus and left tibial injuries, or any associated duties, despite the ongoing rehabilitation support to assist you in your return to pre-injury duties”.

Section 387(c): Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[60] There was no evidence that the Applicant was ever involved in a discussion with representatives of the Employer during which he was given an opportunity to put forward his view concerning his capacity to perform the requirements of the Electrical Technician position. The Employer appears to have relied solely on the medical reports provided by the Applicant’s doctors and taken a decision that, as the Applicant would never be able to return to his full pre-injury duties there was no need for any further discussion with him, except so far as alternative employment might be concerned.

Section 387(d): Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[61] There is no evidence that the Applicant was ever denied the assistance of a support person and in fact, no evidence of any discussions at which one may have been involved.

Section 387(e): If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[62] The dismissal did not relate to unsatisfactory performance by the Applicant.

Section 387(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

[63] The Employer is a large organisation with several thousand employees. The size of the Employer is unlikely to have impacted on the procedures followed in effecting he dismissal.

Section 387(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

[64] It was apparent from the evidence that the Employer has a well-developed and sophisticated human resources infrastructure, at least so far as occupational health and safety is concerned. There was little evidence of the involvement of other human resource specialists in this dismissal but this was no doubt a result of the Employer conviction that the termination was related purely to matters of the Applicant’s physical ability to perform the inherent requirements of the position to which he was appointed.

Section 387(h): Any other matters that FWA considers relevant

In determining this matter I have taken into account the long period of service the Applicant had with his Employer and that the main reason his employment was terminated was the injuries he suffered as a result of a workplace accident in 2001. I also take into account that the Applicant would most likely have accepted a redundancy package following the 2010 restructure had he not been offered permanent employment as an Electrical Technician by his Employer, despite the Employer having knowledge of his permanent disability (see [58] above).

Conclusion

[65] In light of all the above I find that the termination of the Applicant’s employment was harsh, unjust and unreasonable given the manner in which, and the reasons for which, it occurred.

Remedy

[66] It was clear from the Employer’s submissions that there was some misunderstanding about the current situation concerning the Applicant’s worker’s compensation position. The Employer appeared to be under the misapprehension that the Applicant was receiving ongoing compensation payments. Information supplied by both parties since the conclusion of the hearing indicate that this is not the case. In the circumstances, before I finally determine this matter I intend to convene a short telephone conference with the parties to allow further submissions to be made as to remedy.

COMMISSIONER

Appearances:

Mr Aaron McKinnon, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), on behalf of the Applicant.

Mr David Bourne, Senior Workplace Relations Manager, Essential Energy, on behalf of the Respondent.

Hearing details:

2011.
Canberra:
September 30.

 1   Annexure 7 to the Respondents Outline of Submissions

 2   Annexure 4 to the Respondent’s Outline of Submissions (at p7)

 3   Ibid

 4   Exhibit A1, at 22

 5   Exhibit A1

 6   J Boags and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022

 7   Transcript PN 838

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