Guy Dennien v Copper Refineries Pty Ltd T/A CRL - Copper Refineries Townsville
[2016] FWC 3675
•7 JULY 2016
| [2016] FWC 3675 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Guy Dennien
v
Copper Refineries Pty Ltd T/A CRL – Copper Refineries Townsville
(U2015/8942)
COMMISSIONER BOOTH | BRISBANE, 7 JULY 2016 |
Termination of employment - arbitration.
[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.
[2] Mr Guy Dennien (the Applicant) worked for Copper Refineries Pty Ltd t/a CRL – Copper Refineries Townsville (the Respondent) for 27 years. He is a qualified plumber and worked as a machine equipment operator in the tank house. The Respondent is a subsidiary of Glencore Australia Pty Limited.
[3] In 2011 he experienced back pain at work. This was treated by physiotherapy, but the condition persisted. In October 2013 Dr Emery, a Neurosurgeon performed a successful L4/5 disc fusion surgery. The Applicant’s evidence is that he has been pain-free and symptom-free since January 2014.1
[4] A number of medical and other relevant reports were obtained by the Applicant or at the request of the Respondent. None-the-less, the Respondent formed the view that the Applicant, as a result of his back and other injuries, presented an unacceptably high risk of re-injury in the performance of his normal duties, and that no reasonable adjustment could manage that risk. Accordingly, having concluded he was not capable of discharging his responsibilities, his services were terminated.
[5] The grounds are conveniently summarised as follows:
a) The Applicant was no longer able to perform the inherent requirements of his role due to the risk of aggravation of injury; and
b) the accommodations proposed by the Applicant would involve such a significant change to his role that that they would be unreasonable in all the circumstances.
[6] The Applicant asserts to the contrary, that he has the capacity to perform the inherent requirements of his role of mechanical equipment operator; that there was no valid reason for his dismissal on the grounds that he could not perform the inherent requirements of his role without accommodations; and that there was no proper assessment by the Respondent of the medical evidence or the inherent requirements of the role.2
[7] He further asserts that the accommodations suggested by Ms Addie Jones, Occupational Therapist, are not only reasonable but also reflect what actually occurs on the job.
[8] The Applicant submits accordingly that the termination was harsh, unjust and unreasonable and he seeks reinstatement and orders providing for continuity of employment and payment for lost remuneration.
Background leading to dismissal
[9] The Applicant’s back issues began in 2011 with pain experienced while performing his duties. Physiotherapy provided relief, but the problem persisted to the extent he received L4/5 spinal fusion surgery in October 2014 performed by Dr Emery, who on 26 February 2014 certified the Applicant as fit to return to work from 6 March 2014 in a check-box form, noting ‘as per instructions from physiotherapist Paul Parker’.
[10] Mr Parker certified that the Applicant was fit to return to duties on 3 March 2014, but recommended he limit lifting to weights no greater than 10kg, break from sitting at least every 20 minutes, and not work on rough terrain, with progression to full duties “as tolerated”.
[11] The Applicant’s only previous serious injury was knee related, treated by a knee reconstruction in 1986.
[12] The Applicant sought to return to work from around 6 March 2014 on the basis of Dr Emery’s clearance, but his intention was to work for just one week before taking planned long service leave.
[13] The Applicant was required by the Respondent to be examined by Dr Wallace for a clearance before returning to work. Dr Wallace provided a medical certificate stating the Applicant was unable to attend to normal duties. On that basis he did not return to work and proceeded with his planned leave, later converted to sick leave by the Respondent, until 26 April 2014, intending to resume duties on 1 May 2014.
[14] The Respondent again required a clearance from Dr Wallace, who advised that a functional capacity examination was required. Accordingly the Applicant attended Ms Anna Nicholls, an Occupational Therapist for that examination.3 Ms Nicholls concluded that if the Applicant returned to his pre-surgery duties on a full-time, unrestricted basis there would be a high risk of injury aggravation. She said in her report dated 21 May 2014:
Mr Dennien has made a good recovery from back surgery and reported he is able to function in everyday activities at home. There is, however, a wide gap in his abilities to return to his pre-injury work role.
Considering the nature of his back condition and nature of the work, even with a graded Suitable Duties and Rehabilitation program, it is very doubtful Mr Dennien should return to the full requirements of the position at any time. I understand there is less staff to manage the shifts and all staff must be rotated through all job roles to ensure the heavy work is equally shared.
Mr Dennien is not recommended to return to work as a Machine Equipment Operator related to the high risk of injury aggravation which may occur, should he commence his work. Mr Dennien is recommended to only return to sedentary to light work roles to preserve his current functioning and to avoid aggravation or damage to his spine.
[15] On 30 July 2014, Dr Burke, Occupational Physician, reassessed the Applicant. His view was that Ms Nicholls overstated the case, assessing the Applicant instead as “around medium” risk of exacerbation or aggravation of the injury. He identified the surgery as ‘disk replacement’, but it was in fact a fusion surgery. He further recommended some accommodation for the Applicant ‘with respect to the more physically demanding tasks associated with his position’, specifically limitations with respect to heavier lifting activities.
[16] Dr Burke provided a further report at the Respondent’s request dated 12 September 2014 in which he stated:
There are no measures that I can identify that would achieve a low-risk ranking without a restriction to his full job criteria.
[17] Following receipt of that report, the Respondent representatives met with the Applicant, who was supported by Mr Brand, on 19 September 2014, and advised him of the report and invited him to obtain further medical opinion.
[18] The Applicant obtained a further report from Dr Emery dated 23 September 2014 that stated:
Condition
A year post fusion
Full clearance
It looks like Guy has been through a little bit of a headache trying to resume full clearance. I do not really understand based on the current clinical symptoms, clinical examination and latest investigations I believe that his condition is stable and stationary and that is suitable for full clearance. I believe that he is fully fit for his job role criteria and is much as we can see on the CT scan we have achieved a fusion between L4/L5 meaning he is not at risk of reinjuring that specific area. Any physical activity anyhow whether he has had surgery or not should be done with common sense.4
[19] Dr Wallace’s view, in a letter dated 10 October 2014, was that the Applicant “constituted a medium risk unless his duties were modified”; explained Dr Burke’s relevant expertise; but stated that on “the question to be determined, that is, what sort of risk the workplace poses to the Applicant, Dr Burke’s opinion shouldn’t prevail over Dr Emery’s on this occasion.” Dr Wallace clarified by way of affidavit that was read into the record5 that this was a dictation error. He had intended to say the opposite, namely that Dr Burke’s opinion should prevail over that of Dr Emery.
[20] Ms Nicholls undertook a further assessment on November 2014 and provided a supplementary report dated 4 December 2014. She again assessed the Applicant as a high risk of injury re-aggravation.
[21] On 22 December 2014 the Applicant was required to attend a meeting with the Respondent’s representatives. He was assisted by Mr Brand as a support person. At that meeting he was informed that the Respondent had formed the view the Applicant could not perform the requirements of his role and that no alternative role was available.
[22] The Respondent advised the Applicant that it considered it had no other choice but to terminate his employment based on his inability to perform the inherent requirements of the role. The Respondent invited the Applicant to provide any further medical information by 23 December 2014. Unsurprisingly the Applicant’s solicitors sought an extension of time.
[23] On 13 March 2015, the Applicant provided the Respondent with a report of Ms Addie Jones, Occupational Therapist. Ms Jones concluded that the Applicant was “at an increased risk of re-injury.” She concurred that modification to his duties would place him at low risk of injury. The recommended modifications included lifting only medium weights, avoiding prolonged work in confined spaces, avoiding stooping and bending postures.
[24] On 1 April 2015 the Applicant’s solicitors wrote to the Respondent as follows:
Perhaps not surprisingly Ms Jones suggested that Mr Dennien is at an increased risk of re-injury to his lower back. Injured employees who return to work from injuries are often at some form of increased risk of re-injury. Ms Jones did not suggest anything more than Mr Dennien being at an increased risk. She did not suggest that it was high or even a moderate risk.
[25] The letter reiterated Ms Jones’ assessment that the Applicant would be physically suited to perform all the duties outlined in the position.
[26] The letter suggested when the reports of Ms Jones and Dr Emery are read in their totality there is medical evidence that the Applicant can perform the inherent requirements of the role. The letter noted that Ms Jones did suggest some modifications lifting only up to medium weights, avoiding prolonged work in confined spaces, and avoiding bending or stooping postures.
[27] The Applicant asserted that these are relatively minor modifications and relatively easy to implement and monitor. Examples were given: a crane is used for heavy scrap; copper bundles are at waist height and no or little bending is required.
[28] It was noted the training packages all state that if scrap is too heavy to remove yourself then find another operator to assist or use the crane.
[29] The letter noted “the contention by the Respondent that the modifications are not reasonable is not correct and it is further negated by the practices actually utilised in the workplace.”
[30] The Respondent wrote to the Applicant through his solicitors on 3 June 2015 stating it has considered all the available medical evidence, and concluded that he could not perform the inherent requirements of his role without accommodations, but the suggested accommodations involved a significant change to the role itself and so were not reasonable. The Respondent advised the Applicant that his employment would terminate on 15 June 2015. The Respondent paid the Applicant for the period from his surgery until that date.
[31] The Applicant also exhibited short post-termination reports of Ms Jones and Mr Parker stating that each was of the opinion that he was fit for duty subject to normal precautions for any worker as to lifting heavy weights.
The Applicant’s case
[32] The Applicant’s case is that he had capacity to perform the inherent requirements of his job as a mechanical equipment operator. Further he asserted there was no valid reason for his dismissal based on the grounds he could not perform the inherent requirements of his role without accommodations because, he submitted, there was no proper assessment by the Respondent of the inherent requirements of his role. 6
[33] The basis of this submission is that the Respondent did not contact or seek clarification from his treating Physiotherapist, Mr Parker or Surgeon, Dr Emery. Further the decision-maker, Mr Harvey did not give sufficient consideration to a long-standing employee of some 27 years instead he based his decision on the recommendations of the doctors and his colleagues.7
The Applicant’s evidence and submissions
[34] Affidavits were provided by the Applicant; Ms Jones, Occupational Therapist; Mr Parker, Physiotherapist; and Mr Brand who was the Applicant’s supervisor and support person at various meetings. Each also gave oral evidence. Dr Emery no longer lives in Australia and did not give evidence.
Guy Dennien
[35] The Applicant gave evidence of his employment history and various issues related to his knee and back injuries and surgery, and his ability to perform his duties. He affirmed his desire to continue working in his previous role. His evidence was that he suffered no back pain and in his view had received a full medical clearance from the Operating Surgeon.
[36] He was cross-examined at length about his work abilities and the limitations noted in reports of various health professionals; the work practices at the Refinery, and his general state of health.
[37] Dr Emery’s reports were exhibited by the Applicant,8 who submitted that the reports provided full clearance, quoted above. He submitted that the reports relied on by the Respondent from Ms Nicholls and Dr Burke predate the full clearance from Dr Emery.
Addie Jones
[38] Ms Jones conducted a functional capacity assessment in her rooms in February 2015. Ms Jones was briefed with Dr Emery’s latest clearance in addition to the reports of Dr Burke, Ms Nicholls and Dr Wallace.
[39] She was also briefed with various training packages9 which deal with the tasks involved in working as a machine equipment operator with the Respondent. Those documents were in evidence in the proceedings.
[40] Ms Jones noted that the Applicant had a full range of motion with the exception of the left knee flexion due to the earlier knee reconstruction.
[41] She assessed him as having ‘unlimited’ tolerances for: sitting, standing walking, overhead reach, forward reach, bending/stooping, stair climbing, balancing, pushing and pulling, and ladders; but reduced tolerance for crawling. Her comments were that he should avoid work in confined spaces due to the left knee condition. Additionally there was a reduced tolerance for low postures i.e. squatting and kneeling and her comments were “able to access low postures however should not work for prolonged or repetitive periods in a squat or kneel position due to the left knee condition.”
[42] As to manual handling, Ms Jones wrote that: “despite Mr Dennien lifting the above-stated weights (heavy) on a one-off basis he is best suited to medium work on a more sustained work basis due to his history of back pain.” She added the Applicant reported no pain throughout the assessment.
[43] Ms Jones also undertook a Position Review of the role of machine equipment operator. She reviewed all relevant training packages and then summarised the physical demands of this position against the Applicant’s results in the functional assessment for Tank House Operations and Cell Operations. Ms Jones’ opinion was that the Applicant would be physically capable of performing these tasks should he not be required to lift heavier than medium loads.
[44] With regards to handling fallen scrap, fallen cathode and fallen anode which requires accessing confined spaces in low postures, her opinion was that the Applicant should avoid this task due to the need to access confined spaces and lift heavy loads.
[45] He could perform without restriction the tasks of operating the anode scrap machine and crane operations.
[46] As to forklift operations Ms Jones’ opinion was that he was able to perform them but should avoid repetitive bending postures. The Applicant should also avoid prolonged work in low postures and lifting over medium loads.
[47] In summary, her assessment was that:
- despite being physically capable of performing all tasks assessed during the functional capacity assessment the Applicant does have a history of lower back injuries. (She notes the positive outcome following his surgery and he is now pain free and able to participate in all tasks he did prior to his injury).
- should the outcome of this report be based on his one-off performance and the results of the Functional Assessment, the Applicant would be physically suited to performing all functions outlined in his position.
[48] The final paragraph of the report states as follows:
“It is in my opinion considering his age, medical history (long history of back injuries), medical reports, outcomes of the Functional Capacity Assessment and an understanding of the physical demands of his position as a machine equipment operator, Mr Dennien is it at an increased risk of re-injury. Both Dr Wallace and Dr Burke have noted that should specific modifications limitations be put in place Mr Dennien would be at a low risk of re-injury. The results of this assessment concur with these findings.” (emphasis added)
[49] She recommended as follows:
Mr Dennien is at an increased risk of re-injury to his low back. Should modifications be put in place i.e. lifting up to medium weights only, avoiding prolonged work in confined spaces, avoiding bending/stooped postures this risk would be reduced.
Paul Parker
[50] Mr Parker is a qualified physiotherapist. He was the treating physiotherapist for the Applicant post-surgery. He characterised the treatment as an ‘uncomplicated rehabilitation’.10
[51] In March 2014 he made some recommendations that included limitations on weights that could be lifted, and breaks required by the Applicant. He considered these were not long-term restrictions and were part of the initial graduated return to work program. He noted such an approach was appropriate for all orthopaedic surgical procedures that go through rehabilitation.
[52] It was Mr Parker’s opinion that:
“At the time of the clearance, Mr Dennien had made an excellent recovery without complications from his spinal surgery that had been performed some 4 and half months earlier. He was diligent in his rehabilitation. He was at a low risk of re-injury.”
[53] Post termination in July 2015 the Applicant also underwent a further assessment. This was a real-time ultrasound.
[54] Mr Parker said the results give objective data that the Applicant had made an excellent recovery. Further in his opinion he is clear for unrestricted duties including lifting with normal precautions that apply to any worker. He remains a low risk.
[55] Further it is his experience that in assessing prognosis the focus needs to be on the individual patient rather than the patient group and in the Applicant’s individual case he has made an excellent recovery.
Mr Brand
[56] Mr Brand was the Applicant’s immediate supervisor. His evidence concerned the functions of the Applicant’s job, and is discussed below in the context of reasonable accommodations.
The Respondent’s case
[57] The Respondent’s case is that it was reasonable for it to rely on the medical assessments carried out by Dr Burke and Anna Nicholls, and that their reports establish that the Applicant could not safely perform the inherent requirements of the role without accommodations being made, due to the unacceptable risk of re-injury. Further, the accommodations required were not reasonable. Therefore the Applicant lacked capacity to perform his job.
The Respondent’s evidence and submissions
[58] Affidavits were made by Anna Nicholls, Occupational Therapist; Dr Burke, Occupational Physician; Paul Taylor, Refinery Manager, the Respondent; Richard Harvey, Chief Processing Officer, Glencore; and Shari Barwick, Senior Human Resources Advisor.
Dr Burke
[59] Dr Burke provided two reports. He had access to the reports of Dr Wallace and Ms Nicholls and the Applicant’s job role criteria, and consulted in person with the Applicant during the assessment.
[60] He concluded in the assessment that the risk level was medium based on:
1. The Applicant’s role as a machine equipment operator involving significant physical demands (getting in and out of tanks, manual handling et cetera); and
2. While it is apparent that the Applicant’s disc replacement surgery had been successful (he reported he was asymptomatic and presented as having done very well in his recovery), disc replacement surgery is relatively new surgery. The knowledge base is not as defined as it is for other surgeries and the long-term prognosis associated with disc replacement surgery, particularly in physical demanding position such as the Applicant’s, is very uncertain.
[61] He concluded that it would be possible to mitigate the excess risk associated with his position through accommodation or imposition of limitations with respect to heavy lifting activities.
[62] A further report was sought in September 2014. In preparation of that report no further physical examination was conducted. The conclusions reached were certain limitations required in regard to lifting and bending.
[63] Dr Burke considered there were “no measures that I can identify that would achieve a low-risk ranking without the need for a restriction to his full job criteria.”11
[64] During cross-examination, Dr Burke indicated he was not aware that the Applicant did not actually have disc replacement surgery but in fact had anterior lumber interbody fusion.12 He indicated he only became aware of this during cross-examination, not having been provided with Dr Emery’s report. He agreed that the surgeries are different and stated as follows:
The difference---?--- They both treat the same condition, one - obviously a better outlook with one than the other
So when you refer to a disc replacement being relatively new surgery, those comments don’t apply to a fusion, do they ?--- No they don’t apply to a fusion. 13
[65] On whether this changed the opinion and recommended restrictions, Dr Burke stated:
No, I still maintain the same opinion in respect to the risk scenario that I’ve stated before. So even though a lumber fusion is a better-known surgery and it’s had a longer period of experience with it, there are, you know, significant issues in the longer term. You know, for instance, adjacent disc degeneration and similar considerations like that. So I still have significant concerns about risks associated with, you know, the more specifically demanding tasks that were part of his job role. 14
[66] He maintained that the nature of the surgery did not change his opinion;15 and when it was put to him in cross-examination the reports were ‘fundamentally flawed’ he responded:
Now I agree that there is a flaw in those reports but I'm here giving evidence and I'm here to help the court as much as I can and I'm telling you that even though those reports are flawed because I had incomplete information at that time, I can give you my opinion with respect to the updated information and even though the surgeries are different, I don't believe that the risk, the foreseeable risk, with respect to future injury or aggravation is any significantly different. 16
[67] Dr Burke agreed he had never been provided with a copy of Dr Emery’s report and that he last saw the Applicant on 30 July 2014.
Anna Nicholls
[68] Ms Nicholls conducted both the functional capacity assessment and a worksite assessment in May 2014 at the request of the Respondent. Ms Nicholls’ assessment involved an interview with the Applicant as part of the functional capacity evaluation along with physical screening assessment tasks which included sitting, standing, walking, using steps and stairs, lifting, kneeling, squatting, crawling, balancing, using a ladder, working above head, pulling/pushing and grip strength.
[69] Ms Nicholls also conducted a worksite assessment. At that worksite assessment the Applicant performed the various tasks that make up the job of machine equipment operator.
[70] As part of the summary and recommendations Ms Nicholls wrote:
“The results of the functional capacity evaluation (FCE) - found Mr Dennien has prolonged standing restrictions, restrictions with kneeling, squatting and crawling, restrictions with working above head level and while he can lift to Heavy weight range - it is not recommended by the physiotherapist that he lifts more than 10kg. Considering the surgery Mr Dennien has undertaken this would be a wise restriction for Mr Dennien to have.
Mr Dennien did not cope well after the Functional Capacity Evaluation in relation to aggravation requiring as massage or physiotherapy input and in terms of his poor cardio vascular fitness … Probably of bigger concern, is the awkward postures he would need to assume when lifting heavy weights i.e. when cathodes fall off in the conveyor where the overhead gantry crane cannot be used.”
[71] On the question of risk to return to his work and the need for correct lifting technique Ms Nicholls’ evidence was:
“… and I believe that with his knee, in combination with his L5/S1 ongoing issue, that that will pose a high risk that he may hurt himself further if he goes back to that job.17
…
Now, so far as Mr Dennien using correct lifting techniques is concerned, what do you say, if anything, in relation to his ability, on your observations, to use correct lifting techniques?---He would have significant difficulties using correct lifting techniques, based on his lumbar spine and also his left knee condition.”18
[72] Ms Nicholls did not recommend return to work as a machine equipment operator related to the high risk of injury aggravation which may occur should he commence this work.
[73] The Respondent asserts, based on the evidence detailed above that the Applicant was unable to safely perform the inherent requirements of his job due to the risk of re-injury.
[74] The evidence of Mr Taylor, Mr Harvey and Ms Barwick went to the processes of assessing the Applicant, and the details of his job.
Could the Applicant perform the inherent requirements of the job?
[75] The issue of capacity to perform the inherent requirements of a position in relation to termination of employment was considered in J Boag and Son Brewing Pty Ltd v Button19 (Boag) where a Full Bench of Fair Work Australia cited the decision in Qantas Airways Ltd v Christie,20where McHugh J drew attention to the distinction between an employee’s job and position:
A person’s job is therefore primarily concerned with the tasks that he or she is required to perform.
…
…in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks the person must perform. A person’s position ... is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.21
[76] The Full Bench in Boag considered that there may be circumstances where the capacity to perform the inherent requirements of the job may form a valid reason for termination:
It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. .… Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.22
(Footnotes omitted)
[77] The parties agreed that the work of a machine equipment operator can be described as 6 different functions. These are:
(a) Cell Attendant
(b) Forklift operations
(c) Operating the anode scrap machine
(d) Making and putting on straps
(e) Operating the Cathode stripping machine and anode prep machine
(f) Crane operation
[78] The Applicant’s case is that at the time of the dismissal he was fit to undertake the role of machine equipment operator, a role he has performed for some 10 to 12 years.
[79] He submitted there was no proper assessment of the medical evidence or the inherent requirements of the role, and that there was no or insufficient weight to the medical report of Dr Emery.
[80] He asserted that the medical reports obtained by the Respondent predate the second clearance from Dr Emery and were based on inaccurate job criteria.
[81] His response to Ms Jones’ comments that he was at an increased risk of re-injury to his lower back was that the comments have to be read in context of her report as a whole and alongside Dr Emery’s 23 September clearance.
[82] It was argued for the Applicant that injured employees returning to work are often at some form of increased risk of injury and that Ms Jones did not suggest anything more than an increased risk which she did not classify the risk.
[83] The post-termination reports, although brief, are consistent with this view.
[84] The Respondent relied on Dr Burke’s evidence over Dr Emery’s. Its reasons for doing so was both his extensive experience as an Occupation Physician and that the medical assessments directly considered the capacity to perform the position in each of the specific duties. In contrast, Dr Emery did not assess the ability to undertake the specific requirements of the job role criteria and any general requirements of the role.
[85] Boag is authority for the proposition that in assessing the inherent requirement position or role, it is the substantive position not the restricted duties that must be considered. The Full Bench said in Boag:23
Where an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must considered. (emphasis added).
[86] The Respondent asserted in its letter dated 3 June 2015 that “all of the medical evidence suggest that the Applicant is at an elevated risk of re-injury if he were to perform his role without restriction”. The Applicant submitted that this is incorrect as it gives no or insufficient weight to the medical evidence of Dr Emery, who had cleared the Applicant to return to work, subject to ‘common sense’ restrictions.
[87] Dr Burke and Ms Nicholls concluded there was an elevated risk of re-injury without accommodation both as to lifting and bending.
[88] In summary, the Applicant’s argument was that Dr Burke’s report did not give appropriate consideration to Dr Emery’s clearance, was based on a draft job description, and was based on a wrong understanding of the surgical procedure actually performed. Further, Dr Burke’s report preceded Dr Emery’s second clearance.
[89] There are therefore, in this case, competing medical and health practitioner assessments of the Applicant’s fitness to perform the requirement of his role.
[90] The Respondent submitted that it was reasonable for it to prefer Dr Burke’s opinion over that of Dr Emery:
97. In making its decision, CRL was persuaded by the evidence of Dr Burke over the evidence of Dr Emery because:
(a) Dr Burke is an Occupation Physician and has extensive experience in assessing the capacity of workers to safely perform their roles within the resources industry;
(b) Dr Burke provided medical assessments of Mr Dennien that directly considered his capacity to perform his position in relation to each of his specific duties; and
(c) Dr Emery did not assess Mr Dennien's ability to undertake the specific requirements of his Job Role Criteria, or any general requirements of his role.
[91] I note that Dr Emery’s report was limited to a description of the state of the Applicant post-surgery, in that it describes his condition as stable and that he is fully fit for the job. He did not base his assessment on the Applicant’s job requirements.
[92] The Respondent argued in final submissions in reply that little weight should be placed on Dr Emery’s report because he was not available as a witness. While that is true, the report stands for what it is: a surgeon’s post-operative review of the success of the procedure. Its relevance to the Applicant’s ability to perform his job’s inherent requirements is that the spinal surgery was successful in fusing the two vertebrae, alleviating his symptoms.
[93] Dr Burke’s more comprehensive assessment was specifically directed at the Applicant’s capacity.
[94] I conclude that it was reasonable for the Respondent to rely on Dr Burke’s report because:
- Dr Emery’s report was not an assessment of capacity against actual job requirements but an analysis of the success of the surgical procedure;
- Dr Burke is a specialist in such assessments, and he undertook a detailed analysis of capacity; and
- Dr Burke’s report examined the future risks for the Applicant in the context of his job.
[95] In my view the fact that Dr Burke’s conclusion was based on disc replacement not disc fusion surgery, does not, of itself, disqualify the Respondent from relying on this report. I accept his evidence in cross-examination that the risk scenario did not change between the two types of surgery.
[96] Despite the difference of risk categorisation between Dr Burke (medium) and Ms Nicholls (high), the reports made similar findings. However, at that time there were two other reports that made similar findings. In later documentation and under cross-examination Ms Nicholls maintained her view that there was a high level of risk. The Respondent therefore had before it two reports indicating a high risk or medium risk of re-injury.
[97] The Applicant was also assessed by his own Occupational Therapist Ms Jones.
[98] For the purposes of considering the question of inherent requirements, she did not disagree with Dr Burke’s nor Ms Nicholls’ conclusions as to increased risk, concluding:
“… considering his age, medical history (long history of back injuries), medical reports, outcomes of the Functional Capacity Assessment and an understanding of the physical demands of his position as a Machine Equipment Operator, Mr Dennien is at an increased risk of re-injury. Both Dr Wallace and Dr Burke have noted that should specific modifications / limitations be put in place Mr Dennien would be at low risk of re-injury. The results of this assessment concur with those findings.
Recommendations
1. Mr Dennien is at an increased risk of re-injury to his low back. Should modifications be put in place i.e. lifting up to medium weights only, avoiding prolonged work in confined spaces, avoiding bending / stooped postures this risk would be reduced.”
[99] Ms Jones did not otherwise categorise the level of risk.
[100] The Applicant submits that the report has to be read in context. I accept that proposition. However, Ms Jones’ conclusions are consistent with the context and can be fairly understood to mean there was an increased risk of re-injury, even with the Applicant being asymptomatic at the time of the assessment. Ms Jones, having read Dr Burke’s report, concurs with its findings of the need for specific modifications to lower the risk of re-injury. She explicitly recommended adjustments to his work.
[101] Thus, all three practitioners found an increased risk of re-injury without accommodation.
[102] The Applicant suggested that Dr Burke’s report was out of date and does not take into account the general improvement in his capacity. At the time of the assessment by Ms Nicholls and Dr Burke, three months after his first clearance, the Applicant was already asymptomatic. It is difficult to accept that conclusions of risk of re-injury were invalid on the basis of improved condition and lack of symptoms.
Conclusion on inherent requirements of the job
[103] A termination must be defensible or justifiable on an objective analysis of the relevant facts.24
[104] The Respondent relied on medical advice based on a functional analysis of the position. Dr Burke’s specific advice was “There are no measures that I can identify that would achieve a low-risk ranking without the need for a restriction to his full job criteria.”
[105] Ms Jones’ July 2015 report concurs with Dr Burke’s advice noting that the Applicant was at an increased risk of re-injury and that specific modifications and limitations were necessary.
[106] The preponderance of the medical opinion was clearly that the Applicant presented with tangible risk of re-injury unless there were significant modifications to his role to address issues of lifting, bending etc.
[107] It is not unreasonable for an employer to rely on those reports, and to have to deal with conflicting expert opinion, such as Dr Emery’s clearance compared with an assessment of high risk or medium risk of re-injury from other professionals.
[108] The issue of conflicting medical opinion was considered in Ermilov v Qantas Flight Catering Pty Ltd,25 in which the employee, who had suffered a back injury at work, was the subject of both medical clearances and certificates stating he was not fit to return to work. The employee argued the opinion of his treating doctors should have been preferred. The Commission found it was reasonable for the employer to hold concerns about the employee’s capacity, and to resolve the apparent medical conflict by preferring other reports that were more detailed and focussed specifically on capacity to discharge the required duties. On that basis, it was held there was a valid reason to terminate on capacity grounds.26
[109] Here, the Respondent’s decision that the Applicant could not perform the inherent requirements of his substantive role due to the risk of aggravation of his lower back is both defensible and justifiable on an objective basis of the reports available to it. Despite the submissions of the Applicant, such a conclusion is not to take Ms Jones’ report out of context but consistent with it.
[110] Therefore the conclusion by the Respondent that the Applicant could not perform the inherent requirements of the position is sound and well founded.
Reasonable Accommodation
[111] It is necessary to consider whether the modifications to the job, as proposed, were reasonable.
[112] In March 2015, following an assessment of Ms Jones’ proposed accommodations, the Respondent advised the Applicant that it considered the modifications proposed were not reasonable, but the Respondent advised it was prepared to consider further submissions on behalf of the Applicant.
[113] The Applicant’s solicitors made further submissions by letter dated 1 April 2015 arguing that the views of Dr Burke and (taken in context) Ms Jones supported the Applicant’s being fully fit to return to work, and that the suggested modifications were “minor” and “easy to implement and monitor”, and consistent with training and actual work practices.
Assessment of accommodations proposed in Accommodation Matrix
[114] Following the letter, the Respondent reviewed the accommodations proposed by the Applicant’s solicitors by preparing an assessment against the job criteria role. This “accommodation matrix”, prepared by employees of the Respondent, was in evidence. 27 In summary, it concluded that 6 out of 7 proposed accommodations were not reasonable.
[115] It essentially assessed the risk as commented on by Dr Burke and compared the opinion of Ms Jones. The matrix also looked at Dr Burke’s and Ms Jones’ proposed accommodations where there was an increased risk of injury.
[116] Along with the matrix both Mr Brand, who supervised the Applicant’s work for many years and Mr Taylor, the Refinery Manager gave evidence about the job of machine equipment operator. Both these employees have experience of the work of machine equipment operator, although Mr Taylor was not involved on a day-to day basis with the Applicant.
[117] In examining each of the job roles and whether the proposed accommodations were reasonable I am mindful of two things. First, the Applicant in final submissions in reply, correctly in my view, asserted that “an employer cannot create an inherent requirement by stipulating for something that is not essential”. Second, there is some tension between the evidence of Mr Brand and Mr Taylor as to crucial aspects of the role. Except where indicated, I have adopted Mr Brand’s evidence without necessarily preferring it. That is, the following analysis tends to take the Applicant’s evidence at its highest. On that basis each element and task discussed is an inherent requirement.
Cell Attendant
[118] Ms Jones’ view was that the Applicant would be physically capable of performing this task should he not be required to lift over medium weight loads, and avoided repetitive bending.
[119] While it is agreed that a cell attendant climbs in and out of cells using awkward postures, the Respondent submitted that the climb would be required every 4 to 6 minutes and for 10.5 hours a day. However in Mr Brand’s view this would be for a period of every 8 to 12 minutes for up to 5 to 8 hours.28
[120] A further task involves squatting down and picking up nodules of copper from the floor of the cell with the bucket weighing between 5 to 25 kg. Mr Brand agreed with that but noted a cell attendant is only required to lift what they feel comfortable with.
[121] It is the Respondent’s view that repeated bending is required to access and exit the cell. This repeated bending is required to pick up the nodules, picking up fallen scrap requires lifting medium loads. The Respondent concluded that to exclude the Applicant in terms of the accommodations proposed by Ms Jones would prohibit a worker from performing a significant portion of the task of cell attendant and as such the accommodation was not acceptable.
Is the accommodation reasonable?
[122] While Ms Jones’ view is that the Applicant was physically capable of performing the tasks, the accommodations proposed are to avoid repetitive bending and lifting over medium weights.
[123] The parties agree the task of cell attendant involves walking across the uneven surfaces, lifting between 5-24kg and climbing in and out of cells. Mr Brand noted that using awkward postures is not for 10 to 12 hours but only 5 to 8 hours and the period was between 8 and 12 minutes not every 4 to 6 minutes.
[124] The work requires climbing in and out of cells for at least 5 to 8 hours and during that time, picking up nodules. The work as cell attendant involves repetitive bending for significant periods of time.
[125] It would therefore be not possible to work within the accommodations proposed because bending and lifting is required for 5 to 8 hours, on the evidence of Mr Brand.
[126] In my view, this restriction is enough to support the Respondent’s conclusion that the accommodation is unreasonable.
[127] I would add however that if 1 of the 2 workers cannot lift above medium loads then it may well be that this operation falls to the other worker. This proposed accommodation may also be unreasonable on that basis, but there is insufficient evidence to reach a firm conclusion.
Forklift operations
[128] Ms Jones noted the Applicant would be physically capable of performing this role but should not be required to lift over medium loads. That the tasks associated with this position as it applies to the limitations are that the forklift operator will be required to push or kick together the tines of the forklift and fit various lifting and jib attachments. There is also a requirement to be able to sustain static seated postures for long periods of time.
[129] Mr Brand’s evidence is there is no lifting or pushing. The forklift is driven into the lifting and jib attachments and a chain is attached.
[130] Mr Taylor noted that at times the jib attachment cannot be properly fitted and the operator is required to manually manipulate it.
[131] Further, driving can be between 2½ to 3 hours without a break.
Is the accommodation reasonable?
[132] On the basis of Ms Jones’ accommodation, which has no time restrictions in terms of sitting in the forklift and the fact that tasks are not repetitive or only occasionally repetitive, and should the problem occur with fitting the jib attachment, it would seem to me to be in this situation, it would be appropriate to seek assistance to ensure compliance with this accommodation.
[133] It would seem that the Applicant is therefore not required to lift over medium loads and therefore is able to participate in forklift operations. This accommodation is reasonable in the circumstances.
Operating the anode scrap machine
[134] Ms Jones’ report does not describe the tasks in the same categories as the Respondent. Nevertheless her reports are comprehensive and in regards to operating the anode scrap machine, that is, operating the control desk and other activities, she concludes that the Applicant is able to perform these tasks unrestricted.
[135] However as part of operating the anode scrap machine the task also requires retrieval of a fallen anode. And in a separate analysis “Handling Fallen Anode” Ms Jones concludes that this task should be avoided.
[136] Mr Brand, on this point, noted that handling of fallen anode is not required on a daily basis because the operators in the tank house are rotated on a daily basis to different tasks. Mr Taylor considered manipulating fallen scrap is often a daily task when performing this role. He explained that if fallen product affects the performance of the scrap machine it must be handled immediately rather than at the end of the shift.
[137] On this point I prefer the evidence of Mr Taylor: while rotations occur, the tank house operators must be able to do their daily tasks and there is a prohibition on the Applicant doing this task.
[138] As to the point of the A-frame assisting in reducing the need for manual intervention, it would seem to me that Mr Taylor’s point that the operator is still required to manipulate the fallen product into a position that will allow the lifting of hooks to be attached, would fall outside the allowable tasks of the Applicant.
Is the accommodation reasonable?
[139] I conclude that the Respondent’s view that this restriction is not a reasonable accommodation on the task of operating the anode scrap machine is supported on the evidence.
Making and putting on straps
[140] Ms Jones indicated that the Applicant is physically capable of performing this task but should avoid prolonged work in low postures and lifting over medium loads.
[141] This task involves working in a slightly bent forward position to place the strap onto the ground. While I accept Mr Brand’s comments there are breaks throughout this process he notes that every two minutes an operator puts two straps on a bundle. The repeated nature of the bent forward posture would make it a significant challenge to avoid prolonged work in low postures.
[142] I accept however that the rolling and guiding of new rolls is in fact an automatic task and not done manually.
[143] This task requires bending forward repeatedly to put straps onto the copper bundles for a majority of the time (that is every 2 minutes - subject to breaks of 75 minutes- for up to 10½ hours a day).
Is the accommodation reasonable?
[144] Working on this task i.e. bending forward to put straps onto the copper bundles would be inconsistent with Ms Jones’ recommendation of avoiding prolonged work in low postures.
[145] It follows that the task cannot be done in a way consistent with Ms Jones’ recommendation, and it was reasonable for the Respondent to conclude the adjustment was not a reasonable one.
Operating the Cathode stripping machine and anode prep machine
[146] Ms Jones does not deal with the cathode stripping machine except that to the extent the task involves handling fallen or misaligned cathode. It is her opinion that the Applicant should avoid this task due to the need to access confined spaces and lift heavy loads.
[147] Mr Brand considers that handling fallen or misaligned cathode mainly occurs at the end of the shift when there will be a crane or team lift. Further this is not a significant part of the task. Mr Taylor makes the same comment as he did about the anode scrap machine, that is, fallen product must be handled immediately where it affects the performance of the machine. Further while the A-frame reduces manual intervention, manual manipulation of the cathode or plate is still generally required to allow attachments to be fitted.
[148] The additional tasks of shovelling and sweeping although not specifically commented on in terms of an accommodation are inconsistent with the general statement made by Ms Jones that Dr Burke’s specific modifications / limitations would place Mr Dennien at a low risk of re-injury.29 Dr Burke has considered that there should be an avoidance of lifting from floor to waist of 15kg or above and an avoidance of repetitive sustained bending, pushing and pulling.
[149] The shovelling and sweeping occurs in cramped areas but this does not appear to be a regular occurrence. Another part of this task involves dragging of hoses and it would appear that this generally happens at the end of the shift.
[150] It is probable that the tasks of, shovelling and sweeping, the dragging of hoses could be accommodated but the handling of fallen or misaligned cathode cannot be reasonably accommodated for the same reason detailed above.
Crane operation
[151] The Applicant is able to perform this task unrestricted.
Are the accommodations reasonable?
[152] Having reviewed each of the tasks of a machine equipment operator I have concluded that the Respondent had a sound basis on which to conclude that the accommodations required for the Applicant to safely carry out the role of cell attendant, operating the anode scrap machine, making and putting on straps were unreasonable. Further, while some accommodations for the functions of operating the cathode stripping machine and anode prep machine were reasonable, the Respondent again had a sound basis to conclude that other aspects could not be reasonably accommodated.
[153] Forklift operations and crane operations are tasks that the Applicant is capable of performing.
[154] The Respondent’s evidence was that the proposed restrictions went to the inherent duties required of the role, and would shift an undue burden onto other workers who would be required to perform duties the Applicant could not, including not being able to rotate the Applicant through various posts in accordance with normal practice and to reduce exposure of all employees to high hazard duties.
[155] In essence the modifications changed the job itself and were not mere modifications, easy to implement and monitor. In my view, the Respondent’s conclusion was a reasonable one on the facts available.
Was the termination of the Applicant’s employment harsh, unjust or unreasonable?
Legislation
[156] Having found that the Applicant was not able to perform the inherent requirements of his role, and that the necessary accommodations were not reasonable, it remains to be considered if the dismissal was none-the-less harsh, unjust or unreasonable.
[157] The Act states matters that must be taken into account in making that determination:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
(a) Valid reason
[158] There may be circumstances where the inability to perform the inherent requirements of a job may not provide a valid reason for the termination of employment. That is not the case here.
The Respondent formed a view on reasonable and substantiated grounds about the Applicant’s capacity to do the job, and the reasonableness of the accommodations. That is, Mr Dennien could not perform the inherent requirements of the job and that the accommodations required to do so were not reasonable.
[159] While it was discovered during the hearing that some information that the Respondent relied on was not correct, including the surgical procedure and reliance on a draft or incorrect job description, the substance of the Respondent’s decision was sound, defensible and well founded.
[160] Notwithstanding the errors, the totality of evidence from both the Applicant and the Respondent inexorably leads to a view that the Applicant could not safely perform the inherent requirements of his job, there being a risk of re-injury, and that the recommended accommodations were not reasonable. A decision to terminate on this basis is both defensible and well-founded on the evidence.
[161] I am satisfied that the termination was for a valid reason.
(b) Notice
[162] The Applicant was advised of the reason on 15 June 2015 by way of a letter which explained the basis for his dismissal.
(c) Opportunity to respond
[163] The Respondent gave the Applicant significant opportunities to respond to its reasoning about his capacity from September 2014 through to 1 April 2015.
[164] In my view the Respondent considered the Applicant’s responses. Therefore the Applicant was given an opportunity to respond.
(d) Support person
[165] Mr Brand attended as a support person for the Applicant.
(e) Unsatisfactory performance
[166] This factor is not relevant.
(f) Size of enterprise
[167] This factor is not relevant
(h) Dedicated human resource management specialists or expertise
[168] This factor is not relevant.
(i) Any other relevant matters
[169] The Applicant was a long-standing employee of the Respondent. He understandably asserts this should be taken into consideration. The Respondent says another factor to be taken into account is that the Applicant was paid his salary and leave entitlements from April 2014 - June 2015. As a result he did not have to use his annual long service or sick leave during that period and was entitled to and received substantial leave payouts therefore upon termination.
[170] Being a long-standing employee does go to harshness of the termination, along with his capacity to obtain work at the same remuneration. In all the circumstances, notwithstanding the Applicant’s genuine desire to return to work with the Respondent, this does not outweigh the unreasonable burden on the Respondent as a result of the accommodations required to safely carry out his employment. I do note that while it does not necessarily affect harshness, the reimbursement payment of long service and sick leave did mean that Mr Dennien did leave his employment with a substantial payment.
[171] There was some consideration at hearing whether reasonable adjustment required the Respondent to consider alternative employment as required under the Disability Discrimination Act 1992 (Cth) (DDA).
[172] The Federal Court carefully considered the construction of the DDA, and the nature of reasonable adjustment, in Watts v Australian Postal Corporation (Watts)30. For the purposes of this case, the following salient points were made by Mortimer J:
(a) reasonable adjustment is "for” the person with the disability, not adjustment "to” the position the person occupies;31
(b) s. 21A of the DDA, which provides a defence on the basis of inherent requirements, "requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform in the workplace."32
(c) "if the employer makes (or were to make) all adjustments for the person that do not cause the employer unjustifiable hardship, and the disabled person cannot perform the inherent requirements of the particular work, only then does the s. 21A exception apply";33
(d) in exploring whether the worker must be able to undertake the work immediately on institution of reasonable adjustment, Her Honour observed: "allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the 'reasonable adjustments' made, subject in any given case to the unjustifiable hardship exception";34
(e) in considering the relevant comparator in Ms Watts' circumstances, Her Honour observed that the salient factor was her ability to "return to her position".35
[173] In my view, the DDA, construed with the benefit of Watts, seems to stand only if the reasonable adjustment is referrable to the worker's previous position. An employer might attempt to secure alternative employment as a matter of its policy, but on the strength of Mortimer J's observations and the reading she gives to the DDA, reasonable adjustment does not include a different position or duties altogether. In this case, having considered reasonable adjustment of the position/ tasks performed in his role as cell attendant the Respondent’s actions do not breach the DDA.
[174] In all of the circumstances I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable.
[175] The application is dismissed.
COMMISSIONER
Appearances:
Mr AJ Hockings from Purcell Taylor Lawyers on behalf of the Applicant.
Mr JE Murdoch of counsel for the Respondent.
Hearing details:
2016.
Townsville:
20 January and 21 January.
Brisbane:
9 May.
Final written submissions:
Applicant, 24 February and 29 March 2016.
Respondent, 15 March 2016.
1 affidavit of Guy Dennien paragraph 16
2 applicant submissions paragraph 13
3 affidavit of Guy Dennien paragraph 12-13
4 affidavit of Guy Dennien - exhibit GD3
5 PN2201 and following
6 applicant submissions dated 12 November 2015 at paragraph 35-36
7 At PN2092
8 affidavit of Guy Dennien - exhibit GD3
9 Exhibit 3
10 PN641
11 Report of Dr Burke, 12 September 2015, exhibit NJB-7
12 PN1442
13 PN1444-PN1445
14 PN1450
15 PN1462
16 Transcript dated 20 January 2016 at PN1466.
17 PN1311
18 PN1330
19 195 IR 292.
20 (1998) 193 CLR 280.
21 (1998) 193 CLR 280, 304.
22 195 IR 292, 288-9.
23 J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292 [22].
24 Rode v Burwood Mitsubishi Print R4471 [19]
25 PR953449 [2004] AIRC 1141, permission to appeal refused: PR956925. See also Shortland v Smiths Snackfood Co [2011] FWAFB 2303; Hobbs v Capricorn Coal Management Pty Ltd - PR903643 [2001] AIRC 408 at [28]
26 at [32]
27 affidavit of Shari Barwick annexure 22
28 affidavit of Les Brand paragraph [6]
29 affidavit of Addie Jones exhibit AJ3 at p 13
30 [2014] FCA 370
31 Ibid at paragraph 23
32 Ibid at paragraph 45
33 Ibid at paragraph 54
34 Ibid at paragraph 55- 57
35 Ibid at paragraph 252-255
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