Harvey Lawrence v Camberwell Coal Pty Ltd
[2012] FWA 6491
•3 AUGUST 2012
Note: An appeal pursuant to s.604 (C2012/4989) was lodged against this decision - refer to Full Bench decision dated 15 October 2012 [[2012] FWAFB 8800] for result of appeal.
[2012] FWA 6491 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harvey Lawrence
v
Camberwell Coal Pty Ltd
(U2012/99)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 3 AUGUST 2012 |
Termination of employment - arbitration - long term injury - stood down with pay for 29 months - clinical assessment of medical restrictions result in inability to perform inherent requirements of job - dismissal upheld.
FACTUAL BACKGROUND
[1] Mr Harvey John Lawrence (the Applicant) was employed as a permanent production mining technician by Integra Coal (the Employer) at the Camberwell Open Cut Coal Mine in the NSW Hunter Valley from July 1991 to the termination of that employment on 18 January 2012.
[2] Mr Lawrence suffered an injury to his neck which he deposed troubled him for twelve months prior to reporting it to the Employer on 21 December 2000. The nature of his injury is described as muscle strain causing pain and discomfort when required to look over his right shoulder, which is exacerbated by driving a dozer, particularly when undertaking the ripping function.
[3] Mr Lawrence attended a general practitioner, Dr Ellen Berger, on 22 December 2000, who issued a certificate 1 prescribing physiotherapy, rest and anti-inflammatory medication and indicated that he should avoid dozer and grader operations as well as avoiding neck rotation whilst working.
[4] Mr Lawrence did not take any time off work, however, requested his supervisor to allocate work so that he was not required to operate a dozer undertaking the ripping function.
[5] Mr Lawrence sought medical advice on a regular basis, providing NSW Workcover Medical Certificates issued by Dr Berger to the Employer dated 29 December 2000 and 5 January 2001 2; then by Dr D Sanders dated 19 January 2001, 4 March 2002, 17 June 2002, 21 August 2002 and 29 November 20023.
[6] Mr Lawrence deposed that he sought physiotherapy firstly from Atlas Physio, then from JCB Health at the suggestion of the Employer.
[7] A Case Closure Report issued by JCB Health on 29 April 2002 4 stated that the return to work status for Mr Lawrence was “full duties”, noting that:
“Harvey is still suffering from intermittent neck pain while operating a dozer, however he has developed excellent self-management strategies to cope with his injury.
He is continuing with a home exercise and stretching program. Referral is required for any further treatments.”
[8] On 10 December 2002 Coal Mines Insurance referred Mr Lawrence to a rehabilitation provider, Ms Helen Rowbotham, for initial assessment and development of a return to work plan.
[9] Ms Rowbotham met with Mr Lawrence and Mr Keith Googe, the Employer’s Human Resources Manager, at the mine on 16 December 2002 and a Rehabilitation Management Plan 5 was established following consideration of the duties undertaken by Mr Lawrence and those duties which were available to him.
[10] Mr Lawrence’s evidence is that Ms Rowbotham suggested that:
“my duties should be changed from what were my existing normal duties which were truck, dozer, excavator and loader to that of truck and excavator operator” 6
[11] The Rehabilitation Plan states the following under the heading “Proposed New Duties”:
- Truck operation
- Excavator operation
- Possible drill operation following appropriate training
“In discussion with employer representative Keith Googe and Mr Lawrence on 16/12/02, rehabilitation goals were discussed and it was agreed that Mr Lawrence would upgrade to “normal duties” as a Plant Operator including the following skills:
Operation of Dozer, Grader and loader are not rehabilitation requirements as discussed and agreed to by Mr Lawrence and his employer on 16/12/02.” 7
[12] Mr Lawrence deposed that he requested he be given another operating skill at the mine to increase the equipment he could operate.
[13] The change in duties was agreed and the possibility that Mr Lawrence could become a drill operator was considered. Mr Lawrence never became a drill operator.
[14] In February 2003 a new Return To Work Plan 8 was developed which allowed for Mr Lawrence to operate a dozer on mine rehabilitation work, a process which did not require him to turn his head whilst operating.
[15] A final review of the rehabilitation plan took place in April 2003 by Ms Rowbotham, Mr Chris Nolan, Safety and Training Co-ordinator, and Mr Lawrence. Mr Lawrence’s evidence is that all agreed that it was unlikely he would be medically fit to upgrade toward all pre-injury duties of dozer, grader, loader, truck and excavator; and that he would continue to work as a truck and excavator operator and, “in all likelihood pick up a drill skill” 9.
[16] Mr Lawrence’s evidence is that at this meeting Mr Nolan said:
“Bill Archer (then Mine Manager) was meant to be at the meeting but he could not make it. He wanted me to say that he was of the view that as long as Harvey could drive a truck, there was always a job here for him.” 10
[17] The Case Closure Report issued by Ms Rowbotham on 14 April 2003 states:
“Mr. Lawrence unfortunately has been unable to upgrade his duties as he has been advised medically to avoid any work, which involves head rotation, particularly to the right side. Operation of a dozer, grader and loader are therefore to be avoided.
On the 28 February 2003 medical clearance was given enabling Mr. Lawrence to trial operation of a rehabilitation dozer (this dozer operates in isolation from other plant machinery, therefore reversing action can be performed using mirrors alone thus minimising rotation of the head). Unfortunately Mr. Lawrence has been unable to perform this duty, as the rehab dozer is currently only in operation on overtime shifts.
It is unlikely that Mr. Lawrence will be medically fit to-upgrade towards his goal of “pre-injury duties” in the near future. His employer has discussed training Mr. Lawrence in “drill operation”, however, this will not be conducted immediately. It is anticipated that once this training has been completed then Mr. Lawrence’s normal duties would then consist of operation of trucks, excavator’s and drills.
Mr Lawrence was last reviewed onsite on the 11/04/03 by Helen Rowbotham (O.T) and Chris Nolan (Safety, Training Co-ordinator). His employer is happy for Mr. Lawrence to remain performing his current duties of truck and excavator operation until drill training can be conducted and he will continue to be monitored onsite by Chris Nolan. No further occupational rehabilitation is indicated at this present time; therefore his file has been closed. Should Mr. Lawrence be medically cleared in the future to trial operation of alternative machinery in the pit then a re-referral for case management maybe appropriate.” 11
[18] Mr Lawrence continued to perform truck and excavator duties from that time, providing Workcover Medical Certificates by Dr Cash dated 30 May 2003 12; and by Dr Sanders dated 7 August 2003, 23 January 2004, 21 May 2004, 17 September 2004 and 13 January 200513.
[19] Mr Lawrence was subject to medical assessment by Dr Graham in January 2005 and Professor Oakeshott in March 2005 at the request of Coal Mines Insurance, which subsequently denied liability for injury to Mr Lawrence on the basis of an opinion by Dr Graham that there was no evidence of an ongoing effect from the incident of 21 December 2011; and the report of Professor Oakeshott that he could not identify any clinical evidence of injury or condition relating to Mr Lawrence’s neck, upper back or shoulders that could be related to the reported incident of 21 December 2000.
[20] Mr Lawrence continued to perform truck and excavator duties, providing Workcover Medical Certificates issued by Dr Sanders dated 11 April 2005, 8 July 2005, 6 October 2005, 3 February 2006, 3 August 2006, 15 January 2007, 28 June 2007, 28 December 2007, 25 June 2008, 10 December 2008 14.
[21] All of the Certificates were issued for varying periods of some months, with the exception of Annex HJL 25 which was issued on 11 April 2005 for the period 13 January to 13 April 2005. This is overlapped by the Certificate issued on 8 July 2005 (Annex HJL 26) for the period 8 January 2005 to 8 October 2005. All of the Certificates referred to the date of injury as 21 December 2000; stating that Mr Lawrence was driving a dozer and sprained his neck. The diagnosis is Chronic Neck Pain Arising from Lower Cervical Segment. The certificates carry the opinion that the worker’s employment is a substantial contributing factor to this injury and identify a management plan, i.e. “he is to avoid neck rotation while operating machinery”. The Certificates declare Mr Lawrence fit to perform selected duties for 8.5 hours per day five days per week: “only to drive trucks and excavators”.
[22] Mr Lawrence’s evidence is that in early January 2009 the then Mine Manager, Mr Barry Watt, questioned the certificate dated 10 December 2008 on the basis of the Coal Mines Insurance conclusion of 7 April 2005 founded on the reports of Dr Graham and Professor Oakeshott (see para 14 above).
[23] Mr Lawrence deposed that Mr Watt told him that the Employer required a resolution to the question of whether there was a work related injury or not and requested that he further consult his treating doctor or his lawyers to sort it out.
[24] Mr Lawrence did neither. He continued to attend work and perform the functions of truck and excavator operator.
[25] Mr Lawrence next consulted Dr Sanders on 1 June 2009, who issued a Workcover Medical Certificate 15 dated that day in the same terms as previous certificates. This was provided to the employer on 30 June 2009.
[26] On Friday 3 July 2009 Mr Lawrence was advised by Mr Watt that the medical certificate provided insufficient information in that the reference to “avoid neck rotation” was inadequate. In a further meeting on 6 July 2009 Mr Lawrence was informed that the medical certificate should specify the extent of neck rotation he was capable of in percentage or degree. Mr Lawrence was then placed on light duties in the storeroom pending a certificate providing the required details.
[27] A Workcover Medical Certificate was issued by Dr Sanders on 17 July 2009 with additional information in the following terms 16:
2. MEDICAL CERTIFICATION
Diagnosis: Chronic neck pain arising from lower cervical segment
In my opinion, the worker’s employment is a substantial contributing factor to this injury: x Yes [ ] No [ ] Unknown
Management Plan: He is to avoid neck rotation past 45 degrees. He is to avoid repeated neck rotation and sustained neck rotation past 30 degrees to the right while operating machinery at work. But he is to be assessed by the Occupational Therapist at the Joint Coal Board to define what he can and can’t do at work.
3. FITNESS FOR WORK: The Worker:
* Is fit for suitable duties from 1st June 2009 to 1st December 2009
An assessment of workplace duties is not required.
The worker has the following capabilities for 8.5 hrs / day 7 days/week
Other: Only to drive trucks and excavators. Driving trucks he is to avoid blind side loading for long period which requires him to repeatedly look at the right off side mirror. No limitations on his use of an excavator.
Fitness for work will be reviewed on: 30th November 2009
[28] Dr Sanders referred Mr Lawrence to Coal Services Health for assessment. Mr Lawrence made arrangements for a physiotherapist, Ms Diane Johnson, who provided a report on her assessment of Mr Lawrence on 10 August 2009 17. Ms Johnson noted that Mr Lawrence was very co-operative and motivated, reporting as follows:
“From the information in the objective examination above, Mr Lawrence is noted to have average cervical spine range of motion. He is able to turn to both the left and right with the equal distance from his chin to his acromion, indicating that blind spots and mirror movements do not aggravate his neck. There is a significant difference in his ability to sustain a cervical rotation to the right for a period greater than 17 seconds.
Work Status: Mr Lawrence has remained at work since the injury and does not endure a flare-up in his neck pain during or after his shifts.
Current Functional Status: Mr Lawrence reports being able to do all tasks as an Operator with a restriction of prolonged rotation to the right, which eliminates him from ripping in a dozer. He is able to use his mirrors when reversing in a truck which he has demonstrated over the past 9 years to not be aggravating.
Recommendations for future intervention:
Mr Lawrence has been able to manage his pain while at work for roughly 9 years, provided he does not rip while operating a dozer. It is my opinion that if Mr Lawrence continues to operate machinery which does not required prolonged right neck rotation he will not exacerbate his cervical injury. Machinery including trucks, excavators and drills (where you operate looking to the left) have not been an irritation to his cervical spine in the past and are unlike to exacerbate his injury now.
I would recommend a work site assessment for Mr Lawrence in order to determine his accurate functional capabilities and restrictions. This assessment will allow him the ability to demonstrate his capabilities on various machines and surfaces.”
[29] Mr Lawrence continued on light duties in the storeroom until 17 August 2009 when he was informed by correspondence from Mr M Gallegos, Operations Manager of the Employer, that he was required to attend an appointment with Professor Michael Fearnside on 29 September 2009 and was stood down on full pay 18.
[30] Mr Lawrence remained stood down on full pay for the next 29 months until the termination of his employment on 18 January 2012.
The Events from Stand Down on Full Pay on 29 September 2009
[31] Mr Lawrence underwent a medical assessment by Professor Oakeshott on 28 January 2010 at the request of Coal Mines Insurance.
[32] Mr Lawrence provided the Employer with a WorkCover Medical Certificate issued by Dr Sanders on 2 December 2009 19, certifying him fit for suitable duties (in the same terms as the certificate of July 2009) from 1 December 2009 to 1 June 2010.
[33] Mr Lawrence deposed that on 18 February 2010 he was informed by management that Dr Fearnside reported that he had an injury and that there were restrictions on his ability to work and that Professor Oakeshott’s report said that he had no injury and was fine to return to work.
[34] Mr Lawrence requested he be allowed to return to work in accordance with the restrictions detailed by his treating general practitioner, Dr Sanders, putting that he had successfully managed the injury for the past nine years. His request was declined by management in preference to a further examination by Professor Fearnside with the benefit of the report from Professor Oakeshott.
[35] Professor Fearnside is a neurological surgeon. His report, dated 29 September 2009 20, states:
“2. Present Condition
2.1 At the present time, he is not working and is on full pay. He saidthat he was managing his 600 acre farm where he ran beef cattle: He did no cropping nor sheep raising.
2.2 He had some discomfort in the left lower partof his neck on looking toward the right. Otherwise, neck pain was not present. For example, he was able to lift furniture and do the work on his farm without much in the way of difficulty. However, if he operated a tractor and slasher, looking to the right and down he would experience the neck pain again. He had a loss of range of movement of his neck toward the right. When he drove into Singleton, many of the Intersections were at acute angles and he needed to look to the right. He was not able to do so without pain and tended to rotate his trunk.
2.3 There were no symptoms in his upper limbs, radicular pain or neurological symptoms.
2.4 He was having no specific treatment nor did he take any medications.
2.5 When not working and now at home, he was independent in activities of daily living. He was able to do the fencing, painting and the like. As indicated above, he had a tractor and he had experienced some pain when he was reversing it, looking to the right, reproducing his right lower neck pain. He had installed a rear looking camera on his tractor to help him reverse and this had been beneficial.
…. …
7. Opinion
7.1 Mr Lawrence’s diagnosis is not clear at this time. It is recommended that further investigations be undertaken and I suggest that he have an MRI scan of his neck andbrachial plexus to see whether there is a scalene band present. The plain X-rays of his lumbar spine do not describe a cervical rib and none was palpable. His pain is mechanical and not strictly typical of a cervical spine condition.
7.2 Originally, the injury arose in the course of employment. When he ceased operating the plant which required him to look to the right over his shoulder and depress his head, his symptoms resolved. It seems likely that were he to return to operating dozers, graders and loaders where those movements are required for prolonged periods of time, his symptoms will recur. Therefore, although the aggravations are temporary and resolve with time, when he is exposed to normal duties, symptoms recur.
7.3 As a result, Mr Lawrence is not fit for pre-injury duties. He is fit to work four hours. It seems likely that were he to return to full pre-injury duties, symptoms would recur.
7.4 The restrictions which have been placed upon Mr Lawrence by Dr Sanders are not unreasonable because these are the duties which result in recurrence of his neck pain.He is therefore not fit to perform the job as mining technician as stated if this involves operating all the items of plant.
7.5 As indicated, I recommend that he have further investigations because his present X-rays are now eight years old and were simply plain X-rays. An MRI scan of the neck and supraclavicular regions would provide much more information.
7.6 There are no other factors I was able to identify which impact upon his capacity to work. He presented in a straightforward sort of way and seemed well motivated to continue work. However, he said that were he to be instructed to return to driving dozers and graders, he felt that he would not be able to continue in the industry.
7.7 With regard to the suitable alternate duties, in my opinion there is no reason Mr Lawrence should not continue to operate trucks and excavators. The only restrictions upon him would be that he should not be required to sit for prolonged periods of time with his head rotated to the right and looking downwards. He said that when he was able to look straight ahead, he was perfectly able to operate items of plant without any symptoms.
[36] Professor Fearnside provided a further report dated 29 October 2009 21 which states:
1. By way of background, Harvey Lawrence experienced increasingly frequent and severe neck pain in 2000 while he was working as a plant operator, employed by Integra Coal at an open cut mine in Singleton. He was operating a dozer, ripping up ground and to do this, he needed to look over his right shoulder with his neck flexed and trunk rotated for prolonged periods of time, often several hours. Other work included driving a truck where rotation of the neck was less extreme. Over the years he continued to experience neck pain, saw his general practitioner, had physiotherapy and worked on various duties all of the time until 2009 when he was not able to return to full pre-injury duties.
2. His nominated treating doctor, Dr Sanders provided a management plan which prohibited Mr Lawrence rotating his neck past 45o and he was to avoid repeated or sustained neck rotation past 30o while he was operating machiner. He was only to drive trucks and excavators. When driving trucks he was to avoid blind side loading which required him to look repeatedly in the right offside mirror.
3. As a result of these restrictions, Mr Lawrence is essentially unable to work.
4. Annexed to your email, there is a position description for a truck operator (7/11/08). When driving a truck, the operator sits in an ergonomic fully adjustable seat. A seat belt is worn. There is regular lever operation - gear stick on the right side and dump handle on the left side of the seat. The driver rotates the trunk and neck to visualize reversing. The driver is exposed to continuous rolling type movement with intermittent jerking, depending on road conditions and the load. Walking over uneven surfaces, exposure to vibration, exposure to impact when heavy loads are placed in the tray and occasionally walking around the cab to clean windows is also necessary. The task duration is up to five hours. Manual task requirements are lifting 10kg.
5. With regard to a diagnosis, I have not seen any up to date X-rays or neuroradiological investigations of Mr Lawrence’s neck. It was for this reason I was unable to provide a diagnosis. The only radiology which was available were X-rays of the cervical spine dated 14/5/01 which showed mild disc space narrowing at C5/6 and some minimal facet joint arthrosis in the mild cervical region. Up to date X-rays were recommended, ideally an MRI scan of the neck (Paragraph 6.7) which would provide more detailed information and permit a diagnosis.
6. As indicated in the report, in my opinion (and having considered the truck statement of duties) there is no reason why Mr Lawrence should not operate trucks and excavators. My concerns regarding the operation of dozers is that to rip, as I understand the procedure, the operator sits with the trunk and neck rotated, looking 1800 or more across the right or left shoulder for prolonged periods of time because the ripper is behind the dozer. It was this particular activity which seemed to aggravate Mr Lawrence’s condition. Having considered the job duties of a truck driver, I see no reason to prevent him form trialling that work. Mr Lawrence could look to the right and to the left for 900 and I imagine this is what is necessary for operating a truck, occasionally looking over his shoulder but not for prolonged periods of time. I assume that reversing or loading the rear tray of the truck could be managed using mirrors.
[37] Mr Lawrence’s evidence is that he heard nothing more until mid May 2010 when he was told that Professor Fearnside required an MRI scan. Further examination by Dr Fearnside was not conducted.
[38] Arrangements were made for a CAT scan by Mr Lawrence at his own initiative and expense, which took place on 19 May 2010, and the results provided to his Employer.
[39] Mr Lawrence provided a further WorkCover Medical Certificate issued by Dr Sanders on 4 June 2010 22, certifying him fit for the same suitable duties as the July 2009 and December 2009 Certificates, for the period 1 June 2010 to 1 December 2010.
[40] Mr Lawrence’s evidence is that he heard no more concerning his return to work. In around middle to late August 2010 he went to the mine to enquire and discovered that there had been a change in management personnel and that a Mr Tyrone Peck was now the relevant management representative.
[41] Mr Lawrence deposed that Mr Peck informed him that he knew nothing of his case or any arrangements for an examination by Dr Fearnside.
[42] Mr Lawrence deposed that Mr Peck telephoned him on 16 September 2010 and informed him that he could not find anyone at the mine who knew anything about his case and that he was going away and would contact Mr Lawrence in November 2010.
[43] Mr Lawrence deposed that he received no contact from the Employer until 1 December 2010 when he attended the mine and provided a Workcover medical certificate issued by Dr Sanders dated 29 November 2010. 23 This certificate certified Mr Lawrence fit for suitable duties in the same terms as the preceding certificate for the period 1 December 2010 to 1 June 2011.
[44] Mr Lawrence gave this certificate to Mr Peck who apologised for not contacting him and advised that someone from the Employer would get back to him. Mr Lawrence deposed that there was no response from the Employer.
[45] Mr Lawrence next attended the mine on 1 June 2011 to deliver a further Workcover medical certificate issued by Dr Sanders on 23 May 2011 for the period 1 June 2011 to 1 December 2011 24. He spoke with Mr McWilliams, however, Mr Peck was not available and he left the medical certificate on Mr Peck’s desk as he was requested.
[46] On 6 June 2011 Mr Lawrence received correspondence from the Employer 25 informing him of consideration of termination of his employment due to his inability to perform the inherent requirements of the job as a mining technician at Integra Coal Open Cut Operations and the unavailability of suitable alternative duties; and inviting him to attend a meeting arranged for 15 June 2011.
[47] Mr Lawrence agreed to attend but was ultimately unable to as he was flood bound on his property. His evidence is that this was accepted by the Employer who undertook to arrange a further meeting. No such arrangements were ever made.
[48] On 30 November 2011 Mr Lawrence attended the mine site to deliver a Workcover Medical Certificate issued by Dr Sanders dated 23 November 2011 26 certifying his fitness for suitable duties as described for the period 23 November 2011 to 23 May 2012, to discover that Mr Peck no longer worked at the Open Cut operations. He gave the certificate to an officer in the Safety Department who informed him it would be passed on to Mr Peck’s replacement.
[49] Mr Lawrence’s evidence is that he heard nothing more until 3 January 2012 when he was informed that a meeting concerning his employment was arranged for the following day, 4 January 2012.
[50] Mr Lawrence attended the meeting with Mr Shane Thompson, Construction, Forestry, Mining and Energy Union (CFMEU) District Vice President, Mr McWilliams, Ms Peck and another person whom he could not identify whom he believed was a newly appointed Human Resources Officer.
[51] Mr Lawrence’s evidence is that he was asked if he had any new information concerning his injury that should be taken into account in consideration of the termination of his employment. Mr Lawrence, supported by Mr Thompson and Mr McWilliams, expressed his ability to continue to operate a truck and excavator as certified by Dr Sanders.
[52] Mr Lawrence deposed that he was not provided a copy of Professor Fearnside’s report, however, put that what he knew of the report was that Professor Fearnside did not say Mr Lawrence was unfit for work, and had requested a trial.
[53] The Employer declined to participate in a trial or allow Coal Services Health to undertake a capability and functional assessment of Mr Lawrence. He was informed that a functional assessment had been undertaken by ETHOS Health.
[54] Mr Lawrence deposed that he was offered six months pay plus five weeks pay in lieu of notice to resign rather than be dismissed, which he declined; insisting that the Employer had not followed the required injury management procedures and should do so and that there were employees at the mine who only operated trucks.
[55] Mr Lawrence’s employment was terminated on 18 June 2012.
[56] Mr Lawrence’s evidence is that since the termination of his employment he has sought other work, resulting in a contractor, TESA, sending him to Coal Services Health for a pre-employment medical assessment which he deposed with full knowledge of the nature of his injury, passed him fit to operate a truck.
[57] Mr Lawrence put that he regarded the principle obstacle to him obtaining work was the inability to explain why he had been off work for 29 months.
[58] Mr Endacott brought evidence from Mr Jeremy McWilliams who has been employed by the Respondent for 17 years. Mr McWilliams is a Mining Technician under the terms of the industrial agreement and from time to time works as an Open Cut Examiner as needs arise. Mr McWilliams is Chairman of the site OH&S Committee.
[59] The evidence of Mr McWilliams 27 supported that of Mr Lawrence in respect to his personal circumstances; and provided information in respect to the engagement of trainees and contractors who are not required to hold five operational skills. This evidence is not challenged, however, they are classifications not relevant to Mr Lawrence who is employed as a Mining Technician.
[60] In cross examination by Mr Sebbens Mr McWilliams conceded that Mr Betts has a duty to the health and safety of employees and hold a responsibility to make a decision on the information available to him.
[61] Mr McWilliams put that he could not see how a General Manager of a coal mine knows better than a doctor or professor in respect to the conduct of a functional assessment of Mr Lawrence 28.
[62] In the course of cross examination Mr Sebbens, with the assistance of a number of photographs of a truck cabin 29 and excavator cabin30, questioned Mr Lawrence closely in respect to the neck rotation required when operating a truck and excavator.
[63] Mr Lawrence was not able to assist in determining the extent of neck rotation required to achieve the visibility necessary to safely operate the equipment.
[64] Mr Sebbens established that neck rotation in excess of the restrictions imposed by Dr Sanders, that Mr Lawrence “avoid neck rotation past 45 degrees”; and “avoid repeated neck rotation past 30 degrees to the right”, is required to safely operate a truck.
[65] The following exchange between Mr Sebbens and Mr Lawrence is recorded in transcript of 14 May 2012:
“And half way between those would be 45. You accept that, don’t you?---Yes.
To be able to see that far off-side mirror, you have to turn at least that half-way point, don’t you?---About half way, probably. Yes.
Now, to look at the mirror on the right-hand side - and if we go to - perhaps photo 2 is the easiest to give an overall explanation - if you’re seated in the operator’s seat, to look at that driver’s-side mirror - the left-hand side mirror - you would need to turn and look at it to move past the pillar that’s blocking your field of view. You would need to turn approximately 30 degrees or a third of the way around the full right angle to be able to see that mirror, wouldn’t you?---Yes.
To be able to then see beyond that mirror, to see other things in front of you, but on the front left-hand side and beyond that aren’t captured in the field of view of your mirror - so those things in front of you and to the left - you need to turn beyond the 30 to see past the mirror and up to 45, all the way around to 90, don’t you?---Yes, I can do that.
If you were going to check through the back left-hand side window, you need to turn beyond the 90 and you’d probably be then turning your body to look past the 90 degrees?---Yes, I do that. 31
... ...
If you can turn to photograph 15 - and again the contrast is a bit unfortunate, but you can see that the operator there is turning his head to the left, essentially to look out the window or to look at the mirror. You can see the light vehicle that we saw in one of the earlier photographs - photographs 3 and 4 - and he has got his neck turned to - it would approximately be between somewhere between 30 to 45 degrees. Do you see that?---I see it, yes. 32
... ...
And to look out the side window to see things such as - we saw an example, a light vehicle which is either down in the ground or some other things off in the distance - you would need to turn beyond the 30 degrees past the mirror up to 90 degrees to look out that window, wouldn’t you?---Yes, I can do that. 33“
[66] Mr Lawrence maintains that he can do what his doctor says he must not, which in large measure casts doubt upon the evidence that, with full knowledge of his injury, Coal Services Health passed him fit to drive a truck. There is no direct evidence of the information available to Coal Services Health or from the potential employer, TESA. Mr Lawrence was not employed by TESA.
[67] This evidence also established that if Mr Lawrence were to operate a truck or excavator with his medical restrictions there is an unacceptable risk to others.
[68] This conclusion is consistent with the medical opinions expressed in Dr Grahame’s report, put to Mr Lawrence by Mr Sebbens in cross examination:
“You see in respect of work capacity - and this is effectively right in the middle of the page, under the heading, “Work capacity” - Dr Graham writes, “Mr Lawrence has an underlying medical disorder which becomes symptomatic when he is exposed to various types of work activities. Whilst he is a very physically fit man, it is probably reasonable to keep him away from those activities that bring on symptoms. He is, however, quite capable of working in full-time employment in appropriate roles. This would include normal overtime responsibilities as long as the roles were slightly limited.” Do you read that he writes that there?---Yes. 34
... ...
Then he goes on to write, “He added that for the past five months, while he has not been working, his neck has been great except for periods of prolonged driving. For example, when driving into town, he gets a slight soreness in the spot on the right side of his lower neck as described above, but this settles down very quickly. When he last drove to Sydney some months ago, this soreness lasted for several days before it disappeared.” Do you read that there?---That’s correct. 35“
[69] Mr Sebbens brought evidence from Mr Andrew Betts, General Manager of Integra Coal, who provided a Statement of evidence 36.
[70] In further oral testimony Mr Betts confirmed that he declined the requests for a functional assessment of Mr Lawrence due to the risks to Mr Lawrence operating equipment on site.
[71] Mr Betts further confirmed that the opinion of Professor Fearnside that Mr Lawrence’s condition had stabilised and would not get any better, eliminated Mr Lawrence as a candidate for rehabilitation to full duties.
[72] In cross examination by Mr Endacott Mr Betts confirmed that reports by Professor Ghabrial and Professor Fearnside and the certificates of Dr Sanders led him to the conclusion that if Mr Lawrence went back to work and operated the truck or excavator it could further aggravate his injury.
[73] Mr Sebbens brought evidence from Mr Michael Lawrence who deposed that he has 26 years experience in the mining industry, commencing as a plant operator with skills in truck, excavator, loader, dozer, grader, water and service carts. Mr Michael Lawrence progressed through a range of functional positions at various mines in Western Australia, Queensland and the Hunter Valley.
[74] At the time of giving evidence Mr Michael Lawrence was the Mining Superintendent at the Camberwell mine, a position otherwise regarded as the Mine Manger pursuant to the Coal Mine Health and Safety Act 2002 No 129. He confirmed that he held the statutory responsibility for safety at the mine.
[75] With the assistance of photographs tendered by Mr Sebbens 37 Mr Michael Lawrence described various operational functions, confirming that an operator would be required to function in excess of the limits imposed upon Mr Harvey Lawrence by Dr Sanders.
[76] Mr Michael Lawrence described the operational practice of work allocation of mining technicians, emphasising the need for them to be skilled across a number of plant items. He deposed that it was not practical or efficient for management to be limited to allocation of a technician to only one or two items of plant.
[77] The distinction is made between Mining Technicians employed by Integra Coal who are required to be able to operate a range of equipment, and contract labour who may be engaged for a single purpose or task which could require the capacity to operate only one item of plant.
[78] Mr Michael Lawrence deposed that he had not met the Applicant nor observed him operate equipment. He deposed that he formed the view that the Applicant could not operate a truck or excavator safely on the basis of the restrictions imposed by Dr Sanders. He conceded that if this information was wrong his assessment was not soundly based. . He confirmed that he did not ask to see a functional assessment report, however, was of the view that this had been done as it had been recommended by Dr Sanders.
[79] Mr Michael Lawrence conceded that he should have looked at all of the medical reports prior to forming his view of the incapacity of the Applicant to operate equipment safely. In re-examination he confirmed that having now seen the report of Professor Fearnside he remains of the view that, having regard to the Applicant’s injuries, it would be very hard for him to operate the required items of plant.
[80] Mr Sebbens relied upon a report by Professor Ghabrial of Hunter New England Health Service dated 1 April 2009 38 which gives the following opinion:
“Mr Lawrence sustained an injury to his neck at work on the 21st December 2000 with subsequent aggravations to his neck during the course of his employment in the mines.
Clinical assessment and investigations suggested injuries to the right lower facet joints of his neck and indeed the x-rays performed in May 2001 showed changes in the facets at the C4/5 and C6/7 segments with some narrowing of the C5/6 disc and minimal changes at that level.
He is back at work performing his duties and avoiding aggravating activities as much as he can.
From the history given to me by Mr Lawrence, I believe that his employment is considered to be a substantial contributing factor to the present clinical features, disabilities and impairment.
I believe that his condition has stabilised for the purpose of assessment of permanent impairment.
I have read Schedule 7 of the Uniform Civil Procedure Rules 2005 for expert witnesses and agree to be bound by it. My report complies with the provision of that code.”
[81] In a further letter to Slater and Gordon solicitors dated 1 April 2009 Professor Ghabrial adds that the permanent impairment to Mr Lawrence’s neck is assessed at 25%.
[82] The capacity, or lack thereof, of Mr Lawrence to safely undertake the duties of truck driving and excavator operation were assessed by management using the medical restrictions imposed by Dr Sanders against a functional assessment of the activities required of any and all operators of this equipment, undertaken for the Respondent by ETHOS Health.
[83] A position report for a truck, prepared by ETHOS Health, states in part 39:
9. Worker regularly rotates trunk and neck, sometimes up to full neck rotation, to safely sight and to visualise while reversing.
10. Worker is exposed to continuous rolling type movement with intermittent jerking depending on road conditions and load.
12. Worker is exposed to attenuated levels of vibration - managed by correct adjustment of seating.
13. Worker may be exposed to impact when heavy loads are placed into the tray from loader /shovel /excavator notably if operating in large fragmentation areas. Worker may be required to exit the vehicle during extra heavy loads.
14. Worker may have to occasionally walk around cab to clean windows and reach through handrails to clean mirrors.
15. Worker may be required to assist other manual operations inside pit bottom such as cable handling.
[84] A position report for an excavator, prepared by ETHOS Health, states in part 40:
5. Worker sits in fully adjustable ergonomic seat (adjustable to controls and arm supports enabling operator to set up in neutral anatomical positions to minimise impact of prolonged postures and exposure to vibration)
6. Worker operates with bilateral joy sticks and bilateral foot pedals; intermittent push buttons operations on control panels left and right side
7. Worker is exposed to continuous whole body vibration with intermittent jerking depending on mining conditions
8. Worker operates with visual field typically below 450
9. Worker may need to move around on the plant outside the cab to clean windows
10. Worker may be required to assist with maintenance tasks such as replacing bucket teeth (35kg)
11. Worker may be required to assist other manual operations inside pit bottom such as cable handling
Entitlement Under Workers Compensation Legislation
[85] It is put without argument that in the circumstance that Mr Lawrence had a compensable injury the Employer would be obliged to keep him in employment.
[86] The best that can be said of Mr Lawrence’s entitlement to workers compensation for the injury at the centre of these proceedings is that it is unresolved.
[87] I am informed that a claim was made, denied, withdrawn, and now re-agitated.
[88] Those are proceedings for another jurisdiction.
[89] Mr Endacott submitted that I should determine whether Mr Lawrence has a compensable injury for the purpose of these proceedings in accordance with the decision of the NSW Court of Appeal in Spiers v Industrial Relations Commission of New South Wales. 41
[90] In Spiers the NSW Court of Appeal held that the Industrial Relations Commission of New South Wales (IRC) held and was obliged to exercise jurisdiction to determine whether Mr Spiers was entitled to compensation for his injuries for the purpose of considering whether to exercise its power to order reinstatement.
[91] Mr Spiers had been dismissed from his employment with Springvale Coal on the grounds of inability to perform the inherent requirements of his position; he subsequently made an application to the IRC pursuant to s 241 of the Workers Compensation Act for an order of reinstatement of an injured worker pursuant to s 242 of that Act.
[92] The task of the IRC was to determine whether Mr Spiers was an injured worker as defined in order to establish jurisdiction. A finding that Mr Spiers was not an injured worker would put him outside jurisdiction.
[93] This is not the case here. I do not need to determine what rights Mr Lawrence may or may not have to compensation to open a gateway to jurisdiction, and accordingly decline to do so.
The Job
[94] Mr Lawrence was employed as a Technician covered by the terms and conditions of employment of the Integra Coal Operations Open Cut Coal Mine Enterprise Agreement 2011 42 (the Agreement), which has a nominal expiry date of 5 April 2015.
[95] The relevant provisions of the Agreement are:
“6.6. Duties
Technicians shall perform such work as the Company shall from time to time reasonably require, including all work which they are trained and competent to perform or work which they are required to perform for the purposes of training as reasonably required to meet the needs of the business. A Technician not attending or not performing such work shall, except as otherwise provided, lose payment for the actual time of such non-attendance or non-performance.
The absence of a Technician from work for a continuous period exceeding three (3) consecutive working days withoutthe consent of the Company and without notification to the Company shall be evidence that the Technician has abandoned employment. The Company will make a reasonable attempt to contact a Technician prior to termination of his/her employment.
Termination of employment shall be from the last day of attendance or the last day for which consent of absence was granted.
This clause shall not affect the right of the Company to deduct payment for any day or portion thereof during which the Technician is stood down by the Company as a result of refusal of duty, neglect of duty, or misconduct on the part of the Technician; or to deduct payment for any day or portion thereof during which the Technician cannot be usefully employed in the class or grade of work in which the Technician is usually employed because of any strike or because of a breakdown of machinery. Provided that in the case of breakdowns of machinery at the Mine, deductions shall only be made in respect of days which occur after such breakdown has continued for more than four (4) consecutive working days inclusive of the day of the breakdown, if such day be a working day.
... ...
17. FLEXIBILITY
Whilst Technicians will be classified as either a Production or Engineering Technician, all Technicians will be able to work in any area, department or section of the Mine and will be able to undertake any task which they are trained and competent to perform or for the purposes of training.
It is recognised and agreed that during the course of day-to-day activities at the Mine, staff may utilise skills or competencies to supplement the work of Technicians.
The intention of this flexibility is to improve the overall efficiency and cost effectiveness of the Mine by the utilisation of staff to supplement the work of Technicians. It is not the intention of this clause to allocate staff in the role of Technicians for a full shift, or to reduce the requirement for Technicians to work overtime. Where staff requires training, this training will be carried out in a manner that is not detrimental to the training opportunities of Technicians.
Similarly, Technicians can be appointed to utilise skills or competencies to supplement the work of staff.
18. TRAINING AND DEVELOPMENT
All new Technicians will be provided with induction training.
All training will be competency based with clearly defined performance standards. Technicians will have to demonstrate capability against these standards as part of the training process and additional training will be given as required.
All Technicians will participate in Company organised training as directed by Management. This training will be designed to achieve a safe, productive, efficient and competitive operation and a workforce with an appropriate mix of skills.
Training priorities will be focused on the needs of the business. However, training preferences and equity in training opportunities will be taken into account prior to establishing training priorities in the Maintenance, CHPP and Mining areas. (Note: to the extent reasonably practicable, Mining Technicians will be required to obtain four (4) production skills; however the Company is not required to provide training in skills which it does not need because it has sufficient Technicians with such skills.)
Where required, all Technicians will assist in the provision of training.” 43
Production Skills
[96] It is not disputed that the production skills are:
(a) Excavator
(b) Truck
(c) Dozer
(d) Grader
(e) Loader
(f) Water cart
[97] Mr Lawrence was trained and assessed to operate five items of plant: excavator, truck dozer, grader and loader. Mr Lawrence put that he was also qualified on the water/service cart, resulting in him maintaining capability to operate the truck, grader, loader and water cart, which met the four production skill requirements of clause 18 of the Agreement.
[98] Mr Sebbens put that medical restrictions excluded Mr Lawrence from operating the loader, dozer and grader, leaving him with only the two production skills of truck and excavator.
[99] If I accept the argument that Mr Lawrence is qualified and unrestricted to operate the water/service cart, that leaves him with only three production skills.
[100] In addition to the medical restrictions preventing Mr Lawrence from operating the dozer, loader and grader, it is argued that Mr Lawrence is restricted in operation of a truck as he would be required to rotate his neck further and for longer periods than the specific restrictions of Dr Sanders.
SUBMISSIONS
[101] Mr Sebbens submitted that:
“e) The restrictions in the medical certificates, which were identified from August 2009, are directly contrary to the physical and inherent requirements for operating a truck and excavator. On the evidence, to operate these items of plant, a Technician needs to rotate his or her neck up to and beyond 45 degrees to:
(i) check out of the windows of these vehicles;
(ii) check blind spots; and
(iii) check side mirrors, especially when reversing or maneuvering;
for the purpose of performing the work required, and for checking the location of other items of plant, workers, and items within the pit, so as to safely interact with them.” 44
[102] Mr Sebbens relied upon the Decision in X v Commonwealth 45 and J Boag and Son Brewing Pty Ltd v Allan John Button46 to support the submission that inability to perform the inherent requirements of the position is a valid reason for termination of employment.
[103] In X v Commonwealth Gummow and Hayne JJ stated:
“ [102] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. ...[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.” 47
In Boag the Full Bench held:
“[22] When 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 be considered.” 48
[104] Mr Sebbens submitted that Mr Lawrence could not meet the inherent requirements of the position as:
● he could not satisfy cl 17 Flexibility of the Agreement as he could not undertake any task he was trained and competent to perform as he could not operate a dozer, grader, truck or excavator in the required manner without unacceptable risk of injury;
● he did not have four production skills as required by cl 18 Training and Development of the Agreement.
[105] The evidence supports Mr Sebbens’ submission and I find accordingly.
[106] I find that no reliance can be put on the assertion that a previous manager, Mr Archer, is reported to have committed to continued employment of Mr Lawrence so long as he could drive a truck. There is no evidence to support this undertaking and the ability of Mr Lawrence to drive a truck, having regard to the medical restrictions, is challenged.
[107] The argument that there was an agreement that Mr Lawrence’s normal duties became only that of truck and excavator driver during the course of his rehabilitation and arrangement of work is not sustainable.
[108] The arrangements to accommodate Mr Lawrence whilst he was under medical restriction do not alter the contract of employment or excuse him from his obligations pursuant to the enterprise agreement.
[109] The suggestions by Dr Sanders and Ms Johnson that Mr Lawrence be assessed by an occupational therapist are not binding upon the employer, and in my view negated by the evidence of Mr Harvey Lawrence that the symptoms would return if he were required to operate a dozer.
[110] The medical evidence may be regarded as contradictory when considering the views expressed by Dr Grahame and Professor Oakeshott in respect to the level of injury; and those put by Dr Sanders, Professor Fearnside and Professor Ghabrial, all of which impose a restriction on Mr Lawrence.
[111] Mr Lawrence’s evidence that he continues to suffer discomfort in his neck when driving supports a conclusion that the opinions of Dr Sanders and Professors Fearnside and Ghabrial are to be preferred.
[112] In the circumstances the employer is entitled to test the limitations imposed upon Mr Lawrence against the inherent requirements of the job by considering the requirements to operate the equipment, rather than rely upon a functional assessment of Mr Lawrence.
[113] The proper test is whether, having regard to the medical restrictions, Mr Lawrence can meet the requirements of a Mining Technician on an ongoing basis; not whether, in a functional assessment carried out at a particular time.
[114] Both Mr Lawrence and the employer find themselves in a difficult position, however, the restrictions placed upon Mr Lawrence by clinical assessments are those which must be accepted.
[115] Mr Lawrence continues to rely upon the restrictions imposed by Dr Sanders to avoid operating a dozer. When tested against the functional requirements of operating a truck and excavator, those same restrictions result in a conclusion that Mr Lawrence cannot safely operate this equipment.
[116] Mr Lawrence does not then hold the necessary four skills to meet the inherent requirements of Mining Technician pursuant to the industrial agreement.
[117] Comparison with a contractor or trainee, who are not required to hold four skills, is not available as the contract of employment of contractor and trainee is not the same as that of a Mining Technician.
[118] There is cause to be critical of the Employer for “forgetting” about Mr Lawrence for 29 months, however, this did not disadvantage Mr Lawrence in his capability to meet the obligations of his contract of employment, which is ultimately determined upon the weight of medical evidence.
[119] An argument that the Employer is a subsidiary of Vaile, a large international mining company which should have the economic ability to accommodate Mr Lawrence, misstates the criteria of S387(f). The issue in these proceedings is not the capacity of the Employer, but the capacity of Mr Lawrence to undertake his contract of employment safely.
[120] I find that the Employer has a valid reason for termination of Mr Lawrence’s employment and, all other factors considered, the termination of employment is not harsh, unreasonable or unjust.
[121] There is no basis for intervention.
[122] The matter is so concluded.
DEPUTY PRESIDENT
Appearances:
Mr K Endacott (Applicant)
Mr T Sebbens (Respondent)
Hearing details:
Newcastle
2012
May 14
May 15
1 Exhibit 1 (Statement of Harvey Lawrence) Annex HJL 2
2 Ex 1 Annex HJL 3 and 4
3 Ex 1 Annex HJL 5, 7, 9, 10 and 11
4 Ex 1 Annex HJL 8
5 Ex 1 Annex HJL 12
6 Ex 1 para 21
7 Ex 1 Annex HJL 12 p2
8 Ex 1 Annex HJL 16
9 Ex 1 para 26
10 Ex 1 para 26
11 Ex 1 Annex HJL 17 p2
12 Ex 1 Annex HJL 18
13 Ex 1 Annex HJL 19 to 23
14 Ex 1 Annex. HJL 25 to 34
15 Ex 1 Annex HJL 35
16 Ex 1 Annex. HJL 36
17 Ex 1 Annex HJL 37
18 Ex 1 Annex HJL 38
19 Ex 1 Annex HJL 39
20 Ex 11, Statement of Andrew Betts, at Tab 6
21 at Tab 7
22 Ex 1 Annex HJL 41
23 Ex 1 Annex HJL 42
24 Ex 1 Annex HJL 43
25 Ex 1 Annex HJL 44
26 Ex 1 Annex HJL 45
27 Exhibit 9
28 TR PN 657
29 Exhibit 4
30 Exhibit 5
31 PN304 to PN308
32 PN 333
33 PN 339
34 PN 166
35 PN 184
36 Exhibit 11
37 Exhibits 4 and 5
38 Exhibit 8
39 Exhibit 6
40 Exhibit 7
41 210 IR at 337
42 AE885862 PR509946
43 At pages 8, 24 and 25
44 Exhibit 17 Respondent’s Submissions at page 4
45 (1999) 200 CLR 177
46 [2010] FWAFB 4022
47 (1999) 200 CLR 177 at 208
48 [2010] FWAFB 4022 at 5
Printed by authority of the Commonwealth Government Printer
<Price code C, PR527350>
0