Kapil Arora v Kinetic (Melbourne) Pty Ltd - [2023] FWC 1125

[2023] FWC 1125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kapil Arora
v

Kinetic (Melbourne) Pty Ltd

(U2023/1710)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 11 MAY 2023

Unfair dismissal application – incapacity for work – application dismissed

Mr Kapil Arora has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). From February 2022 until February 2023, Mr Arora was employed as a bus driver by Kinetic (Melbourne) Pty Ltd (company), which operates a Melbourne bus service. Prior to his employment with the company, Mr Arora worked for the previous operator of the service. The company dismissed Mr Arora because it had concluded that he was unable to fulfil the inherent requirements of his role as a bus driver. Mr Arora acknowledges that he was not fit for duty but contends that his dismissal was unfair because his injury was work related and the company did not give him a reasonable opportunity to recover.

Section 396 of the Act requires the Commission to decide four preliminary matters before considering the merits of an application. In respect of those matters I have determined the following: the application was made within the 21-day period required by s 394(2); Mr Arora was a person protected from unfair dismissal; the Small Business Fair Dismissal Code was not applicable to the company; and the dismissal was not a case of genuine redundancy. I will proceed to consider the merits of the application.

The evidence

Mr Arora gave evidence that in 2016, while driving a bus, he was attacked by a group of youths. Mr Arora was very upset by the incident and was later diagnosed as having post-traumatic stress disorder. He also experienced neck pain. Mr Arora took time off work to recover from the incident. With the support of his family, he was gradually able to return to work. In 2017 Mr Arora was again assaulted at work, when a passenger spat at him. Mr Arora’s mental health deteriorated, and he was prescribed medication for anxiety. He took further time off work but later returned to normal duties.

Mr Arora said that in September or October 2022 he was feeling stressed again and asked to take time off work, but the company refused. Then on 18 November 2022, due to stress, he took the wrong bus and also followed the wrong bus route. He lost concentration and his neck started to hurt. For the safety of his passengers, Mr Arora pulled over and called the operations control centre (OCC). He was told to await further instructions. Passengers began asking him about the reason for the delay, which made him anxious. Some 15 minutes later the OCC told Mr Arora to proceed on the route, which he did. But now he was very stressed. He stopped the bus again and called the OCC, stating that his stress and neck pain were very bad. The operator asked if he needed an ambulance. Mr Arora said no. Eventually…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kapil Arora v Kinetic (Melbourne) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 1125
Decision Date: 11 MAY 2023

CaseChat Overview and Summary

Kapil Arora brought an application for an unfair dismissal remedy under the Fair Work Act 2009 against his former employer, Kinetic (Melbourne) Pty Ltd. Mr Arora, who was employed as a bus driver, was dismissed by the company on the basis that he was unable to fulfil the inherent requirements of his role due to incapacity for work. The primary dispute in the case was whether the dismissal was unfair, given that Mr Arora's incapacity was work-related.

The legal issues before the Fair Work Commission were whether the dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason for the dismissal related to Mr Arora's capacity or conduct. The Commission had to consider multiple medical reports and the employer's actions in determining the validity of the dismissal. The company argued that it had a substantiated reason to dismiss Mr Arora as he was unfit for duty, based on medical evidence. Mr Arora, on the other hand, contended that his dismissal was unfair as his incapacity was work-related, and the company had not given him a reasonable opportunity to recover.

The Fair Work Commission found that the dismissal was not unfair. The Deputy President concluded that Mr Arora was indeed unable to perform the inherent requirements of his job at the time of his dismissal. Although there were conflicting medical opinions, the report of Dr Altaf, which was based on an assessment of both physical and psychological fitness, concluded that Mr Arora was not fit for duty. Mr Arora had been absent from work for nearly three months, providing certificates of incapacity, and there was no medical evidence suggesting an imminent capacity for work. The company had provided Mr Arora with ample opportunity to respond to the concerns regarding his capacity for work. The Deputy President concluded that the company had acted reasonably in dismissing Mr Arora and that the dismissal was not harsh, unjust, or unreasonable.

The Fair Work Commission dismissed the application for unfair dismissal. The Deputy President did not consider that reinstatement or compensation would have been appropriate remedies, as Mr Arora had no capacity for work at the time of the dismissal, and there was no evidence of any efforts to mitigate loss by applying for other jobs.

Orders