Kapil Arora v Kinetic (Melbourne) Pty Ltd
[2023] FWC 1125
•11 MAY 2023
| [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 he returned to the depot. On the advice of his doctor, Mr Arora then took time off. As it transpired, he did not return to work at any time before his dismissal. Throughout the period of his absence, he provided the company a series of medical certificates issued by a Dr Kumarasinghe, each of which stated that he did not have capacity for work. Mr Arora did not have any accrued personal leave. He said that he was permitted to take annual leave for the first two weeks of his absence but was not permitted to take any further annual leave, which amounted to harassment.
Mr Arora said that in December 2022 he made a WorkCover claim, and that on 20 December 2022 he attended a medical examination with an orthopaedic surgeon, Dr Ghan, that had been arranged by the company’s insurers. Dr Ghan’s report noted that Mr Arora’s symptoms were ‘various aches and pains’, including in the shoulders, and that he was currently taking painkillers and receiving physiotherapy. The report concluded that the examination revealed no abnormalities in the neck, shoulders or back, and that Mr Arora was fit to return to his work. The WorkCover claim was rejected in early January 2023. Mr Arora has appealed this decision.
Mr Arora gave evidence that on 20 January 2023, at the direction of the company, he attended a medical examination with a Dr Altaf, who concluded that he was not fit for duty. Later that month he went to India to seek further treatment and therapy. In late January 2023, the company wrote to him and stated that it would terminate his employment unless he provided a certificate of capacity within a week. Mr Arora sent the company a certificate of incapacity from Dr Kumarasinghe covering the month of February. He told his manager that he was feeling better and that he was going to see his doctor again, but that he needed more time. Mr Arora said that despite this, the company terminated his employment.
Mr Mandeep Singh, the company’s depot manager, gave evidence that, following the incident on 18 November 2022, Mr Arora submitted a certificate of incapacity for the period 18 November to 2 December 2022, and that he later provided two further certificates of incapacity for the periods 3 to 31 December 2022 and 1 to 28 January 2023. These certificates gave a clinical diagnosis of neck pain, back pain, shoulder pain and stress. Mr Singh’s evidence was that he was not aware of the report of Dr Ghan; he only learnt of it when Mr Arora produced it to the Commission. Mr Singh said that, although the company had the certificates of incapacity from Dr Kumarasinghe, it wanted to obtain a further independent medical opinion. On 18 January 2023, Mr Singh sent Mr Arora a letter, stating that, consistent with its health and safety obligations, the company wanted a further medical opinion on Mr Arora’s fitness for duty, and he was therefore directed to attend a medical examination on 20 January 2023. This was conducted by Dr Altaf. His report dated 23 January 2023 noted that the company had requested a physical and psychological assessment of Mr Arora’s fitness for duty as a bus driver. It stated that Mr Arora was suffering from an anxiety disorder which significantly impaired his ability to manage even marginally challenging situation. It said that Mr Arora appeared to be suffering from mechanical axial pain, but with neuropathic features that could be related to his psychological condition. It further stated that Mr Arora was susceptible to stressful situations and that potential stressors included receiving inquiries. Dr Altaf concluded that Mr Arora did not have any capacity for employment.
Mr Singh said that on 27 January 2023 he sent Mr Arora a letter, noting Dr Altaf’s conclusion that he was not fit for work, and stating that it did not appear that his condition would improve in the foreseeable future. Mr Singh told Mr Arora that the company would afford him a further week to obtain medical clearance to work, and that if he did not do so, his employment would be terminated on 3 February 2023, subject to a final review by the company. Later that day Mr Arora replied, stating that he had now gone overseas for treatment, that he could not resume work in a week, but that he was now feeling better, and would like to return to work once he received clearance from his doctor. On 30 January 2023, Mr Arora sent Mr Singh a further email, attaching a fourth certificate from Dr Kumarasinghe dated 18 January 2023, which stated that he had no capacity for employment from 29 January 2023 until 26 February 2023.
On 2 February 2023, Mr Singh sent an email to Mr Arora, stating that the company would grant him an additional week to provide any relevant information before making a final decision about his ongoing employment. On 10 February 2023, Mr Arora replied, stating that he was feeling ‘a bit better’, that he had an appointment with his doctor in the next few days, but that one week was not enough time to recover. He said that he would provide the company with an update once he had met with his doctor. Mr Singh then sent Mr Arora a letter stating that the company had decided to terminate his employment effective from 10 February 2023 on the basis that he was unable to fulfil the inherent requirements of his role as a bus driver.
Submissions
Mr Arora submitted that his dismissal was unfair because the company dismissed him for incapacity that was due to work-related causes. He said that the company had failed to recognise this, and that the termination letter had wrongly referred to a ‘non-work-related injury’ that was preventing him from performing his role. Mr Arora said that it was unfair of the company not to have afforded him a reasonable opportunity to recover, and that he had told Mr Singh that he was feeling better and would soon be seeing his doctor again. He said that if the company had only waited a few more weeks, he might have been able to regain his fitness for duty, but instead it refused to allow him any extra time to get better. He said that the report of Dr Altaf had suggested that there be a review in two months, but the company ignored this and did not allow him the opportunity even to meet with his doctor and provide a further update. Mr Arora said that a further dimension of unfairness in his dismissal arose from the fact that the medical opinions about whether he was fit for duty were conflicting: Dr Ghan had said that he was fit, a conclusion which led to the rejection of his WorkCover claim, whereas Dr Altaf said that he was not fit, a conclusion that led to his dismissal.
Mr Arora said that it was unfair for the company to have dismissed him while he was overseas, at a time when he was on his way to recovery. He said that the company did not give him any support and refused to grant him leave without pay to give him more time to recover and prove his fitness when there was no reason why it could not have done so. After the incident on 18 November 2022, he had requested to take paid annual leave, but he was granted only two weeks of leave. He said that the company provided false information which affected Dr Ghan’s report, which concluded he was fit for work and resulted in his WorkCover application being wrongly rejected. Mr Arora said that the company had sabotaged his career. He said that the company was a large undertaking and could simply have given him more time to regain his capacity for work. He submitted that in all the circumstances the Commission should conclude that his dismissal was harsh, unjust or unreasonable and that he should be reinstated to his role as a bus driver.
The company contended that the evidence clearly established that Mr Arora was not fit for duty. The report from Dr Altaf had concluded that Mr Arora had an anxiety disorder and that he had no capacity for employment as a bus driver. Mr Arora’s treating doctor had provided four separate certificates over several months stating that he had no capacity for employment. When the company had told Mr Arora that it was considering terminating his employment on the basis that he was not fit for duty and offered him an opportunity to provide information to the contrary, Mr Arora had submitted a further certificate from Dr Kumarasinghe confirming that he was not fit for work. Although Dr Altaf’s report stated that there could be a review in two months, there was no indication of an expectation of improvement over this time; rather, Dr Altaf said that the review might shed light on whether Mr Arora’s incapacity was permanent. The company denied that it had ‘harassed’ Mr Arora or treated him badly. It said that he could have elected to cash out his annual leave but did not do so, and that by the time of the dismissal Mr Arora had been off work for several months.
The company contended that it had been very clear with Mr Arora that it had concerns about his capacity for work, that this was the reason it was sending him for an independent medical examination, and had later told him that, based on the report of Dr Altaf and the available information, it did not consider that he could do his job. The company had provided Mr Arora with an opportunity to respond to its proposed termination of his employment, but instead of providing a certificate of capacity or concrete information indicating that he would soon recover, he sent a further certificate of incapacity. The company maintained that it had a valid reason to dismiss Mr Arora: he was not fit for work and was simply unable to perform the inherent requirements of his job. It said that in all the circumstances the dismissal was not unfair.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust, or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is a good and substantiated reason for dismissal. In cases where the reason for dismissal is an employee’s incapacity for work, the Commission must make findings as to whether at the time of the dismissal the applicant suffered from the alleged incapacity, based on the relevant medical and other evidence before the Commission (see CSL Pty Ltd v Papaioannou [2018] FWCFB 1005, at [50]). I find that at the time of his dismissal, Mr Arora was unable to perform the inherent requirements of his job as a bus driver. The report from Dr Altaf concluded that Mr Arora did not currently have capacity for employment. It found that he had a susceptibility to stressful situations. Dr Altaf’s report noted that it was too early to conclude whether his condition would ever improve sufficiently to allow him to return to work and that a review in two months may shed further light on this. But the report was very clear that Mr Arora was not fit for duty. I note that Dr Altaf’s report was based on an assessment of Mr Arora on 20 January 2023, a relatively short time before the dismissal. There is no medical evidence before the Commission to suggest that Mr Arora’s condition changed after that time. In fact, the fourth medical certificate signed by Dr Kumarasinghe stated that Mr Arora had no capacity for employment up to 26 February 2023. Further, Mr Arora told Mr Singh on 10 February 2023 that, although he was feeling better, he needed more time to recover. He also confirmed at the hearing that he was unfit for duty at the time of his dismissal and remained unfit for work.
I appreciate Mr Arora’s frustration at receiving one medical report, from Dr Ghan, stating that he was fit for duty, and another, from Dr Altaf, stating that he was not fit. However, it is important to understand that these reports were commissioned by different entities, for different purposes. Dr Ghan’s report was requested by the company’s WorkCover insurers. The full details of the claim are not before the Commission; all that is known of the claim is the content of Dr Ghan’s report, some brief details provided by Mr Arora in his evidence, and the fact that the claim was rejected. However, it is clear that Dr Ghan, an orthopaedic surgeon, examined Mr Arora’s physical fitness for duty, not his psychological fitness. Dr Altaf on the other hand was specifically requested by the company to consider both. He did so. Dr Altaf’s conclusion that Mr Arora was not fit for duty was clearly based on his assessment of Mr Arora’s mental health. Dr Ghan’s report provides no basis to question the validity of Dr Altaf’s conclusion. Mr Arora does not question Dr Altaf’s conclusion either. Rather, he considers it unfair that Dr Ghan’s conclusion that he was fit for duty appears to have resulted in the rejection of his WorkCover claim, which he is now appealing. Why Dr Ghan’s examination was apparently confined to a physical assessment is not clear. In any event, this examination was requested by the insurer, not the company. I accept Mr Singh’s evidence that he had no knowledge of Dr Ghan’s report prior to its production by Mr Arora in the course of these proceedings. I reject the suggestion that the company somehow provided false information to Dr Ghan. There is simply no evidence to support this notion.
I agree with Mr Arora that his injury appears to be work-related, in the sense that it has a connection to the incidents that occurred at work in 2016 and 2017. The report of Dr Altaf appears to recognise that this is the case. I understand why Mr Arora felt aggrieved by the reference in Mr Singh’s termination letter to his ‘non-work’ injury, but as Mr Singh explained in his evidence, what he meant by this was simply that he understood that Mr Arora’s WorkCover claim had recently been rejected. I accept Mr Singh’s evidence that the decision to end his employment was based on his inability to perform his job as a bus driver. Whether the cause of the injury was work-related or not, the uncontested fact is that Mr Arora had no capacity for work. For some two and a half months, he had submitted certificates of incapacity issued by Dr Kumarasinghe, the most recent one extending to 26 February 2023. He had long since used all of his accrued personal leave. The fact that Mr Arora was not able to do his job was a valid reason for dismissal in the circumstances. This weighs in favour of a conclusion that the dismissal was not unfair.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reason related to capacity or conduct (see ss 387(b) and (c)). Both things occurred in this case. Mr Arora was notified of the reason for dismissal in the termination letter. The concerns regarding his capacity were squarely raised with him beforehand. Mr Arora was given an opportunity to respond, and he did so.
As to the other matters which the Act requires the Commission to consider, the company did not refuse, unreasonably or otherwise, to allow Mr Arora to have a support person present to assist in discussions relating to the dismissal (s 387(d)). If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal, however the present case concerns incapacity, not poor performance. The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). These considerations do not raise the bar for larger employers like the company. They recognise that less may sometimes be expected, in procedural terms, of small employers. They carry no weight in this case.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). Mr Arora contended that it was unfair for the company not to have given him more time to recover and to demonstrate a capacity for work. He said that, if the company had only waited a few more weeks, it was possible that his doctor would have revised her assessment of his fitness for duty. He said that the company knew that he was feeling better and would be seeing his doctor shortly, but stubbornly refused to give him more time. However, in my opinion, the company’s decision not to give Mr Arora more time was not unfair. Mr Arora had been absent for nearly three months. None of this time was on paid sick leave. The clinical opinion of Dr Altaf was very clear and aligned with that of Dr Kumarasinghe. Mr Arora had no capacity for work. In my assessment, the report of Dr Altaf was pessimistic about his outlook. In any event, there was no medical evidence before the company on 10 February 2023 that gave any indication that Mr Arora would have an imminent capacity for work. Although Mr Arora told Mr Singh that he was feeling better, this did not provide a logical basis to conclude that he might soon be fit for work, in the context of a protracted absence for reason of medically certificated incapacity. Mr Arora said at the hearing that the treatment that he had received in India had been very helpful, however he did not relay this to Mr Singh. When asked by Mr Singh to provide any relevant information, he submitted a further certificate from Dr Kumarasinghe, valid until late February 2023, confirming his incapacity for work.
In his materials in reply, Mr Arora submitted a further medical report from Dr Kumarasinghe, dated 18 March 2023, in which she confirmed that he remained unfit for work. Also submitted was a report from his psychologist, Dr Kho, dated 3 March 2023. It concluded that Mr Arora was ‘incapable’ of returning to his pre-injury role, as the thought of returning triggered intense anxiety, a sense of helplessness and debilitating flashbacks. Both of these reports appear to be connected with Mr Arora’s appeal against the decision to reject his WorkCover claim. Mr Arora also acknowledged at the hearing that he remains unfit for work. In light of this, it appears to me that even if the company had given Mr Arora more time to recover, it would not have made any difference. Mr Arora submitted that his dismissal by the company had exacerbated his injury and suggested that he might have been able to recover had he remained in employment. But although Dr Kumarasinghe’s latest report stated that his mental health got worse following his dismissal, and Dr Kho stated that his sense of helplessness had increased since that time, neither report suggests that if Mr Arora had not been dismissed, he might already have recovered.
Mr Arora had not exhausted his annual leave, and there appears to have been some confusion as to whether he was able to take more leave. The company said that its policy is to allocate annual leave early in the year and if requests are made for annual leave at a later time, it will allow employees to ‘cash out’ annual leave. It is not clear what practical difference there is between taking annual leave and cashing out leave in the case of an employee who is already absent from work for illness or injury. Mr Arora was told that he could not take additional annual leave; however, I accept Mr Singh’s evidence that a member of his team told Mr Arora that he could cash out his leave, and that he did not do so. Perhaps the company could have been clearer with Mr Arora about how to apply to cash out the annual leave. But this matter is of little significance for the question of whether the dismissal was unfair. I note that although Mr Arora was not paid his accrued annual leave during various periods of his absence, he received it as a lump sum payment on termination, as required by the Act.
I do not consider that the company ought reasonably to have afforded Mr Arora further time to recover, whether on leave without pay, annual leave, or on some other basis. He had been absent from work for several months. He had exhausted his accrued sick leave. There was no reasonable basis to expect an imminent improvement in his condition. In my view the company had been patient with Mr Arora. It had already afforded him a reasonable time to recover.
I take into account that, including his period of employment with Transdev, which the company recognised, Mr Arora had nine years of service. I also take into account the economic and broader personal impact of the dismissal on Mr Arora. However, in all the circumstances, I do not consider that the dismissal was unfair.
I would note that, even if I had concluded that the dismissal was unfair, I would not have awarded a remedy. Mr Arora said that his recovery would be assisted if he were to be reinstated, but in my view reinstatement would plainly have been inappropriate, because Mr Arora has no capacity for work, and there is no medical evidence suggesting any imminent return. Compensation would not have been appropriate either, because it appears that Mr Arora has continued to have no capacity for employment since his dismissal. This would explain the absence of any evidence from Mr Arora about efforts to mitigate loss by applying for other jobs. In short, Mr Arora has not lost any earnings as a consequence of his dismissal. Had he remained employed by the company, he would not have received remuneration because he was not fit for work.
Finally, I note that at the hearing, the company emphasised that it had had no concerns with Mr Arora’s performance during his employment, and that should he regain his capacity for work – which all concerned in this matter no doubt hope for – he would be welcome to apply for a position as a bus driver.
Conclusion
The company had a good and substantiated reason to dismiss Mr Arora. He was unable to do his job. The company did not act hastily. Mr Arora was afforded a reasonable opportunity to recover. It was not unfair not to give Mr Arora more time. Even if more time had been granted, I do not consider that it would have made any difference to the ultimate outcome. The circumstances of the dismissal were not harsh, nor were they unjust or unreasonable. The dismissal was not unfair. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
K. Arora and R. Arora for the application
A. Arness for the respondent
Hearing details:
2023
Melbourne
9 May
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