Keith Green v Booth Transport Pty Ltd

[2009] FWA 1019

[2009] FWA 1019

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Keith Green
v
Booth Transport Pty Ltd
(U2009/11168)

COMMISSIONER RAFFAELLI SYDNEY, 24 NOVEMBER 2009

Termination of employment.

[1] This decision concerns an application made pursuant to section 394 of the Fair Work Act 2009 by Mr Keith Green (the Applicant) for an order granting a remedy concerning his alleged unfair dismissal by Booth Transport Pty Limited (the Respondent). The matter was dealt with as a hearing, my having been satisfied of the matters in section 399(1).

[2] The Applicant commenced employment with the Respondent in 2003 as a long haul truck driver.

[3] In 2005, the Applicant was involved in a road accident. After some periods off work on workers compensation he returned to driving duties.

[4] There is dispute as to whether he returned to his pre-injury duties. The Applicant in his evidence said that he has, since his return from the accident, largely performed depot to depot work. This is the sort of work which he performed prior to his accident. Such work seems to have principally involved picking up his truck from the Respondent’s Sydney depot (where it was loaded by the Respondent’s yard staff) and driving to the Respondent’s Brisbane depot where it was unloaded by the Respondent’s yard staff. This also occurred in returning from Brisbane to Sydney, although there were frequent instances where he was required to have some extra loading of the truck in Brisbane (e.g. at CUB) and some loading/unloading at some client premises in Newcastle.

[5] Whenever the Applicant visited the premises of the Respondent’s clients/customers the loading and unloading of his truck would be performed by the relevant site’s forklift drivers.

[6] The above general description of his driving functions and itinerary was, according to the Applicant, unchanged from his pre-injury situation.

[7] The case of the Respondent is that from the time of the accident, the Applicant has been unable to perform all functions required of a driver including lifting or pushing on heavy objects. This meant that the Applicant was utilised as much as possible on long haul runs where he picked up and dropped his vehicle at the Respondent’s depots where yard staff took over. Where he had to visit other premises, arrangements needed to be made for relevant yard staff to not only perform forklift duties but other functions normally carried out by a truck driver.

[8] The evidence of Mr Sean Adams the NSW Operations Manager of the Respondent included what he and the Respondent considered to be the tasks of a driver such as the Applicant. These were set out as part of exhibit Booth 8/SA2 and it provided:

“JOB TASKS – General Freight Driver

The specific physical requirement of a heavy vehicle (general freight) driver’s role includes:

• Ability to sustainably drive the vehicle with a manual transmission on long haul trips.

• Gain safe access and egress from the vehicle / cab via steps and hand rails.

• Climb and access coupling hoses and trailer release arm at the back of the truck cab to remove and fix trailers.

• Place tie down plates on palletised loads.

• Secure palletised products.

• Lift / lower and position side gates.

• Open / close and secure side curtains.

• Occasional forklift operation.

• Replace a wheel and tyre which may be blown”

[9] The evidence of the Applicant was that he was at all times able to drive both a manual and automatic vehicle, had no problem gaining access and egress from any type of truck allocated to him and was able to secure loads.

[10] The Applicant said that he did not perform forklift operations because this was never required of him, possibly because he does not hold a relevant certificate. He also never performed tyre changing as this was carried out by a tyre supplier and in any case the weight of tyres (up to 70 kg) cautioned against drivers changing tyres. It seems that the evidence of the Respondent’s witnesses conceded that forklift functions and tyre changing were not generally performed by drivers.

[11] Ultimately, the real controversy was over whether or not the functions of lifting, lowering and positioning side gates and opening, closing and securing side curtains was a necessary and fundamental part of a driver’s duties.

[12] The Applicant’s evidence was that he could tighten side curtains during a trip but it was not his evidence that he could perform the functions as to side gates nor open and close side curtains. This involved heavy lifting, bending and/or raising of arms over his shoulder and such functions are restricted by his medical advice (exhibit Green 4; Booth 2).

[13] The Applicant submitted however that such duties were not required when he attended at the Respondent’s depot. When travelling to customers’ premises he felt that this was of no great impost on either his employer or the client. He reiterated his view that the runs he made and the functions he performed were now unchanged from his pre-injury situation.

[14] The Respondent’s witnesses all agreed that the Applicant was a competent and valued long haul driver. However they submitted that after his injury they did have to take steps to maximise his depot to depot work and make special arrangements when he travelled to other locations by ensuring assistance was provided including as to the handling of side gates and curtains.

[15] It seems that in late June / early July 2009, it came to the attention of the Respondent that its workers compensation insurer had determined that it no longer had any continuing obligation to the Applicant arising from his injury as he had reached a settlement under the road accident compensation scheme. The Respondent decided to review what it considered to be its employment arrangement with the Applicant. I take this to mean that the Applicant was being utilised on “appropriate duties” in accordance with workers compensation requirements. It sought to determine whether the Applicant could now perform the inherent requirements of the job.

[16] According to the evidence of Mr Craig Sageman, the Respondent’s Group Manager Human Resources, he made arrangements with an organisation, JobFit Medical Services which provided services to the Respondent including access to appropriate medical practitioners. He arranged for JobFit to receive a position description and details as to the physical requirement of a driver.

[17] JobFit then arranged medical appointments for the Applicant.

[18] According to the Applicant, in early July 2009 he became aware that in the light of his workers compensation file being closed he was to take some fresh medicals. He was also suspended from duty.

[19] On 8 July 2009 he attended at a medical centre and was examined by a doctor and physiotherapist with whom he had had no previous dealings.

[20] According to Mr Sageman on 11 July 2009 he received a report from Dr Drew of JobFit. That report concluded by saying that the role of truck driver was beyond the safe capacity of the Applicant.

[21] Mr Sageman then wrote to the Applicant (the correspondence was received on Monday 27 July 2009) attaching a copy of Dr Drew’s report. He stated:

“… Based on Dr Drew’s report we have reached the conclusion that you are not fit for the inherent requirements of a driver, the position that you were substantively employed in.

We therefore put you on notice that in the absence of any evidence to the contrary of a conclusive nature that you are fit to perform the duties of a truck driver on a full time basis, without placing yourself or others at risk, we will have no option but to terminate your employment.

We ask that you provide us with a full clearance from a registered medical expert indicating you are ready, willing and able to return to your full driving duties by no later than Friday 31 July 2009.” (exhibit Booth 4/CS3)

[22] On 30 July 2009, the Applicant wrote to Mr Sageman seeking an extension of 14 days in which he could arrange to provide this necessary evidence as to his fitness.

[23] On 31 July 2009. Mr Sageman wrote to the Applicant and extended the time in which to respond to Tuesday 4 August 2009.

[24] On 3 August 2009, the Applicant provided Mr Sageman with a medical certificate from his treating medical practitioner Dr K Pang. Dr Pang’s certificate said: “Mr Keith Green will be fit to drive a truck from 3/8/09.”

[25] On 4 August 2009, Mr Sageman wrote to the Applicant. This correspondence (exhibit Booth 4/CS7) included:

“In the letter dated July 24, 2009 it was clearly stated that you were required to provide “evidence of a conclusive nature” attesting to your fitness to perform the duties of a truck driver on a full time basis, without placing yourself or others at risk. Unfortunately you have failed to provide any evidence of a conclusive nature as requested.

In the absence of the requested information and based on Dr Drew’s report the conclusion has been made that you are not fit to fulfil the inherent requirements of a driver, the position that you were substantively employed in.

This letter is to confirm your employment with Booth Transport has been terminated effective August 4, 2009.”

[26] The submissions of Mr de Meyrick who represented the Applicant included that:

• the Applicant has at all times performed his duties without a problem. These duties are unchanged from those applying before his accident;



• the Respondent’s action in referring to some minor functional shortcomings is petty and to terminate on that basis is unfair;



• the Respondent’s decision was not based on any operational need;



• the Respondent did not provide the Applicant with sufficient opportunity to establish his fitness;



• there is insufficient evidence as to any burden that the Applicant imposed;



• the termination was also procedurally unfair;



• the Applicant seeks re-instatement.

[27] The submissions of Ms Vass who represented the Respondent included that:

• the evidence was clear that the Applicant was unable to perform a range of duties including lifting, removing and replacing gates and pulling curtains;



• these represented inherent functions of a long haul truck driver;



• the Respondent gave the Applicant adequate opportunity to establish that he could perform all the necessary functions. He was unable to do so.



• the functions said to be inherent requirement of the job were those which he undertook to perform when he was employed;



• the Respondent explored alternatives to his termination but found none;



• there was no procedural unfairness;



• if the termination was found to have been harsh, unjust or unreasonable, it would not be appropriate to order reinstatement as the Applicant cannot safely perform his duties.

Determination

[28] Section 385 provides that a person has been unfairly dismissed “if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[29] In this matter, subclauses (a), (c) and (d) are not in issue. Here Fair Work Australia needs to determine if the dismissal was harsh, unjust or unreasonable.

[30] Section 387 provides that:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[31] I intend to take into account the matters referred to in section 387 where they are relevant.

[32] As to whether there was a valid reason for the dismissal related to the Applicant’s capacity, I have set out some details of the evidence and submissions. I have given them and all other matters consideration.

[33] In my view it is not controversial to state that in general the inability of an employee to fulfil the inherent requirements of a job provides a valid reason for termination.

[34] In this case, the inherent requirements of the job are said to be by the Respondent to not only include the physical driving of the vehicle but also a range of functions associated with the loading and unloading of the vehicle.

[35] However, the Applicant says that functions set out by the Respondent are ones which he never had to perform (even before his accident) and in any case are not inherent to his job which has always largely been the transport of goods between the Sydney and Brisbane depots.

[36] It may be that for a large part of his employment, including before his accident, the Applicant was not required to perform all of the Respondent’s list of duties. Some of the duties have not and are not generally required of drivers and the employer is not able to now give them some critical role. However, I am satisfied that the Respondent is entitled to determine that the inherent requirement of the position of a long haul truck driver includes the lifting, lowering and positioning of gates and pulling down of curtains. I find that the inherent requirements of the job in issue include those functions.

[37] Given past medical certificates and restrictions, it seems that the Applicant might have had difficulty in performing those tasks.

[38] In this case however some additional factors operate. Firstly, the advice relied on by the Respondent was said to be an “Interim Report – Awaiting Confirmation” (exhibit Booth 4/CS2). The report had been received and signed by Dr Drew but there was no signature of the examining physician. This is most unsatisfactory. Was the report interim because Dr Drew had not yet spoken to the examining doctor? One cannot know. Nor is it clear from the Interim Report as to which doctor decided that the applicant was not fit to drive trucks. Was it Dr Drew or the examining doctor?

[39] Secondly, the decision of the Respondent was largely made on the basis of Dr Drew’s report and the contrary report of Dr Pang. Dr Pang’s report was clearly insufficient. Yet the Respondent did not inform the Applicant that he should get a more comprehensive report.

[40] In respect of the Applicant’s obligation to satisfy the Respondent’s concern, there was no forwarding to the Applicant or his doctor of what the Respondent considered to be the inherent requirements of the job.

[41] Thirdly, it is clear that the Respondent’s urgency was not driven by any operational reason. Mr Adams, the operations manager, was very much on the periphery of the decision that was made.

[42] Finally, there was no exploration with the Applicant as to the needs of the business and discussion as to his shortcomings and consideration of any alternative arrangement.

[43] In my view, given all the circumstances including the reliance on the unsatisfactory nature of the Dr Drew report and the failure to enable the Applicant to provide meaningful alternative advice, I find that there was no valid reason for the termination of the employment. There was an insufficient basis as at 4 August 2009 for the Respondent to be satisfied that the Applicant could not perform truck driving work for it.

[44] I find that the Applicant was notified of the reason for his termination.

[45] As to whether the Applicant was given an opportunity to respond, I consider that given his six years of service, the Applicant should have been given an opportunity to put his side of things. It is clear from the correspondence to the Applicant from Mr Sageman dated 24 July 2009 (exhibit Booth 4/CS3) that the Applicant was only being asked to provide conclusive evidence of fitness. There was no invitation to put anything as to why he should not be terminated. I find that the Applicant was not given an opportunity to respond.

[46] Sections 387(d), (e), (f) and (g) do not require any meaningful attention in the case at hand.

[47] As to any other matters of relevance, I have considered the fact that while the Respondent’s case was that it had accommodated the Applicant’s physical shortcomings, there was an absence of evidence where it had been shown to the Applicant that these special arrangements had been put in place and that they were burdensome for the Respondent. The revision of his employment seemed for the Applicant to have come out of the blue.

[48] I have also noted the evidence of the Respondent’s witnesses as to the otherwise very good work conducted by the Applicant over many years.

[49] In all the circumstances, I find that the Applicant’s termination was harsh, unjust or unreasonable.

[50] Having so found and given what I said before, I am also satisfied pursuant to section 385 that the Applicant was unfairly dismissed.

[51] Section 390 provides that Fair Work Australia may order the Applicant’s reinstatement or the payment of compensation. In this case I am satisfied of the necessary preconditions set out in section 390(1) and (2).

[52] I have had to consider whether or not in the circumstances the Applicant ought to be re-instated. In that regard, I have already noted that the Respondent is entitled to require that the job of long haul truck driver include the handling of side gates and curtains. Whatever arrangement applied in the past, the Respondent is entitled to insist upon it at least now. While I found that as at 4 August 2009 there was insufficient basis for the Respondent to find conclusively that the Applicant could not perform the necessary functions, it is clear to me from these proceedings that there is an absence of evidence from the Applicant that he can do all those functions. No attempt was made to provide any medical proof to assist his case. So while it was not clear in August, it is now probable that the Applicant cannot perform the inherent requirements of the job.

[53] There was no evidence of any other position which he could perform.

[54] In those circumstances, I find it inappropriate to order his reinstatement.

[55] Pursuant to section 390(3)(b), I consider that in all the circumstances of the case it is appropriate to make an order for the payment of compensation.

[56] The order for the payment of compensation is in lieu of reinstatement.

[57] In determining the amount of compensation, section 392(2) sets out matters that must be considered. I give consideration to those matters as follows:

[58] While the Respondent says that the global financial downturn has had some impact on it, I find that any order as to compensation will have no meaningful effect on the Respondent’s business.

[59] The Applicant was employed for about six years a significant period of employment.

[60] As to the remuneration that the Applicant would have received or have been likely to receive but for the termination of employment, this is always a speculative consideration. With that in my mind, I have assumed that the entire treatment of the Applicant should have been better handled. If that had been the case, Dr Drew would probably have provided the Respondent with a final report some time after 4 August 2009. It had not been provided by 4 August 2009, but assuming that it would have been, it might be expected to have been provided by at least 18 August 2009. That might then have been followed by a period of some two weeks for the Applicant to be examined by his doctor and for the Respondent to provide documents such as position descriptions to the doctor. That would have been followed by a period of two weeks for the doctor to provide any report.

[61] It is then reasonable to assume that a period of another six weeks would have elapsed enabling the Respondent to seek possible advice from Dr Drew in the light of the Applicant’s reports and/or for there to be a process of meaningful engagement as to the extent that the Applicant could or could not be accommodated. After all, it is clear from the evidence of Mr Damien Booth that he had considered alternative functions including the Tarcutta changeover. (exhibit Booth 8/para 8). He had decided that the Applicant could not do this. However, the evidence of the applicant and of Mr Adams (PN1628) was that he had performed such function. This would indicate that this is an alternative that would be the subject of discussion. In the light of my earlier findings however, it is more than likely that the Applicant would have then been validly dismissed.

[62] It may be that the period I have described may have been a little bit longer or a little bit shorter, but I consider that it is a fair assessment to find that but for the termination the Applicant would have received remuneration for a further twelve weeks and I so find.

[63] The Applicant has sought to mitigate his loss by enquiring as to opportunities from a few people he knows. He has not done anything more. I find that he made some effort to mitigate his loss but should have done more.

[64] I have given consideration to the matters set out in section 392(e) and (f). There was nothing put in that regard and I can only assume that no remuneration was earned and there is no basis for finding that it is likely that some income was earned.

[65] I have also considered relevant the failure of the Respondent to pay the additional week’s notice arising from the employee being older than 45 and the apparent failure to pay for the period from when he was stood down in early July 2009 until termination on 4 August 2009. Although the Respondent has undertaken to correct those failures the Respondent may have been financially disadvantaged by such lengthy delay in payment.

[66] On the basis of the consideration of all the matters here relevant to section 392 I have decided to order compensation of an amount of 12 weeks pay. In doing so, I have balanced a range of considerations, including remuneration that the Applicant would have received but for the unfair termination. I have also considered his failure to better mitigate his loss as a negative consideration but this has been balanced by the actions of the Respondent in not making certain statutory and contractual payments on time.

[67] There was some controversy as to what were the Applicant’s weekly earnings. I do not know. I trust the parties can agree on an amount. If they cannot, they may approach Fair Work Australia.

[68] Finally, I indicate that in deciding this matter I have given consideration to the need to ensure that a fair go all round has been provided to the Respondent and Applicant.

[69] An Order reflecting this Decision is in PR990630.

COMMISSIONER

Appearances:

Mr R. de Meyrick for the Applicant.

Ms S. Vass for the Respondent.

Hearing details:

2009.

Sydney:

November 2, 3.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR990597>