Kevin Rowe v v/Line Pty Ltd

[2014] FWC 1437

[2014] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Rowe
v
V/Line Pty Ltd
(U2012/17463)

COMMISSIONER WILSON MELBOURNE, 3 MARCH 2014

Application for Unfair Dismissal Remedy.

[1] Kevin Rowe was employed as a Locomotive Driver by V/Line Pty Ltd (“V/Line”) for almost 44 years, and was dismissed by V/Line on 7 December 2012.

[2] V/Line submits that Mr Rowe’s termination of employment was not unfair since he had been absent from work from 18 December 2010. The company argues Mr Rowe was unfit for duty as a result of a post-traumatic stress disorder related to a number of previous train incidents; that there was not a prospect of him returning to work in his position of employment; and that it did not have alternative duties available for him.

[3] Mr Rowe’s application for unfair dismissal was made on 28 December 2012. On 15 August 2013 Commissioner Cribb granted an extension of time for the making of an unfair dismissal application. The material before Commissioner Cribb was also before me in these proceedings 1.

[4] The substantive part of Mr Rowe’s application was heard on 13 November 2013 with final written submissions received on 18 December 2013.

BACKGROUND

[5] Mr Rowe worked for V/Line and its predecessors for a very long time, since January 1969 2. Given that his employment finished on 7 December 2012, he had been employed for almost 44 years (noting that his service was broken over a weekend in 2005 as part of a Driver Retention Scheme possibly connected with the Commonwealth Games3).

[6] The submissions and evidence given by the Applicant in the proceedings before me indicate he is passionate about his work and takes great pride in what he has done. Unfortunately though, the job was stressful for him, and several accidents and near-misses made him ill. Mr Rowe’s submissions include the following;

“6. ... I had two nasty accidents in 2009. Involving impact with a pedestrian at 148 kph. And impact with three fallen trees, derailing the whole train, with the locomotive rolling over thru a rock boundary wall.

I had returned to work and put the events of 2009 behind me. I had a good grasp of my job, In the forty eight weeks since returning ( 19/1/10.) I had worked two hundred shifts, and in that time also taken six weeks from my annual leave. ( in two lots ) this shows a very consistent work pattern.

7. I was not overreacting, the last two incidents, three weeks, apart involved just missing two boys at 160kph. One within two metres on passing and the other just clambering out of the pit.

And the last incident, ( above ) a car stalled on the line, only just clearing the crossing by five to six metres as the train passed. Both of these were the result of infrastructure faults that I reported. Both may still exist, certainly there are several holes in the fence at Little River as of 3/10/13.” 4

[7] On or about 20 December 2010 Mr Rowe was involved in a near-miss train incident 5. Over his working career, Mr Rowe had previously been involved in 20 reported train incidents involving collisions, fatalities and near misses.6

[8] Following the December 2010 incidents;

• Mr Rowe submitted a medical certificate advising he was suffering from post-traumatic stress disorder 7 and that he was consequently unable to perform his role. This was not the first certificate that he had provided indicating he was unfit for all of his duties8.



• Mr Rowe’s December 2010 incapacity was confirmed by V/Line’s Psychological Services Provider on 21 December 2010 9 and in later consultations through 2011, initially being assessed as temporarily unfit for duty10.



• An October 2011 consultant psychiatrist’s report from Dr Dielle Felman concluded in relation to Mr Rowe, that “it is unlikely that he will return to his pre-injury duties at any time in the foreseeable future” 11. V/Line drew from the report that Mr Rowe would also not be able to undertake alternative duties with the company12.



• This opinion was confirmed in October 2011 by Dr Stuart Turnbull, V/Line’s Chief Medical Officer 13.



• Mr Rowe also submitted a workers’ compensation claim following the December 2010 incident 14. Medical incapacity certificates continued to be provided to V/Line from that point in 2011 and through into 201215.

[9] In September 2012 Mr Rowe was again assessed by Dr Felman. Her report was reviewed by Dr Turnbull who provided a further written report 16. Neither practitioner gave evidence in these proceedings, or those before Commissioner Cribb.

[10] The September 2012 medical report from Dr Felman indicates the following;

“At today’s assessment Mr Rowe reports ongoing symptoms of Post-Traumatic Stress Disorder including hyper-vigilance, hyperarousal, sensitivy (sic) to load noises, increasing anxiety in the evenings, disturbed sleep with ongoing nightmares, and impaired concentration. The sound of the train passing by his house continues to distress him, although he is now able to travel as a passenger on a train, without difficulty. He reports wanting to return to work, to “face [his] demons” and get “miles under [his belt]”.

...

On the basis of the information available including background information, Mr Rowe’s self report and findings on mental state examination I am of the opinion that Mr Rowe continues to suffer from Post-Traumatic Stress Disorder. There has been a mild improvement in his symptoms since the time of the previous assessment; however this improvement has not been appreciable.

Given the nature of Mr Rowe’s ongoing symptoms, including hypervigilence, hyperarousal, sleep disturbance, concentration difficulties, ongoing nightmares and sensitivity to the sound of trains passing; I do harbour concerns regarding his capacity to return to his substantive position in a durable manner.

While retraining, as Mr Rowe suggests, may be a good test of his concentration, I am of the opinion that as a result of his hyperarousal and other PTSD symptoms, he may experience more near misses and react to them more so than other drivers. I am also of the opinion that involvement in a further accident or near miss is likely to have a deleterious affect (sic) on his mental health and wellbeing.” 17

[11] Dr Turnbull reviewed Dr Felman’s report, but did not directly see Mr Rowe in order to provide his assessment 18. In the course of his report, Dr Turnbull addressed several significant questions pertaining to Mr Rowe’s capacity to return to work, either in his current position, or an alternative;

“SPECIFIC QUESTIONS:

In answer to your specific questions, I offer the following responses:

1. Do you believe that Kevin will be able to return to his full pre-injury duties and hours as a train driver?

Mr Rowe last worked as a locomotive driver almost two years ago. He continues to suffer regular flashbacks in relation to various accidents and near misses. He is hypervigilant with loud noises and he reports he continues to be startled at home by passing trains. I do not consider that he will ever return to his full pre-injury duties as a locomotive driver. The basis for this is the fact that almost two years after he last worked as a driver, he continues to suffer symptoms of PTSD. He continues to take significant medications in an effort to control his symptoms. I do not consider that he will return to pre-injury duties now or into the foreseeable future and I therefore consider he is permanently unfit as a locomotive driver.

2. If no, is it anticipated that he will ever be able to return to his pre-injury duties?

I consider that Mr Kevin Rowe will never return to his pre-injury duties. It is my recommendation that he is permanently unfit as a locomotive driver.

3. Do you believe he is fit for alternative duties within V/Line?

Mr Rowe has advised that he continues to be startled by passing trains and therefore I would ·consider that he would not be fit to work in any position within the railway safety environment, that is on the tracks or adjacent to where trains would be running. I note from Dr Felman’s report that Mr Rowe continues to suffer concentration difficulties and I would have concerns about him returning even to an office job. Mr Rowe advised Dr Felman that he was unable to read as a result of his concentration difficulty, so I would consider he would not be fit for office-based duties away from the rail safety environment. His ability to work in an office may change in the future but at present, based on his admission of difficulty reading and poor concentration, I would consider that he would not be fit presently for office-based work.

4. Given the symptoms of his condition such as sensitivity to train sounds, do you believe he is fit for Category I, II or Ill roles within V/Line?

Based on my responses to the previous three questions, I consider that Mr Rowe is not fit for any work within the rail safety environment Category I, Category II or Category III at present. As advised in my response to Question 2, I consider he is permanently unfit as a locomotive driver and I consider that he is presently unfit for all other rail safety work.” 19

[12] On 7 December 2012 V/Line dismissed Mr Rowe “on the basis that he was permanently unfit to discharge the duties of the safety critical role as a locomotive driver and unfit to perform any alternative suitable employment within the Respondent” 20.

[13] The correspondence sent by V/Line to Mr Rowe confirming his dismissal (which is referred to in greater detail below) indicates that he was dismissed because he was “unfit to perform any duties (including categories 1 - 4) in accordance with the Code of Practice for Health Assessment of Rail Safety Workers - 1 July 2004” 21. The same correspondence indicates that V/Line had concluded there were no suitable alternative positions available for Mr Rowe within V/Line

[14] Mr Rowe contends the decision to dismiss him, as well as the procedure employed by V/Line to do so, amounts to an unfair dismissal 22.

[15] The evidence regarding the decision and process surrounding his dismissal includes the following;

• Dr Turnbull’s supplementary medical report, dated 10 October 2012, was provided to V/Line 23 and was considered by the employer over that month and the next24; however that report, and Dr Felman’s from September 2012 were not provided to Mr Rowe until close to the meeting with V/Line in which he was dismissed;



• Mr Rowe was contacted by Ms Clarke, a V/Line Senior HR Business Partner, on 29 November 2012 and requested to attend a meeting with her. Mr Rowe asked to have a union representative attend. The meeting was initially scheduled for 6 December 2012 25;



• Mr Marotta, a representative of Mr Rowe’s union (the RBTU), contacted Ms Clarke on 20 November about the meeting she had established and requested it be rescheduled to 7 December, to which she agreed. Ms Clarke’s evidence about the conversation includes;




“I advised Mr Marotta that the purpose of that meeting was to discuss medical information before V/Line which indicated that Mr Rowe was not fit for work. Mr Marotta indicated that he understood that the outcome of the 7 December meeting may include termination of Mr Rowe’s employment.” 26

• After the meeting was changed to 7 December, Mr Rowe asked for it to be further delayed, but this request was refused after consideration by V/Line 27;



• In the course of establishing the meeting, Mr Rowe was asked by Ms Clarke to bring with him to the meeting anything that may be considered helpful 28;



• Mr Rowe had some limited insight as to what might be discussed in the meeting 29;



• Mr Rowe knew of the existence of the reports, but gave evidence there had been difficult difficulty in obtaining them prior to the meeting held on 7 December 2012 30. Ms Clarke advised she had previously sent some of the reports to Mr Rowe’s personal general practitioner; and that since she now had Dr Felman’s consent to do so, would provide the 10 October 2012 report to Mr Rowe’s general practitioner31. The reports were provided to Mr Rowe’s medical practitioner at the latest by 11:30 AM on 5 December 201232.

[16] Mr Marotta did not give evidence in these proceedings, or those before Commissioner Cribb.

[17] The arrangement of the meeting on 7 December 2012 and some of the surrounding issues were referred to in the decision of Cribb C as follows (and there is nothing in the evidence taken before me that would require a change to these findings);

“[12] In terms of the meeting on 7 December 2012, Mr Rowe confirmed that he had been telephoned by Ms Clarke, on 29 November 2012, requesting that he attended a meeting. She had told him that the purpose of the meeting was to discuss the findings of the medical reports. He stated that he had requested Ms Clarke obtain RTBU representation for him for that meeting as he would not go to a meeting with HR without a union representative. Mr Rowe explained that he thought it was important to have the union involved in everything but said that he had also been told to make sure he had union representation.

[13] It was Mr Rowe’s evidence that, on Wednesday, 5 December 2012 he had become very suspicious about the likelihood of being dismissed at the meeting. By Thursday 6 December 2012, he was said to have been “beside myself”. He agreed that he knew that a possible outcome of the meeting was the sack as the union had discussed this with him on Wednesday 5 December 2012. However, he said that he naïvely had relied on 44 years of service and his good standing. He confirmed that the meeting was rescheduled from 6 December 2012 to 7 December 2012 as his union representative was unavailable on 6 December 2012.

[14] Mr Rowe agreed that, in the week commencing 3 December 2012, he had had more than one telephone conversation with Ms Clarke. He recalled that, when the union told him that he was going to be dismissed, he had rung Ms Clarke and asked her if that was correct. He said that he had been reassured by her response that it was not a foregone conclusion.

[15] In terms of the meeting on 7 December 2012, Mr Rowe confirmed that he did not provide any material from Dr Taylor or Dr Bruozis. This was because the meeting was to discuss the reports. It was recalled that, neither he nor Dr Taylor found out, until the afternoon of the day before, that the reports had found him permanently unfit to be a train driver. Mr Rowe said that he had been told by Dr Taylor and Dr Bruozis that they would support a structured return to work plan/were going to certify him as fit. However, it was said that there was insufficient time to obtain this in writing. Mr Rowe agreed that he did not bring any such documentation from these doctors to the meeting.” (references omitted) 33

[18] The 7 December meeting consisted of three parts and was attended by Mr Rowe and Mr Marotta, and for V/Line, Ms Clarke and Mr Rod King, the company’s Manager Train Crews 34.

Meeting 7 December – Part 1

[19] During the first part of the meeting Ms Clarke and Mr King confirmed to Mr Rowe the meeting was to discuss the medical reports it had received about Mr Rowe and their implications for his capacity to work 35.

[20] Ms Clarke summarises in her witness statement what was said by her and Mr King in the first part of the meeting;

“(a) there had only been mild improvement in his condition but that he still had a number of on-going symptoms of PTSD;

(b) medical evidence indicated he would not be able to return to his substantive position in a durable manner;

(c) he would not be able to return to pre-injury duties now or in the foreseeable future and therefore, Mr Rowe was considered to be permanently unfit as a Locomotive Driver;

(d) due to ongoing symptoms, he would not be fit to work in any position within the rail safety environment;

(e) as a result of concentration difficulty, he would not be fit for office-based duties away from the rail safety environment.” 36

[21] Although Ms Clarke concedes that is likely Mr Rowe did not know in detail of what was going to be discussed with him before he attended the meeting 37, she noted that his anxiety increased in the days leading up to the meeting and assumed this was because “we were going to be meeting formally and what that meant”38. Her evidence shows that she thought he had some insight about the meeting;

“MR ROWE: So it was just my anxiety about not receiving the written medical reports?---I think it was your anxiety - I can only make an assumption - I took it that it was your - I took it that it was your anxiety around - leading up to - that we were going to be meeting formally and what that meant. I think, from what I took, it was broader than just not receiving the medical information, you were generally concerned for your future and you - I take that from comments that you were making to me around the, “I know I’m going to get ‘Don’t Come Monday’,” and those sort of statements. Also around the email that you read - you wrote to us saying, “I don’t to” - about the negative outcome that you thought would happen, so that’s just my take on it, I don’t know - I guess, you can comment on your state of mind”. 39

[22] While Ms Clarke did most speaking in relation in the first part of the meeting, she invited Mr Rowe to bring forward information. 40

[23] While Mr Rowe contested the implications of the findings of the medical reports, he concedes these views of V/Line were put to him 41. In relation to the meaning of the reports, Mr Rowe told V/Line in this first part of the meeting that Dr Newlands had supported his return for work, and that his own general practitioner had cleared him for duty42. Mr Rowe also requested that V/Line continue his employment indefinitely as he thought he may be able to return to work.43

[24] Ms Clarke’s evidence is that she and Mr King rebutted these contentions in the meeting, advising Mr Rowe that Dr Newland’s report was in the context of a workers’ compensation claim, and that in any event it pre-dated the medical reports provided by Drs Felman and Turnbull 44.

[25] Having discussed these issues and presented to Mr Rowe the nature of its understanding of his medical condition as applied to his working capacity, there was a break in the meeting and Ms Clarke and Mr King left the room in order to consider what had been discussed to that point 45.

Meeting 7 December – 1st Break

[26] During the break, the two managers met with several others including the general managers of operations and HR to discuss what had transpired 46. Ms Clarke’s evidence is that the managers used the break to consider what had been put to Mr Rowe and his response. Ms Clarke’s evidence is there was a consensus on the part of the managers involved in these discussions to proceed with Mr Rowe’s termination from employment47. In the course of the break, Ms Clarke believes that some of the managers consulted with the V/Line CEO, although she was not directly involved in the conversation48.

Meeting 7 December – Part 2

[27] Ms Clarke and Mr King returned to the meeting room and again spoke to Mr Rowe and let him know that he would be dismissed;

“So you went back into the meeting after about 15 or so minutes?---Yes, yes.

And who did most of the speaking at that point?---Again, I did most of the speaking from what I recall at that point and put that to Mr Rowe, and then we talked about - obviously, he was unhappy with that and didn’t agree with our decision. And then (indistinct) some other details.

Right. Did Mr Marotta say anything at that point?---I can’t recall what Mr Marotta to be honest now, there was obviously - yes, I can’t recall what he said at this time.

And having communicated that news - I believe you then broke for a second time, is that right?---We broke then because be (sic) communicated that news to Mr Rowe and then, I guess, we wanted to provide him with the best option to exit, and so that’s when we talked about whether he should retire - there was a financial benefit to him if he took an alternative solution around his - the taxation and what - and there was also some discussion around his long service leave entitlements because Mr Rowe had previously sought an early retirement, I think, around seven years prior. So there was discussion around whether he’d have entitlement to long service leave in his payment. So we had some discussions - the initial information that I’d been given from our payroll area was not correct, so we took on board what Mr Marotta said - because Mr Marotta was saying - was saying that we might not have had things correct, so we took - well, we broke to go and sort out those concerns and seek further advice and clarify that question of entitlements and taxation et cetera. So that’s when we had the second break to do that.” 49

[28] After giving this news to Mr Rowe, there was a second break, after which the managers returned for a third stage of the meeting.

Meeting 7 December – Part 3

[29] The evidence about the third part of the meeting on 7 December includes that there was discussion about Mr Rowe’s termination entitlements 50.

[30] Mr Rowe indicates in his evidence that he was given the alternative of resigning or being dismissed as a result of the company’s views, and that he refused to resign 51. In response to a question to her from Mr Rowe, Ms Clarke related the following in her evidence about whether an ultimatum was put to the Applicant about his future;

“Okay. Thank you, Mr (sic) Clarke. In the meeting - I’ll move on now to the meeting of 7 December, if I can. The evidence - let me rephrase that - in the meeting of 7 December, was an ultimatum put to Mr Rowe to the effect of “Resign or be fired”?---No, that’s incorrect. On the meeting once we had advised Mr Rowe that the outcome of the meeting was going to be termination, we put - we put some alternatives to him for the best interests of - I guess, his financial situation, and if he would like to consider alternatives around retiring or resigning if there was a financial benefit to him to do so. So that was following, obviously, the outcome that had been delivered. We considered those alternatives just in his best interest”. 52

[31] Ms Clarke indicated that the third part of the meeting instead comprised of the management representatives confirming with Mr Rowe the fact of the termination and the payments that would be made to him 53.

[32] Following the meeting on 7 December, Mr Rowe was provided with a letter of termination and paid various entitlements, including a payment of five weeks payment in lieu of notice and for accrued annual and long service leave. The letter of termination sent by V/Line makes the following references;

“As discussed, Dr Stuart Turnbull, V/Line Chief Medical Advisor and Dr Dielle Felman, Psychiatrist are of the opinion that you are unfit to perform any duties (including categories 1 - 4) in accordance with the Code of Practice for Health Assessment of Rail Safety Workers - 1 July 2004.

V/Line has considered whether there are any alternative positions available within V/Line that may be suitable for your skills and experience. However, in light of the medical restrictions set out above, V/Line has concluded that there are no suitable positions available for you within V/Line.” 54

LEGISLATION

[33] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (“the Act”), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[34] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier.

(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)

[35] V/Line’s submission is that it had a valid reason for the termination of Mr Rowe because the medical advice it had received was that Mr Rowe was the unfit to perform his pre-injury role and/or any other role within the company.

[36] Mr Rowe’s submissions and the evidence of the medical reports include that he held some hope that he may be able to rehabilitate if he was able to be retrained in the alternative duties 55. Mr Rowe also saw himself as having a prospect for an improvement in his symptoms.56

[37] The submissions and evidence refer to the “rail safety environment”, which, in summary is a reference to those parts of V/Line’s operations in which only trained and assessed personnel may work. Associated with the rail safety environment there is plainly some degree of exposure to moving plant. Employees working within the rail safety environment have varying degrees of categorisation and require different levels of training in order to work within the environment.

[38] V/Line’s submissions include that it does not have any positions outside of the rail safety environment that would be suitable for Mr Rowe. V/Line particularly refers to the findings of Dr Turnbull;

• Firstly, that he considers “that Mr Rowe is not fit for any work within the rail safety environment Category I, Category II or Category III at present. As advised in my response to Question 2, I consider he is permanently unfit as a locomotive driver and I consider that he is presently unfit for all other rail safety work”; and



• secondly that he considers Mr Rowe to also “not be fit for office-based duties away from the rail safety environment” and that he considers Mr Rowe “would not be fit presently for office-based work”. 57

[39] In summary, V/Line submit that, based upon the medical evidence and the company’s assessment of the available work, there was no prospect of Mr Rowe returning to work of any type.

[40] V/Line rejects the proposition that Mr Rowe could or should have been assigned to other duties and specifically it argues that;

“8. It is uncontested that the Applicant had no capacity to work from December 2010 to December 2012. To commence the Applicant on alternative duties or consider him for an alternative position as part of return to work plan would have been against medical advice.

9. At all times over the 2 year period from December 2010 to December 2012 the medical evidence was that the applicant was currently unfit to work in any capacity at V/Line and was unlikely to change in the foreseeable future. ...” 58

[41] The decision taken by V/Line in respect of Mr Rowe amounts to a declaration by them that he is unable to perform the inherent requirements of his position. An inherent requirement is something that is essential to the position; and an employer cannot create an inherent requirement by stipulating something that is not essential 59. In this regard, determination of the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement60.

[42] The question of what are the inherent requirements of a particular position was considered in detail by the Full Bench in the matter of J Boag and Son Brewing Pty Ltd v Button 61. The case concerned an employee who was placed on a restricted duties plan as a result of a private health circumstance, and in particular was required to not lift anything over the weight of 5 kg. Some months after the original notification, the employee’s treating surgeon advised the employer that the restriction would be indefinite. The evidence before the Tribunal in first instance was that the employee’s duties had been altered by the company at his request for assistance. In its consideration of the matter upon appeal, the Full Bench found that the assessment of whether a person is able to perform the inherent requirements of their position is an assessment of their capacity to perform the duties of their substantive position or role rather than modified or restricted duties or those of a temporary alternative position;

[20]The Senior Deputy President found that there was no valid reason for Mr Button’s dismissal:

“[54] As I have indicated, almost universally, if a person cannot perform the inherent requirements of his or her position there will be a valid reason for the termination of that person’s employment simply because he or she is unable to perform the role for which the employment contract provides. However, as I have said, this case is unusual.

[55] It was put on behalf of Mr Button that he was able to perform and did perform the inherent requirements of his job because Boags had altered those requirements when it arranged, through Mr Jensen, for assistance to be provided to Mr Button, as required. He, and his team, worked in that manner for over eight months. Given my finding that Boags knew that Mr Button’s condition was long term, there is validity in that submission. The inherent requirements of the position, as performed by Mr Button since at least October 2008, did not necessitate that he perform work beyond his restrictions. Accordingly, there could be no valid reason for the termination based on Mr Button’s capacity. I also find that Mr Button’s incapacity had no adverse impact on the safety or welfare of his team members.

If I am wrong as to that, I would nevertheless find that there was no valid reason for the termination. If the inherent requirements of the position included the work that Mr Button was not able to perform, he had been satisfactorily performing his work with the willing assistance of his team members. Nothing had changed in that regard (other than the reluctance of Boags’ insurer to continue to cover Boags in respect of Mr Button) and yet his employment was terminated. In those circumstances, I would conclude that there was no valid reason for the termination of Mr Button’s employment.

[56] There being no valid reason for the termination leads me to conclude that Mr Button’s dismissal was harsh, unjust and unreasonable.”

[21]The Senior Deputy President found that there was no valid reason for the dismissal of Mr Button on the basis of an inability on the part of Mr Button to perform the inherent requirements of his job. The Senior Deputy President proceeded on the basis that Mr Button was able to, and had been, performing the inherent requirements of the restricted duties in which he had been working since October 2008. This conclusion involved error.

[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.

[23]In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992(Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[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.”

[24]Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:

“[124] The phrase “inherent requirements” has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

“A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.” [ibid. at 295]”

[25]In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.” Her Honour noted:

“[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas’ international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as “the characteristic tasks or skills required in being a pilot”, as did Marshall J in the Full Court, is to overlook its international character.

[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”

[26]Gaudron J also noted that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.

[27]McHugh J drew attention to the distinction between an employee’s job and their position:

“[72] In my opinion, however, there is a distinction between a person’s job and a person’s position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term “a particular job” in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean “a specific and definable job, function or task” and its “inherent requirements” those “required by the characteristics of the particular job”[66]. A person’s job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term “job” is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person’s position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person’s position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.

[73] In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between “a particular position” and “a particular job”. In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the “job” of President if that term refers to the work done by the President.”

[28]McHugh J endorsed the proposition that “whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.” (references omitted)

[43] As context to the matters decided in these cases;

• Boag and Son v Button involved, at least on the contentions of the Applicant in that matter, a question of whether or not the modified duties that Mr Button was performing were the reference point to which an assessment of his capacity to perform the inherent requirements of his role 62;



• Christie v Qantas involved the dismissal of a 60-year-old international airline pilot on the basis that many countries prohibit pilots over 60 years of age from flying in their airspace 63;



• X v Commonwealth involved the dismissal of a soldier from the Australian Defence Force because he had tested positive to HIV and it was argued that the soldier was unable to bleed safely in the field without risking the infection of his fellow soldiers 64; and



• the Hail Creek circumstances involved an application by the employer to not be bound to give preference in employment to certain employees because they were unsuitable for positions with the employer, with the meaning of “suitable” including a contention the employee was capable of performing the inherent requirements of the position 65.

[44] The matter before the Commission in this instance includes an argument advanced by Mr Rowe that he may well have been able to be redeployed to perform unspecified alternative duties. 66

[45] I have considered all of the material before me in relation to the duties that Mr Rowe has performed during his working career with V/Line, as well as the evidence provided by the company about the limitations it had around the provision of duties to him within the “rail safety environment”.

[46] I have also taken into account that the medical evidence available to V/Line indicates very clearly that not only is there no likelihood of Mr Rowe returning to work within the rail safety environment, but that also the medical advice to V/Line is that Mr Rowe could not be considered for reassignment to office-based duties away from the rail safety environment. In this regard Dr Turnbull’s advice, as referred to above was that since he noted Dr Felman’s report that Mr Rowe continued to suffer concentration difficulties he would consequently have concerns about Mr Rowe returning even to an office job. I note that in forming this view, Dr Turnbull took into account the advice Mr Rowe gave to Dr Felman that he was unable to read as a result of his concentration difficulty. 67

[47] I have also taken into account Mr Rowe’s submissions that his own treating psychiatrist had “supported my return to work verbally on 6/12/12” and that “he would support a structured return to work plan and that the next certificate of capacity would reflect just that” 68. The Applicant makes the point that the later certificates he actually provided to V/Line reflected that his post-traumatic stress disorder symptoms have escalated, given his dismissal.69

[48] I have also considered the submissions Mr Rowe has made about medical reports and capacity certificates from Dr Taylor (engaged by Mr Rowe) and Dr Newlands (engaged in relation to his workers compensation claim).

[49] Mr Rowe submits, in relation to Dr Taylor, that in the meeting with V/Line on 7 December 2012 Mr Rowe told the V/Line managers that Dr Taylor would support a structured return to work plan and that the next certificate of capacity would support that 70. The evidence indicates, that at the time V/Line made its decision to terminate Mr Rowe such advice was not before V/Line, other than the verbal assertion of Mr Rowe. The submission, in any event invites a departure from a consideration of whether Mr Rowe had the capacity to perform the inherent requirements of his job as it was at the time of termination. Instead, the submission invites consideration of whether Mr Rowe might be able to perform some other set of duties. This is not an appropriate consideration in relation to these proceedings, (which concern whether or not there was a valid reason for termination), which stand in distinction from the issues which might be before a workers’ compensation authority (which might be required to consider the terms upon which a rehabilitation plan could be developed).

[50] Mr Rowe submits in relation to a report prepared by Dr Newlands that it ought be admitted into the evidence in these proceedings and that it forms part of the material V/Line took into account to make its decision 71. The admission of this report into evidence was contested by V/Line, principally for the reason Dr Newland’s report was prepared for a purpose outside the Act72 and that the provisions of the Accident Compensation Act 1985 (Vic) do not allow any party to rely upon the document for a purpose outside of that Act 73.

[51] I do not consider it necessary to determine the admissibility of Dr Newlands’ report in these proceedings for the reason the evidence shows Dr Felman knew of, and had regard to Dr Newlands’ report in her September 2012 review of Mr Rowe 74. The evidence is that V/Line sought and relied upon the medical opinions of Drs Felman and Turnbull and that the opinions of Dr Newlands were included in the process.

[52] V/Line was entitled to rely upon, and plainly did rely upon, the medical opinions of Drs Felman and Turnbull. While it may be contended that Dr Newland’s report forms part of the material V/Line took into account in order to make its decision, the evidence shows that V/Line relied upon the reports of Drs Felman and Turnbull, which it was entitled to do. The role of the Commission in this instance is not to “stand in the shoes” of V/Line in its decision-making but to instead assess whether or not the termination of Mr Rowe was for a valid reason 75.

[53] Had Drs Felman and Turnbull not had available to them or considered Dr Newlands’ report, it might be said that V/Line should have separately considered Dr Newland’s report when it came to decide on Mr Rowe’s future. However, that consideration does not arise when the evidence shows the report was taken into account by Dr Felman in forming her views.

[54] Notwithstanding these submissions of Mr Rowe, and even making allowances for the understandably negative impact his dismissal may have had on him, the evidence before the Commission does not allow a finding that there was a prognosis for Mr Rowe’s return to work at any time in the near future or in any proximity to the duties which form the inherent requirements of his role.

[55] Mr Rowe’s job was that of a locomotive driver and his duties are those of operating heavy locomotive machinery in order for V/Line to provide to its customers and its regional train services. In effect, the inherent requirements of the job were to work within the rail safety environment, driving a locomotive train. There is no evidence before me in these proceedings that Mr Rowe ever performed any other duties. As a result, the argument does not arise that there could be an easy and fair accommodation of his wishes to be retrained by excising from his job those duties which caused, or had the potential to cause, distress or anxiety.

[56] The question of whether Mr Rowe might have been able to perform some other role is not strictly required to be addressed, for the reason 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 76.

[57] I have also had regard to the distinction made by McHugh J. in Qantas v Christie regarding the difference between an employee’s job and their position 77 and that the inherent requirement of the position in that was the capacity (physically, mentally and legally) to fly to any part of the world, and not a set of destinations accommodated by the combination of the pilot’s age and the destinations that would accept him78.

[58] Mr Rowe’s position, in the sense of the level or rank from which he performs his tasks, was that of a general locomotive driver. There was no evidence before me that would indicate his position was anything other than general, and not limited by class of locomotive or destination. Further, the evidence in the form of the medical report from Dr Turnbull is clear – Mr Rowe is not only permanently unfit as a locomotive driver and all other rail safety work, but also all office-based work.

[59] Mr Rowe is critical of V/Line’s failure to call Dr Turnbull to give evidence in these proceedings 79.

[60] I decline to draw an adverse inference in relation to this decision of V/Line. Dr Turnbull’s written report is very plain and it is not possible to draw the inference from the face of the document that, had he been called to give evidence, his evidence would not have assisted V/Line 80. While it is the case that the absence of a satisfactory explanation for evidence not being called when a fact is in issue may lead to an inference that the evidence would not assist the party who was in a position to call evidence81, it is not the case that an inference could be confidently drawn in Mr Rowe’s favour because of the failure to call Dr Turnbull as a witness82. There is not a sufficiency of evidence elsewhere in the material before me to conclude that the provision of oral evidence by Dr Turnbull would contradict his written report.

[61] I note that each party had the opportunity to seek an order from the Commission requiring the attendance of Dr Turnbull, or any other medical practitioner, in order to give evidence, but did not do so.

[62] The statutory consideration involved with this matter is whether there was a valid reason for Mr Rowe’s dismissal related to his “capacity or conduct (including its effect on the safety and welfare of other employees)”. It is well established that the question of whether there is a valid reason is a test for a reason that is “sound, defensible or well founded”, and one that is not “capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason” 83

[63] I find that at the time of his dismissal, Mr Rowe did not have the capacity to perform the duties he was employed to do and that, on the objective facts know to V/Line, there was not a prospect of him being able to perform his duties again.

[64] As a result, I find there was a valid reason for Mr Rowe’s dismissal.

(b) whether the person was notified of that reason

[65] I find that the applicant was notified of the reason for his dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[66] In contention between the parties is whether Mr Rowe was given sufficient notice of the medical reports which had been prepared about him, but not supplied to him or his own medical advisers until very close to the meeting on 7 December 2012.

[67] V/Line argue that it was constrained from providing the medical reports of Dr Felman and Dr Turnbull directly to Mr Rowe or his medical advisers because neither doctors Felman or Turnbull had given consent to the release of the medical reports until after they were received 84. V/Line also argues that once it had received such consent it endeavoured to provide the documents to Mr Rowe’s medical practitioner, eventually succeeding on 5 December 2012.

[68] In actuality, Drs Felman and Turnbull had provided consent for the release of their September and October 2012 medical reports;

• Dr Felman’s report states that she recommends “that if Mr Rowe requests a copy of this report that it be released to him through his treating practitioner” 85; and



• Dr Turnbull’s report states (with reference to the report itself) “please note that I am happy for a copy of this to be released to Mr Rowe through his treating general practitioner 86

[69] V/Line’s closing submissions in relation to the exercise of the company’s obligations to provide Mr Rowe with an opportunity to respond to the matters it said related to his capacity to continue in employment were as follows;

“11. The Respondent has had the benefit of the decision of Birdi v Rail Corporation New South Wales T/a RailCorp (“Birdi”) and has drawn learnings from the case, most noticeable that the Respondent in that matter, RailCorp, afforded Mr Birdi the opportunity and a period of time to provide a written response to RailCorp’s decision to terminate on medical grounds.

12. The Respondent acknowledges the precedent set by this case and acknowledges that the Respondent should have had a greater opportunity to respond in more detail to the medical evidence that supported the valid reason that he was permanently unfit.” 87

[70] In the matter of Birdi 88, referred to by the Respondent, the Applicant was a train guard whose employment was terminated after medical advice that he was unable to perform the inherent requirements of his job89. While the matter was subject to an application for appeal by the Applicant, the tribunal did not grant permission to appeal90. In considering his application for unfair dismissal, the tribunal at first instance, comprised of Harrison C., noted the following opportunities had been afforded to the Applicant to demonstrate his capacity for work;

[14]Following the Applicant’s failure to attend the appointments, Dr Casolin reviewed the matter and determined he was unfit to be employed as a train guard and recommended medical retirement.

[15]In recommending medical retirement, Dr Casolin noted the Applicant had suffered at least three acute and prolonged episodes over the past eleven years and when assessed in 2009 and 2010 he had residual symptoms and was unable to successfully return to work.

[16]The Applicant was advised that no decision had been made in relation to the recommendation and was directed to attend a meeting on 14 March 2011 to discuss the situation. On 8 March, the Applicant advised he would not be attending the meeting.

[17]The Applicant was then provided a period of 21 days in which to:

• Provide in writing, a signed and dated letter indicating that you understand and accept the decision of termination on medical grounds within 21 days of receipt from this letter.

OR

• Provide in writing, a submission outlining any viable redeployment options or alternatives to termination on medical grounds that you wish to be considered prior to any final decision being made within 21 days of receipt from this letter.

[71] While acknowledging V/Line’s desire to follow what it understood to be the professional preferences of Drs Felman and Turnbull and not provide reports to Mr Rowe without their consent, what was done was not appropriate practice in a case such as this, where the report will be used to make decisions about the Applicant’s employment. In any event the reports do not say consent is not given. There is nothing in either report which should have been kept from Mr Rowe and the reports should have been provided at the earliest opportunity. He was entitled to know what the reports contained either in order to obtain an independent opinion or to know what was being recommended about him.

[72] Despite this, the evidence shows that by the time of the meeting on 7 December, Mr Rowe’s medical practitioner had been provided with the reports of Drs Felman and Turnbull 91; and that Mr Rowe had some insight into what was to be discussed in the meeting, as had his union representative92. The evidence also shows that the company’s reasons for termination were identified to Mr Rowe in the 7 December meeting93 and that he and his union representative had the opportunity in the meeting to put forward such response as they considered appropriate94. The evidence also discloses that Mr Rowe in fact did respond to the company’s reasons for termination in the meeting of 7 December and that the company considered his response.

[73] On balance, I am satisfied that V/Line gave Mr Rowe, at the meeting of 7 December, an opportunity to respond to the reasons it held for his termination.

[74] A further matter that arose in the hearing in relation to whether or not Mr Rowe was afforded procedural fairness, was a request he made of the company to postpone the meeting from 7 December. The evidence is that the company considered Mr Rowe’s request and refused it believing that it would be in Mr Rowe’s best interests to continue with the meeting as scheduled 95. After consideration of all of the material before me, I am satisfied it was appropriate for the company to proceed to convene the meeting it had established, noting that meeting dates had already been moved once in order to accommodate the availability of Mr Rowe’s union representative.

(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;

[75] The evidence in this matter is that Mr Rowe was afforded an opportunity to have a representative for support person present in the meeting on 7 December 2013 and that he had access to their advice and assistance in the course of the meeting.

[76] Mr Rowe contends that firstly he was prevented from responding in the meeting and that his union representative was also not given an opportunity to respond on his behalf 96. These contentions are not consistent with the evidence provided in the hearing. Mr Rowe’s evidence and that of Ms Clarke indicate that Mr Rowe was given an opportunity to speak in the meeting and that the company took what he had said into account. The evidence also indicates that the union representative, Mr Marotta, was at the meeting and was able to advise Mr Rowe97. A balanced reading of the evidence in these regards indicates that Mr Rowe’s concern may be more to do with a perceived lack of contribution on the part of his representative rather than the inability of the representative to contribute.

[77] The Full Bench has recently held that in respect of s.387(d) of the Act, the refusal of an employer to allow the attendance of a person as an advocate is not be regarded as constituting an element of procedural unfairness 98. The Full Bench noted that instead, the obligation cast by the section is to allow the attendance of a support person to assist at any discussions relating to dismissal.

[78] I am satisfied that V/Line met the obligations they had to Mr Rowe in order to satisfy s.387(d) of the Act.

(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

[79] This matter is not related to an allegation of unsatisfactory performance of the applicant and so this criterion does not require consideration.

(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

[80] The evidence includes that V/Line is a large and sophisticated employer. There is no evidence which would indicate that the size of the employer’s enterprise impacted on the procedures the company followed in effecting the dismissal.

(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;

[81] The evidence includes that V/Line had available to it dedicated human resource management expertise in effecting the dismissal, so again this criterion does not require consideration.

(h) any other matters that the FWC considers relevant.

[82] I do not consider that there are any other relevant matters to be taken into account.

[83] The foregoing indicates that V/Line had, at the time of termination, a valid reason for Mr Rowe’s dismissal related to his capacity. V/Line took into account that this reason extended beyond Mr Rowe’s capacity to undertake his own tasks and that it had the potential to effect the safety and welfare of other employees. While there were some failings on the part of the company to afford Mr Rowe an opportunity to respond to the reason it held, those had been corrected by the time that Mr Rowe met with V/Line on 7 December 2012, and he was allowed the opportunity to attend the meeting with his union representative and to put such matters forward in the meeting as he saw fit. On balance, I am satisfied that Mr Rowe was given an opportunity to respond to V/Line’s reasons for termination in the meeting on 7 December.

[84] As a result of the foregoing analysis, I am satisfied that the dismissal of Mr Rowe from employment with V/Line Pty Ltd was neither harsh, unjust or unreasonable and as a consequence he was not unfairly dismissed.

[85] As a result of this finding, I dismiss Mr Rowe’s application and an Order to that effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr K Rowe on his own behalf

Mr R Murphy for V/Line Pty Ltd

Hearing details:

2013.

Melbourne:

13 November 2013

Final written submissions received 18 December 2013

 1   Transcript, PN 998 – 1007

 2   Application for Unfair Dismissal, Form F2, item 1; Employer Response, Form F3, item 1

 3   Transcript, PN 1125

 4   Applicant’s Outline of Submissions, Exhibit A1 paras 6-7

 5   Ibid, para 1

 6   Statement of Joanne Clarke, Exhibit R2, para 5

 7   Ibid, para 6

 8   Ibid

 9   Ibid, para 7

 10   Ibid, para 9

 11  Ibid, Attachment JC-1, report of Dr Felman, 1 October 2011

 12   Ibid, para 9

 13   Ibid, para 10

 14   Ibid, para 13

 15   Ibid, para 6

 16   Ibid, Attachments JC-3 (Felman, 21 September 2012), JC-4 (Turnbull, 10 October 2012)

 17   Ibid, Attachment JC-3 (Felman, 21 September 2012), pp 5-6, JC 3; 6.0

 18   Ibid, Attachment JC-4 (Turnbull, 10 October 2012), p3

 19   Ibid, Attachment JC-4 (Turnbull, 10 October 2012), pp 2-3

 20   Respondent’s Outline of Submissions, Exhibit R1, para 18; Clarke, Attachment JC-6

 21   Statement of Joanne Clarke, Exhibit R2, Attachment JC-6

 22   Applicant’s Outline of Submissions, paras 17-24

 23   Statement of Joanne Clarke, Exhibit R2, para 15

 24   Transcript, PN 1979 - 1985

 25   Statement of Joanne Clarke, Exhibit R2, para 17

 26   Ibid, para 20

 27   Transcript, PN 1404 - 1407, PN 1792

 28   Transcript, PN 1250

 29   Transcript, PN 1788; and in proceedings before Cribb C, Transcript PN 477

 30   Transcript, PN 1115, 1121

 31   Statement of Joanne Clarke, Exhibit R2, Attachment JC-3 (Felman, 21 September 2012), paras 18-19

 32   Transcript, PN 1385, 1535, 1758

 33   [2013] FWC 5415

 34   Statement of Joanne Clarke, Exhibit R2, para 24

 35   Ibid, para 25

 36   Ibid, para 26

 37   Transcript, PN 1999

 38   Transcript, PN 1787

 39   Transcript, PN 1788

 40   Transcript, PN 2000-2002

 41   Transcript, PN 1107

 42   Statement of Joanne Clarke, Exhibit R2, para 27; Transcript, PN 2002-2005

 43   Ibid, para 29

 44   Ibid, para 28

 45   Transcript, PN 1748, 1988, 2008

 46   Transcript, PN 1748

 47   Transcript, PN 2015

 48   Transcript, PN 2014

 49   Transcript, PN 2016-2019

 50   Transcript, PN 2021

 51   Transcript, PN 1111

 52   Transcript, PN 1408

 53   Transcript, PN 2021

 54   Statement of Joanne Clarke, Exhibit R2, Attachment JC-6

 55   Statement of Joanne Clarke, Exhibit R2, Attachment JC-3 (Felman, 21 September 2012), p 4 and 6

 56   Applicant's Outline of Submissions, para 16

 57   Statement of Joanne Clarke, Exhibit R2, Attachment JC-4 (Turnbull, 10 October 2012)

 58   Respondent’s Closing Submissions, paras 8-9

 59   Qantas Airways Ltd v Christie (1998) 193 CLR 280, per Gaudron J at [34]

 60   Ibid, per McHugh J, at [72]; Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354, at [124]

 61  [2010] FWAFB 4022, (2010) 195 IR 292 at [22]

 62   [2010] FWAFB 4022, at [20]

 63   Qantas Airways Ltd v Christie (1998) 193 CLR 280, see [7] and [26]

 64   X v Commonwealth, (1999), 200 CLR 177, see [7], [13] and [72]

 65   Hail Creek Coal Pty Ltd v CFMEU, see [6] and [122]

 66   Applicant’s Closing Statement and Response to Respondent’s Outline of Submissions, 29 November 2013, para 48.

 67   Statement of Joanne Clarke, Exhibit R2, Attachment JC-4 (Turnbull, 10 October 2012), pp2-3

 68   Applicant's Closing Statement and Response to Respondent's Outline of Submissions, 29 November 2013, para 14

 69   Ibid

 70   Applicant's Closing Statements and Response to Respondent's Outline of Submissions, 29 November 2011, para 14

 71   Ibid, para 20-22

 72   Transcript, PN 1214

 73 Respondent's Outline of Submissions, para 20 – 22; see Accident Compensation Act 1985 (Vic), s.242A

 74   [2013] FWC 5415, at [9]; see also Statement of Joanne Clarke, Exhibit R2, Attachment JC-3 (Felman, 21 September 2012), pp 1 – 2

 75   Miller v University of New South Wales [2003] FCAFC 180, see [64] - [69]

 76   Boag v Button, at [22]

 77   Qantas v Christie, at [72]

 78   Ibid, at [86]

 79   Applicant's Closing Statements and Response to Respondent's Outline of Submissions, 29 November 2011, para 26

 80   Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298

 81   Maria-Anna Owens v Allied Express Transport Pty Ltd, [2011] FWA 1058, at [14]

 82   Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited, [2014] FWFCB 657, at [67]

 83   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373

 84   Transcript, PN 1370 – 1375, 1543

 85   Statement of Joanne Clarke, Exhibit R2, Attachment JC-3 (Felman, 21 September 2012), p 6

 86   Statement of Joanne Clarke, Exhibit R2, Attachment JC-4 (Turnbull, 10 October 2012), p 3

 87   Respondent's Closing Submissions, 16 December 2013, paras 11 – 12

 88   [2011] FWA 7728

 89   Ibid, at [25]

 90  [2012] FWAFB 1404, at [18]

 91   Transcript, PN 1385, 1535, 1758

 92   Transcript, PN 1761, 1788, 2059

 93   Statement of Joanne Clarke, Exhibit R2, para 26

 94   Transcript, PN 1110, 1247

 95   Transcript, PN 1406 – 1407, 1792

 96   Applicant's Outline of Submissions, paras 18 – 24; Closing Submissions para 29

 97   Statement of Joanne Clarke, Exhibit R2, paras 29-30; Transcript, PN 2018-2019

 98   Victorian Association for the Teaching of English Inc v Debra de Laps, [2014] FWCFB 613, at [52]

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