Keys v Sydney Night Patrol and Inquiry Co Pty Limited T/As SNP Security

[2015] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEYS v SYDNEY NIGHT PATROL AND INQUIRY CO PTY LIMITED T/AS SNP SECURITY [2015] FCCA 776

Catchwords:
INDUSTRIAL LAW – Refusal to offer employment – whether related to a compensable injury or a rehabilitation programme considered – whether a cardio fitness test indirectly discriminated against the applicant on account of a disability or age considered.

Legislation:
Fair Work Act 2009 (Cth), ss.340, 342, 351, 550
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases cited:
Stephen Keys v Comcare [2013] AATA 782

Applicant: STEPHEN KEYS

First Respondent:	SYDNEY NIGHT PATROL AND INQUIRY CO PTY LIMITED T/AS SNP SECURITY
File Number:	CAG 10 of 2014

Judgment of: Judge Driver

Hearing dates: 1 and 2 April 2015

Delivered at: Sydney, via telephone to Canberra

Delivered on: 30 April 2015

REPRESENTATION

Counsel for the Applicant: Miss J Keys

Counsel for the Respondent: Mr R S Warren

Solicitors for the Respondent: Moray & Agnew Lawyers

ORDERS

1. The application filed on 28 February 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 10 of 2014

STEPHEN KEYS

Applicant

And

SYDNEY NIGHT PATROL AND INQUIRY CO PTY LIMITED T/AS SNP SECURITY

First Respondent

REASONS FOR JUDGMENT

Introduction and background

1. By application and accompanying Form 4 filed on 28 February 2014, the applicant, Mr Keys, claims relief under the Fair Work Act 2009 (Cth) (Fair Work Act) against the respondent, SNP. The matter was originally allocated to the docket of Judge Neville but subsequently transferred to my docket.

2. The proceedings were originally commenced also against the general manager of CRS Australia (CRS) and three individual respondents were later added.  On 13 February 2015 I summarily dismissed the proceedings against all respondents other than SNP.

3. Mr Keys claims that:

   a)SNP took “adverse action” against him because he had a role or responsibility under Part III of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), in contravention of s.340(1) of the Fair work Act;

   b)SNP took “adverse action” against him because CRS had exercised a role or responsibility under Part III of the SRC Act for Mr Keys’ benefit, in contravention of s.340(2) of the Fair Work Act;

   c)SNP took “adverse action” against him because of a physical or mental disability imputed to him, contrary to s.351(1) of the Fair Work Act;

   d)SNP took “adverse action” against him because of his age, contrary to s.351(1) of the Fair Work Act;

   e)SNP took “adverse action” for the reasons specified at (a), (b), (c) and (d) above, in the following circumstances:

   i)on 10 February 2012, SNP, as a prospective employer, refused to employ Mr Keys, who was a prospective employee; and/or

   ii)SNP, as a prospective employer, discriminated against Mr Keys, who was a prospective employee, in the terms and conditions on which SNP offered to employ Mr Keys, specifically requiring that Mr Keys participate in a physical assessment on 2 February 2012; and

   f)CRS, as Mr Keys’ rehabilitation provider under Part III of the SRC Act, was involved in the contraventions of ss.340(1) and 351(1) of the Fair Work Act described at (a), (b), (c), (d) and (e) above, and is taken to have contravened those provisions pursuant to s.550 of the Fair Work Act.

4. The claim is resisted by SNP. 

The pleadings and evidence

1. Mr Keys relies upon a second further amended statement of claim filed on 2 March 2015.  He relies upon two affidavits, the first made by him on 10 March 2015 (with a folder of documents exhibited to it) and the second adopted by him in the witness box on 1 April 2015.  He was cross-examined on his affidavits.  Paragraphs [3]-[4] of the second affidavit are relevant only in relation to costs reserved in respect of my summary dismissal of the claim against the other respondents.

2. SNP relies upon its further amended defence filed on 13 March 2015 and the affidavit of Tamara Iselt made on 27 March 2015 and the annexures thereto.  Ms Iselt was cross-examined on her affidavit.

3. I also received the following additional exhibits:

   ·A1 – Pre-Employment Assessment Procedure Manual;

   ·A2 – SNP Security website printout;

   ·A3 – email from J Taylor to A Buckman, 27.01.2012;

   ·A4 – three emails from J Taylor;

   ·A5 – Recruitment checklist folder.

4. The parties made oral submissions on 2 April 2015.

Consideration

1. Mr Keys sustained a psychological injury[1] in 2008 in the course of employment in the public sector.  He made a claim for workers compensation under the SRC Act and his employment was terminated on 22 April 2009.  Mr Keys succeeded before the Administrative Appeals Tribunal (AAT) in his claim for compensation under the SRC Act.

   [1] Described as an “adjustment reaction with mixed emotional features”

2. After his workers compensation claim was determined favourably, Mr Keys underwent a programme of rehabilitation with CRS.  It appears that Mr Keys was interested in, and was assessed as suitable for, work in the security industry.  I accept from the evidence of Mr Keys that in late 2011 or early 2012 he was referred by CRS to SNP for consideration of employment with SNP.  In an email between CRS and SNP on Friday, 13 January 2012 the possibility of a “work trial” was raised by CRS.  Properly understood, that email raised for consideration by SNP, the possibility of Mr Keys being employed on a trial basis, apparently at no cost to SNP.  That email does not, however, establish that any offer of employment was made by SNP or that a “work trial” had been put in place. 

3. What is clear, from the evidence of both parties, is that SNP arranged for Mr Keys to attend a “group assessment” on 25 January 2012 and a “functional assessment” on 2 February 2012.  Unfortunately, Mr Keys failed the functional assessment.

4. I accept the following from the evidence of Ms Iselt[2]:

   [2] [12]-[16]

   Functional assessments are a requirement for front-line security roles to determine whether the applicant can safely undertake the requirements of the role.  If an applicant cannot pass the functional assessment the applicant’s application for employment is not progressed further.

   In the ACT, functional assessments are arranged through Konekt. Konekt assesses individuals against those requirements and advises the Respondent as to whether the individual is able to safely perform the role.

   The Applicant was functionally assessed on 2 February 2012 by Konekt’s then employee, Hannah Bingham-Wallis, an occupational therapist. Ms Bingham-Wallis produced a written report which was then facsimiled to the Respondent’s Fiona McGivern (Ms McGivern is no longer employed by the Respondent).  As noted on the coversheet of the facsimile “testing deemed the Applicant as being at risk”. At page 18 of the report it is stated that the candidate is “Unfit-recommend to discontinue in recruitment process. “Further, the report included opinions that the Applicant:

   (i)Was ‘unfit – recommended discontinue in recruitment process; and

   (ii)Had ‘diabetes, high BP and high cholesterol’; and

   (iii)Was ‘restricted to no strenuous cardiovascular activity/lifting due to heart rate exceeding max heart rate. Benefit from improving cardiovascular fitness and strength. Cont BP monitoring with GP’.

   Upon receipt of the functional assessment test, Ms McGivern advised the recruiter of the result. It is then apparent from the recruitment checklist that Jenna Taylor ended the recruitment process in accordance with the SNP policy which provides that an applicant has to be deemed ‘fit for work’ at the conclusion of the functional assessment, to prove the applicant can perform the essential physical requirements of the role.

   Upon receiving this report the Applicant’s recruitment checklist was marked by Jenna Taylor with a ‘D’ and circled. This marking meant that we were declining to continue with the recruitment process with the Applicant. This is not a discretionary decision. If an applicant is not deemed ‘fit for work’ at the conclusion of the functional assessment their application for employment is discontinued at that point. This was the sole reason that the Respondent declined to continue the recruitment process of the Applicant. An email was then sent by the Respondent’s Tamara Lukash to the Applicant on 10 February 2012 indicating that the Respondent will not be continuing with the Applicant’s application for employment. (attachment references deleted)

5. At [10] of his first affidavit, Mr Keys deposes that on 10 February 2012 he had a meeting with Rachel Graf of CRS at which he told Ms Graf that he did not think he had passed the physical assessment.  He deposes that he stated that he had injured his knee doing aerobic steps and could not do all of the squats and lunging exercises.  He deposes that he told Ms Graf that he had not told SNP this.  Mr Keys deposes that Ms Graf then telephoned someone at SNP (who is not identified) and at the end of that conversation Ms Graf told Mr Keys that he had not passed the medical and that SNP would be notifying him shortly.

6. Later on the same day, Mr Keys received a standard form email letter from SNP telling him that SNP would not proceed any further with his application for employment[3].

   [3] See SK21 to the first affidavit of Mr Keys

7. Apart from a short period of employment with ActewAGL (which ended when Mr Keys fractured a finger) Mr Keys has been unemployed to date and remains in receipt of workers compensation benefits.

8. Mr Keys made a further workers compensation claim in relation to the asserted injury to his knee sustained at the SNP functional assessment but that claim was rejected.  The rejection was confirmed by the AAT on review on 5 November 2013[4].  The AAT did not accept that Mr Keys sustained a knee injury at the functional assessment on 2 February 2012.

   [4] Stephen Keys v Comcare [2013] AATA 782

9. In my opinion, the claim insofar as it relies upon ss.340(1) and 340(2) of the Fair Work Act must fail. The claim is that SNP took adverse action against Mr Keys because he had a workplace right arising out of his compensable injury and his rehabilitation programme. While I accept the possibility that Mr Keys, as a prospective employee, may have enjoyed a workplace right relating to his rehabilitation programme arising from his compensable injury, there is no evidence establishing any adverse action by SNP because of such a right. Relevantly, Mr Keys relies upon Item 2 of s.342(1) of the Fair Work Act. That Item cannot assist Mr Keys, however, first, because SNP made no offer of employment to Mr Keys at any stage and, secondly, because there is not a shred of evidence that SNP’s refusal (if it may be so characterised) to employ Mr Keys had anything to do with his rehabilitation programme or his compensable injury. The evidence establishes that SNP knew or must have known that Mr Keys had been referred by CRS to it and SNP entertained the possibility of employing Mr Keys on the trial basis proposed by CRS. Mr Keys was assessed for potential employment as a security officer in the aviation field (ie at an airport). The employment process was terminated because Mr Keys was assessed as being unfit (and hence unsuitable) for the proposed role but, on any view, that assessment was wholly unrelated to the compensable injury leading to the rehabilitation programme.

10. Mr Keys argues alternatively that SNP took adverse action against him because of a physical or mental disability imputed to him contrary to s.351(1) of the Fair Work Act. He also alleges that SNP took adverse action against him contrary to that section because of his age.

11. As to the first assertion, the disability which Mr Keys asserts was imputed to him was the leg injury he says he sustained at the functional assessment.  There are several problems with that assertion.  The first is that on his own evidence, Mr Keys says that he did not tell anyone at SNP about the alleged injury at the functional assessment.  Secondly, there is no evidence that such an imputed injury had any bearing upon the decision of SNP to terminate the employment process.  Thirdly, the AAT ultimately found that it was not satisfied that Mr Keys had in fact sustained a knee injury at the functional assessment.

12. Mr Keys did disclose to Konekt, the agency conducting the functional assessment for SNP, that he suffered from diabetes, high blood pressure and high cholesterol.  Those conditions were referred to in the report prepared following the functional assessment.  However, Mr Keys was not assessed as having failed the functional assessment because of those conditions.  He failed the functional assessment because his heart rate was excessive in undertaking stepping, squatting and lifting activities.

13. I accept from annexure B to the affidavit of Ms Iselt that demonstrated cardiovascular fitness was a reasonable requirement for the role in which Mr Keys was being considered because the duties of that role required at least moderate physical activity involving standing, lifting and walking.

14. As to the question of age discrimination, Mr Keys was 56 at the time of the functional assessment.  I accept from the evidence of Ms Iselt that SNP counts among its employees numerous persons above that age.  The maximum heart rates permissible in the functional assessment cardiovascular test varied somewhat by age[5].  The differences were marginal, however, and, in my opinion, those differences reflect physical reality rather than any age discrimination.  There was, in my opinion, no indirect discrimination on the basis of age because there is no evidence that persons of Mr Keys’ age were less able to pass the test than younger persons.  Further, there is no suggestion of direct discrimination.

    [5] See exhibit A1 at page 40

Conclusion

1. Mr Keys has failed to establish any of the elements of his claim.  I will, accordingly, order that the application filed on 28 February 2014 be dismissed.

2. I will hear the parties as to all and any issues of costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 April 2015