Lance Pedersen v H.J. Heinz Company Australia Limited T/A Golden Circle Limited

[2010] FWA 8631

[2010] FWA 8631

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lance Pedersen
v
H.J. Heinz Company Australia Limited T/A Golden Circle Limited
(U2010/8936)

COMMISSIONER BISSETT MELBOURNE, 18 NOVEMBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr Lance Pedersen (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by H.J. Heinz Company Australia Limited t/a Golden Circle (Heinz) (the Respondent) was harsh, unjust or unreasonable.

[2] The application was subject to conciliation where it was not settled. It was subsequently referred for arbitration.

[3] The Applicant was represented by Mr Pegg of the National Union of Workers and the Respondent by Mr Merrell.

Background

[4] Mr Pedersen commenced work at Heinz in April 1996 and worked in the sugar plant area for approximately 7 years. He was employed as a Plant Operator’.

[5] Mr Pedersen worked a rolling shift pattern of day, afternoon and night shift.

[6] Mr Pedersen’s employment was covered by the Golden Circle - NUW collective agreement. 1

The evidence and submissions

[7] Extensive evidence and submissions were put on behalf of the Applicant and Respondent. It is not all summarised here but has been considered by me in reaching my decision.

[8] In January 2009 Mr Nolan, the Senior Operator in the sugar plant, sent a note to Ms Candey, the Senior Injury Management Advisor at Heinz, raising issues of concern with respect to Mr Pedersen’s capacity to do his job. These concerns were based on ‘facts’ Mr Nolan had ‘witnessed’. 2 This, along with related matters raised at quarterly reviews, resulted in the first referral of Mr Pedersen for a medical assessment.

[9] Ms Candey referred Mr Pedersen to Dr Cunningham in 2009 with respect to Mr Pedersen’s ‘mobility around the factory, completing tasks’ and apparent ‘breathless[ness] at times.’ 3 The reference from Heinz to Dr Cunningham included details of Mr Pedersen’s duties in the sugar plant and some additional information including the distance from the car park to the factory, shift arrangements, his use of a crutch to support himself etc.4 As part of this assessment Dr Cunningham obtained a detailed medical history of Mr Pedersen, undertook a thorough examination of Mr Pedersen and performed a task analysis. As a result of this Dr Cunningham advised Ms Candey in June 2009 that Mr Pedersen could ‘safely undertake the job tasks of his current job placement [in the sugar plant], including operating a forklift and a front end loader’ with the restriction that ‘he cannot safely negotiate ladders’5 (the 2009 assessment).

[10] In about February 2010 Heinz determined that workers in the sugar plant should provide relief in the beverages cordial area of the plant for ‘lunch breaks, tea breaks if there was a shortage of staff and...if people were on leave.’ 6 Ms Candey subsequently ascertained the tasks that would be required to be undertaken by sugar plant staff in the beverages cordial area. She then met with the staff affected in March 2010, including the Applicant, and ‘had them demonstrate their ability to lean, bend and reach into certain areas where they would be required to perform their [beverages] duties.’ She made notes of her discussions and observations of each of the staff members.7

[11] As a result of her discussion with and observation of Mr Pedersen, Ms Candey suggested an occupational therapist be brought in to undertake a worksite assessment of tasks in that area and Mr Pedersen’s capabilities to undertake these. Mr Pedersen thought this was a good idea. 8

[12] Ms Candey’s evidence is that Mr Pedersen was slow walking up and down stairs, that he had difficulty reaching into areas where bottles would jam, that he had to stop and lean on railings to catch his breath and that, at the end of the walk though the beverages cordial area, he had to sit down and catch his breath before he could talk. 9 Ms Candey also gave evidence that she had observed Mr Pedersen stopping to rest after walking from the car park to the plant and prior to clocking on although she agreed she did not directly know if this was because he was too early to clock on.10

[13] Mr Pedersen’s evidence, however, is that if he is early to work he waits outside until it is time to clock on 11 and that if he leans on the rails it is bad or old habits that he has picked up and is not so he can catch his breath.12 He stated that he could reach bottles with little difficulty.13 Mr Pedersen did agree that on the walk back to the sugar plant from the beverages cordial area he was a bit puffed and needed a few minutes to get his breath back, and that if he couldn’t catch his breath he had difficulty talking to Ms Candey.14 However, Mr Pedersen admits he recalls very little of the conversation he had with Ms Candey at this time.15

[14] I accept the evidence of Ms Candey with respect to her observations of Mr Pedersen. Her evidence was clear and given in a careful and considered manner. Her evidence was based on her direct observations of Mr Pedersen and did not change. Mr Pedersen, in his evidence, was evasive in his answers and gave evidence that he did not recall much about a conversation with Ms Candey in March 2010. Even after Mr Pedersen was told that he did not need to recall the exact words that had been said he remained evasive and non-committal in his answers. Where there is a conflict in the evidence of Mr Pedersen and that of Ms Candey I prefer the evidence of Ms Candey.

[15] Mr Nolan also gave evidence of his observations of Mr Pedersen in the workplace. Mr Nolan is a supervisor in the sugar plant where Mr Pedersen worked, although he did not supervise Mr Pedersen all the time. Because of the shift patterns, Mr Nolan was only rostered on with Mr Pedersen one week out of every three. When they were rostered on together Mr Nolan did not work directly with Mr Pedersen for the entire shift, as they each had their own duties to fulfil. Some of the evidence given by Mr Nolan with respect to how Mr Pedersen completed his work was based on ‘what the other operators have told [him].’ 16 To the extent that Mr Nolan’s evidence of what others have told him is purported to be evidence that other operators in the plant provided assistance to Mr Pedersen in completing his duties, this evidence of Mr Nolan is hearsay and is excluded. Further, Mr Nolan’s evidence with respect to why Mr Pedersen rejected overtime on two occasions when it was offered was not based on any direct knowledge, but rather his assumptions about why it was refused. His evidence on this matter is not preferred over the direct evidence of Mr Pedersen.

[16] To the extent that Mr Nolan (along with Ms Scott, HR Advisor) was involved in the development of a matrix of Mr Pedersen’s tasks and that this matrix was provided to Dr Cunningham, 17 I accept the descriptors of Mr Pedersen’s job contained in that document but not the assessment of Mr Pedersen’s capacity to undertake those tasks.

[17] In any event I do not consider that Mr Nolan was or provided the catalyst for the referral of Mr Pedersen by Ms Candey. I do find that the catalyst for the referral of Mr Pedersen was a decision taken at Heinz to better utilise employees in the sugar plant at a time when they were seen not to be fully occupied 18 and there was work in the beverages cordial area of the plant they could do (albeit with training).

[18] Mr Pedersen was referred by Ms Candey to Mr James Buckley, an Exercise Physiologist and Rehabilitation Consultant, in March 2010. Mr Buckley conducted a worksite functional capacity assessment of Mr Pedersen. That assessment took about two hours and was conducted in the workplace. 19 Mr Buckley’s assessment of Mr Pedersen is that he could not complete the majority of the beverages cordial area tasks ‘due mainly to his poor reported standing and walking tolerances.’20

[19] In his report of the assessment Mr Buckley stated:

Mr Pederson [sic] reported that he is only able to stand for up to 30 minutes and walk for up to 15 minutes before he needs to sit or lean to “reduce the pressure on his knees”. Mr Pedersen uses a walking stick when walking “longer distances”, however stated “It’s more of a safety thing and I only really need it if I am walking for a long time”. During the assessment Mr Pederson was required to walk/stand for roughly 40 minutes (where he rested at stages by leaning against railings). At the end of the assessment Mr Pederson reported that his knee pain had increased and he was noted to be sweating. Mr Pederson was also noted to be short of breath after walking up about 20 steps. Mr Pederson has the following functional restrictions to complete the full job demands: standing for longer than 30 minutes and walking for longer than 15 minutes.

…

In my opinion Mr Pederson:

• Demonstrated poor functional capacity and did not meet all of his required job demands;

• Provided a sub maximal effort with the physical job demands as outlined in the job overview. Mr Pederson was observed to be sweating and fatigued following the assessment;

• Demonstrated consistent reported and measured positional tolerances;

• Demonstrated average posture and body mechanics with an altered gait due to his reported knee discomfort. Mr Pederson was observed to be using a walking stick;

• VAS pain scale scores and demonstrated behaviours are consistent. 21

[20] Whilst Mr Buckley stated in his report that Mr Pedersen could perform his current position in the sugar plant, 22 this is qualified by his unchallenged statement that he

did not conduct an assessment of any of the reported tasks of the sugar plant, apart from operating the fork lift. Lance was able to operate the fork lift.

Lance was currently working in the sugar plant and reported that he was capable of performing those tasks as set out in the job overview section of my report on page 3. I accepted this and as I had not been requested to assess the job tasks of the sugar plant I noted that he was capable of performing these tasks. 23

[21] To the extent that Mr Pedersen disagrees with or disputes any of the reported observations of Mr Buckley, I prefer the evidence of Mr Buckley to that of Mr Pedersen. Mr Pedersen could not remember a number of issues surrounding the assessment, including the presence of Ms Candey and the information he had provided to Mr Buckley that subsequently appeared in Mr Buckley’s report. Mr Buckley’s evidence was given with clarity. He did not seek to embellish it or provide an opinion on those matters he had not assessed.

[22] Ms Candey then referred Mr Pedersen to Dr Cunningham to ‘complete a health assessment and... provide a medical opinion as to whether Lance [Pedersen] would be able to assist in the Beverages Cordial area.’ 24 The referral letter detailed the tasks that Mr Pedersen would be expected to undertake in the beverages cordial area.25 As part of the referral to Dr Cunningham, Ms Candey included the report of Mr Buckley.26

[23] The 2010 referral letter to Dr Cunningham posited seven matters on which Ms Candey sought the Doctor’s opinion, including whether there were ‘any other considerations [Heinz] should be aware of and take into account regarding Mr Pedersons [sic] current role in the Sugar plant’ 27 (question 7).

[24] Dr Cunningham’s evidence is that, as part of his 2010 assessment, he reread the entirety of Mr Pedersen’s 2009 referral and assessment and conducted a thorough medical on Mr Pedersen. Dr Cunningham’s uncontested assessment was that Mr Pedersen ‘did not have the capacity to safely undertake the job tasks of the job placement as was described in the referral letter of 23 March, 2010.’ 28

[25] Further, Dr Cunningham’s evidence is that

[f]rom June 2009 until March 2010 there was a significant progression of Mr Pedersen’s pathologies. There was an increase in his symptomology [sic] and deterioration in his medical condition. His capacity was such that he could not safely undertake the job tasks for Cordial-Beverages role or the job tasks of the Sugar Plant that had previously been advised to me in June 2009. 29 (emphasis added)

[26] In response to a follow up email from Ms Candey with respect to question 7 on the 2010 referral, Dr Cunningham advised that ‘Mr Pedersen was medically fit to undertake purely sedentary job tasks which are almost entirely seated...further...he should not undertake job tasks involving walking any significant distance and that he should not undertake job tasks involving stairs or other climbing.’ 30

[27] On receipt of the report from Dr Cunningham, Ms Scott, HR Advisor, organised a meeting with Mr Pedersen on 12 April 2010. Prior to the meeting Ms Scott determined, in consultation with Ms Candey, that there were no sedentary roles at Heinz. 31 She also determined, in consultation with Mr John Hey, the Production Manager, and in light of the assessment of Dr Cunningham, that Mr Pedersen would need to be placed on sick leave and asked ‘to show cause why his employment should not be terminated in light of his medical inability to perform the duties of his position as a Machine Operator.’32

[28] The ‘show cause’ letter provided to Mr Pedersen advised that Mr Pedersen did ‘not have the medical capacity to safely undertake the job tasks associated with [his] role due to a number of significant medical conditions...’ 33 However, the letter advised, a final decision would not be taken with respect to his employment until he was given a reasonable opportunity to respond. Mr Pedersen was given seven days to provide any relevant information to Heinz. This time period was subsequently extended to enable Mr Pedersen to gather information he required to respond to the show cause letter.

[29] Mr Pedersen was seen by Dr Morgan, his GP, and referred to Mr Steve Purcell, a musculo-skeletal physiotherapist. Mr Pedersen saw Mr Purcell twice. Mr Purcell sought to ‘objectively quantify [Mr Pedersen’s] functional capacity pertaining to his ability to undertake his role at work.’ 34 Mr Purcell’s assessment of Mr Pedersen was undertaken in a simulated environment. As a result of his assessment, Mr Purcell determined that Mr Pedersen ‘is able to satisfactorily perform the [listed] functional tasks.’35

[30] Mr Purcell agreed in cross examination that he did not undertake a formal functional capacity evaluation of Mr Pedersen but rather a ‘fairly short, focussed functional examination which related back to the activities that Mr Pedersen told [him] he was involved in at his work.’ 36 Mr Purcell’s assessment was based on information from Dr Morgan and Mr Pedersen as to Mr Pedersen’s role.37 Mr Purcell also agreed that he had not visited Mr Pedersen at his workplace.

[31] Mr Purcell agreed that a more thorough task analysis of Mr Pedersen’s job may be needed:

Is that because you didn’t have any, if I can put it this way, independent information about Mr Pedersen’s job requirements?---If someone was to fully look at his function I thought they would have actually had to have a thorough task analysis of each role that he had to undertake at work and then either those tasks could be replicated or you could correlate those requirements versus (indistinct) in a more formal functional capacity examination.

But is the reason you’ve - you sort of recommend that there?---Yes.

You say, “A more thorough task analysis at work may be needed.” Is that because the reality of it was you really only had what Dr Morgan and what Mr Pedersen had told you about his role and that you didn’t have perhaps the complete picture?---Absolutely, absolutely, and you know a functional capacity examination often takes a full day to do. I spent 30 minutes with him on two occasions.

Then the last part of that sentence you seem to recommend a more formal functional capacity evaluation undertaken to fully validate his ability to continue in his current role, you recommended that I take it because first of all that’s not something that you normally do, a functional capacity evaluation?---I felt like my report didn’t have the details that I would like. I thought someone who was aware of his jobs and their specific functional requirements of each of those roles within his job would be able to make more accurate representation. 38

[32] A report was also prepared by Dr Morgan. Dr Morgan’s evidence is that he understood Mr Pedersen’s job to be ‘primarily a seated task with a bit of walking and occasional climbing of some steps.’ 39 Dr Morgan stated that he saw as his ‘primary role to see if there was cardiovascular fitness, [and] left it to the physiotherapist to assess whether he had adequate strength and mobility to function.’40 Dr Morgan had ‘no specific complaints’41 of Dr Cunningham’s report on Mr Pedersen and agreed that Dr Cunningham was better placed than him to assess Mr Pedersen’s overall fitness to be able to perform the duties of his job.42

[33] Upon receipt of the report from Mr Purcell, Heinz forwarded this information to Dr Cunningham and again sought his opinion in light of this report. 43 Dr Cunningham advised Heinz that his opinion remained unchanged44 and that ‘[t]he opinion expressed in the Enogerra Physiotherapy report was not in keeping with Mr Pedersen’s medical history, or my clinical findings, based on my medical assessment of Mr Pedersen.’45

[34] Dr Cunningham also reviewed correspondence from Dr Morgan but found nothing in that correspondence to make him to change his opinion. 46

[35] In his evidence Dr Cunningham restated his opinion that ‘[i]nsofar as both jobs require Mr Pedersen to walk significant distances or to climb stairs or ladders and to stand for periods longer than 30 minutes, Mr Pedersen is not fit to safely undertake these duties.’ 47

[36] Neither Dr Cunningham’s qualifications to make the assessment he made with respect to Mr Pedersen nor his medical opinion of Mr Pedersen were contested.

[37] On the basis of the medical opinion of Dr Cunningham a decision was taken by Heinz to terminate Mr Pedersen’s employment.

[38] Mr Pedersen was advised of this at a meeting on 17 May 2010. He was provided with a letter of termination dated 17 May 2010. Mr Pedersen’s employment was terminated because of his medical inability to perform the duties of his position.

[39] The Applicant relies on the medical/physical assessments of him undertaken by Mr Purcell of Enogerra Physiotherapy and Dr Morgan.

[40] On the basis of the qualifications and experience of the various health professionals and the evidence of those professionals I accept the evidence of Dr Cunningham as to the capacity of Mr Pedersen to only undertake work of a sedentary nature.

Was Pedersen unfairly dismissed?

[41] In determining if Mr Pedersen was unfairly dismissed it is necessary to determine if the dismissal was harsh, unjust or unreasonable. In making such a determination it is necessary that I consider each of the matters in s.387 of the Act.

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) (s.387(a))

[42] Mr Pedersen’s employment was terminated because he was medically unfit to safely perform the inherent requirements of his position.

[43] On the basis of the evidence given I find that there were legitimate reasons for Ms Candey to seek an assessment of Mr Pedersen by Mr Buckley and by Dr Cunningham. Indeed Ms Candey and Heinz may have been seen to be negligent in their general duty of care to their employees had they not properly determined the capacity of employees to undertake the work in the beverages cordial area of the plant. Having identified a potential issue with the capacity of Mr Pedersen to carry out these relief duties, referral for a full and proper assessment was appropriate.

[44] It is as a result of this legitimate referral that it was then identified that Mr Pedersen could not perform the duties of his existing job (and other jobs at the plant).

[45] Whether employees of the sugar plant have or have not undertaken relief work in the beverages cordial area is not the relevant consideration. The initial decision to refer Mr Pedersen to be assessed by Mr Buckley and Dr Cunningham was based on legitimate concerns that arose from a legitimate decision on staff utilisation. There was nothing in the referral process to invalidate the result of that referral.

[46] In J Boag and Son Brewing Pty Ltd v Allan John Button 48 (Boags) the Full Bench of Fair Work Australia found that

[w]hen 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. 49

[47] Further, they found that

[i]t is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense. 50

[48] Mr Pedersen’s substantive job was as a Plant Operator.

[49] In the sugar plant, this required that he walk distances, climb stairs and lift heavy objects. He agreed during cross examination that this was the case and that he was variously required to empty 20kg bags of carbon, 51 tip 22.7 kg bags of filter aid into troughs,52 empty 20kg bags of lime into tanks,53 walk distances of 500 metres to a liquid sugar tank and 700 metres from the car park to the plant,54 climb stairs to the control room55 and more. Much of this was further admitted by Mr Pedersen in the information he provided to Mr Purcell from Enoggera physiotherapy as is reflected in Mr Purcell’s report.56

[50] Should he be required to work in the beverages cordial area he would have been required to climb stairs and stand for periods of time. There was uncontested evidence from Ms Cure (the Human resources Manager) 57 and Ms Scott that there were no sedentary jobs within Mr Pedersen’s classification at the plant.

[51] Ultimately the assessment made by Dr Cunningham was not only against the work in the beverages cordial area. Ms Candey sought in her 2010 referral letter 58 and then through a follow up with Dr Cunningham his opinion as to whether there were ‘any other considerations we should be aware of and take into account regarding Mr Pederson’s current role in the Sugar plant?’59

[52] Dr Cunningham’s assessment on this final point is that Mr Pedersen ‘is medically fit to undertake pure sedentary job tasks which are almost entirely seated. He should not undertake job tasks involving walking any significant distance. He should not undertake job tasks involving stairs or other climbing’ 60 (emphasis added). Dr Cunningham was well placed to make such an assessment, given his assessment of Mr Pedersen in June 2009, the detailed information provided to him by Ms Candey about Mr Pedersen’s work requirements and the assessment he undertook in 2010.

[53] Dr Cunningham also reviewed the correspondence of Dr Morgan dated 16 April 2010, in which Dr Morgan expressed the opinion that Mr Pedersen was fit to continue working in his current position. Dr Cunningham’s opinion is that, insofar as the beverages cordial job or the sugar plant job required Mr Pedersen to ‘walk significant distances or to climb stairs or ladders and to stand for periods longer than 30 minutes’ Mr Pedersen was not fit to carry out these duties. 61 Dr Morgan’s opinion did not alter that of Dr Cunningham.

[54] Dr Cunningham’s assessment relates to Mr Pedersen’s existing job in the sugar plant, any extended job that may involve relief in the beverages cordial area or to any other job he may be required to undertake in accordance with the collective agreement at the plant. I accept his assessment of Mr Pedersen’s capacity.

[55] I find that Mr Pedersen’s job in the sugar plant and, had he been required to undertake the work, his job relieving in the beverages cordial area would both require that he walk distances and climb stairs and that these jobs could not be classified as ‘sedentary’. There were no sedentary operator jobs at the plant.

[56] Whether his job was considered on a narrow view (as an Operator in the sugar plant) or the expansive view (as an Operator at H.J. Heinz Company Australia Limited trading as Golden Circle) Mr Pedersen was unable to carry out the inherent requirements of his job.

[57] On this basis I find Mr Pedersen could not meet the inherent requirements of his job.

[58] There is, therefore, a valid reason for Mr Pedersen’s dismissal.

Whether the person was notified of that reason (s.387(b))

[59] A meeting was held with Mr Pedersen on 12 April 2010. At this meeting he was advised of the reason for the termination of his employment. Mr Pedersen was taken through the contents of the letter of 12 April 2010 which detailed the reason for the termination of his employment. He was advised at this time that he would have seven days to provide any information he considered relevant to management.

[60] Mr Pedersen sought at this meeting a copy of the report of Mr Buckley and Dr Cunningham. These were subsequently provided to him.

[61] I find that Mr Pedersen was notified of the reason for his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s.387(c))

[62] Mr Pedersen was given an adequate opportunity to respond to the reason for his dismissal. He was given seven days in which to provide any additional information to management. This period was extended at the request of Mr Pedersen.

[63] In addition to the medical and physiotherapist assessments, Mr Pedersen also provided a statement dated 22 April 2010 in support of his reinstatement prepared by himself, 62 a letter of support dated 22 April 2010 from the General Branch Secretary of the NUW63 and a letter from himself dated 14 April 2010 in response to the medical termination letter of 12 April 2010.64

[64] Not only was Mr Pedersen given an opportunity to respond, but his response was given serious consideration by management of Heinz. Mr Pedersen’s assessments by his physiotherapist and doctor were both provided to Dr Cunningham for further consideration. Further the company sought out, albeit unsuccessfully, alternative employment for Mr Pedersen at Heinz. 65

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s.387(d))

[65] Heinz management did not at any stage unreasonably refuse to allow Mr Pedersen to have a support person present. Ms Scott gave evidence that at the meeting of 12 April 2010 she asked Mr Pedersen if he would like a support person but he declined. 66 Mr Pedersen says he was not offered a support person. I prefer the evidence of Ms Scott on this matter. I found her evidence to be forthright and clear. Where there is a conflict between her evidence and that of Mr Pedersen I prefer the evidence of Ms Scott.

[66] It should be noted however that there is no requirement under the Act that management take positive steps to ensure an employee has a support person, but rather they must not unreasonably refuse such support.

[67] I find that Mr Pedersen was not refused a support person at the meeting of 12 April 2010 and he did have a support person (in his union representative) involved in the process from that time on.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f))

[68] This is not a relevant consideration in this case.

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 (s.387(g))

[69] This is not a relevant consideration in this matter.

Any other matters that FWA considers relevant (s.387(h))

[70] To the extent that there was evidence provided in the proceedings from those who currently or had previously worked with Mr Pedersen, I accept their evidence of past work practices. This matter is not such that those past practices are necessarily a guide to Mr Pedersen’s capacity to fulfil the inherent requirements of his job. This must be weighed against the medical and other assessments undertaken of Mr Pedersen.

Conclusion

[71] For the reasons outlined above I do not find that the termination of Mr Pedersen’s employment was harsh, unjust or unreasonable.

[72] Mr Pedersen therefore was not unfairly dismissed.

[73] The application is dismissed.

COMMISSIONER

Appearances:

D. Pegg of National Union of Workers, for the Applicant.

J.W. Merrell of Counsel, for the Respondent.

Hearing details:

2010.

Brisbane:

13 & 14 September.

Final written submissions:

Applicant: 18 October 2010

Respondent: 22 October 2010.

 1   NUW 8.

 2   Heinz 3, attachment LC1.

 3   Heinz 7, attachment GC1.

 4   Heinz 7, attachment GC1.

 5   Heinz 7, attachment GC3.

 6   Transcript PN1745.

 7   Heinz 3, paragraphs 21-26 and attachments LC5&LC6.

 8   Heinz 3, paragraph 29.

 9   Heinz 3, paragraphs 26 & 27.

 10   Transcript PN1695-6.

 11   PN106.

 12   PN504-6.

 13   PN511-2.

 14   PN514-6, 518.

 15   PN489.

 16   PN1462.

 17   Heinz 7, paragraphs 29 & 32 and attachment GC 10.

 18   Heinz 3, paragraph 19.

 19   Heinz 6, paragraphs 5, 8 & 23.

 20   Heinz 6, attachment JB1.

 21   Heinz 6, attachment JB1, paragraphs 2 & 4.

 22   Heinz 6, attachment JB1.

 23   Heinz 6, paragraphs 25-6.

 24   Heinz 3 paragraph 34.

 25   See Heinz 3, attachment LC8 for a copy of the referral letter.

 26   Heinz 3, paragraph 34-36.

 27   Heinz 3, attachment LC8.

 28   Heinz 7, paragraph 22.

 29   Heinz 7, paragraph 25.

 30   Heinz 7, paragraph 27 and attachment GC7.

 31   Heinz 4, paragraph 14.

 32   Heinz 4, paragraph 11.

 33   Heinz 4, attachment KS4.

 34   NUW 4.

 35   NUW 4.

 36   Transcript PN1164.

 37   PN1156.

 38   PN1209-12.

 39   PN1347.

 40   PN1382.

 41   PN1388.

 42   PN1389.

 43   Heinz 3, paragraph 46 and attachment LC12.

 44   Heinz 7, paragraph 35 and attachment GC11.

 45   Heinz 7, paragraph 36.

 46   Heinz 7, paragraph 38.

 47   Heinz 7, paragraph 40.

 48 (2010) 195 IR 292.

 49 (2010) 195 IR 292 at [22].

 50 (2010) 195 IR 292, at [29] (footnotes omitted).

 51   PN149.

 52   PN159.

 53   PN162.

 54   PN137, 172 & 288.

 55   PN213-8.

 56   NUW4.

 57   Heinz 5, paragraph 30.

 58   Heinz 3, attachment LC8.

 59   Heinz 3, attachment LC10.

 60   Heinz 7, attachment GC7.

 61   Heinz 7, paragraph 40.

 62   Heinz 4, attachment KS14.

 63   Heinz 4, attachment KS12.

 64   Heinz 4, attachment KS9.

 65   Heinz 4, paragraph 14, Heinz 5, paragraph 30.

 66   Heinz 4, paragraph 10.

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