Manojkumar Pradhan v Amcor Flexibles (Australia) Pty Ltd
[2021] FWC 6125
•14 OCTOBER 2021
| [2021] FWC 6125 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Manojkumar Pradhan
v
Amcor Flexibles (Australia) Pty Ltd
(U2021/1500)
COMMISSIONER HUNT | BRISBANE, 14 OCTOBER 2021 |
Application for an unfair dismissal remedy.
[1] On 23 February 2021, Mr Manojkumar Pradhan made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Amcor Flexibles (Australia) Pty Ltd (Amcor/the Respondent) was harsh, unjust or unreasonable.
[2] Mr Pradhan commenced employment with Amcor on 5 May 2009 and was dismissed on 22 February 2021. He was employed as an Extrusion Operator at the time.
[3] The matter was heard before me by Teams video on 31 May 2021. Mr Pradhan represented himself. The Respondent was represented by Mr Andrew Kite, Senior IR Business Partner and Mr Mathew Taylor, Site Manager. After obtaining the views of the parties, I decided to convene the matter as a determinative conference
Legislation
[4] Section 394 of the Act sets out:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[5] Further, ss.385 and 387 provide:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“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.”
[6] There are no jurisdictional issues preventing the Commission determining if the dismissal was unfair. The application had been made in time. Mr Pradhan has been dismissed and has met the minimum employment period. Amcor is not a small business. The dismissal was not that of a genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.
Evidence and submissions of Mr Pradhan
[7] Mr Pradhan suffered a workplace injury in around September 2019. He was placed on a suitable duties plan to accommodate his injury and his workers compensation claim was accepted.
[8] Mr Pradhan was able to, with the use of machinery, operate the machines to lift heavy rolls onto the machines. He was not, however, able to lift small rolls onto the machine as this is done manually. The suitable duties plan effective 17 September 2019 allows and prohibits the following activities:
“Modified duties as a machine operator in extrusion to include:
• Admin and quality control tasks
• Loading cores
• Splicing rolls
• Unloading rolls of >200kg
• Transferring additives in 5kg buckets
To be performed with the restrictions and recommendations
Not to perform:
• Unloading rolls which need to be stood upright
• Rethread
• Draining resin
• Cleaning rollers
• Unjamming extrusion or plasma machines
Restrictions/Recommendations
• Work within own pain/functional tolerances
• No overtime
• Lifting limit 5kg
• Rest and stretch break every 2 hours for 10min
• Minimise repetitive bending and stepping up/down
• To fill in daily activity diary
• Utilise the specific manual handling strategies discussed with the physiotherapist
• Report any problems to Chris Chandler, Safety Manager and Gabrielle Nemeth-Taylor (AXIS Rehabilitation at Work) immediately”
[9] By week 48-49 of Mr Pradhan’s suitable duties plan, covering the period 14-27 September 2020, Mr Pradhan’s restrictions were as follows:
“Modified duties as a machine operator in extrusion to include:
• Admin and quality control tasks
• Loading cores
• Sweeping
• SOPs
• Splicing rolls
• Unloading rolls >200kg unlimited time
• Unloading rolls of >40kg 8hrs
• Standing up rolls 25kg 2.5hrs max.
• Transferring additives in
Restrictions/Recommendations
• Work within own pain and functional tolerances
• No overtime
• Lifting limit 10kg
• No standing up rolls greater [than] 25kg
• Pushing up to 70kg
• Rest and stretch break every 1hr for 5min
• Avoid >90secs continuous kneeling or reaching
• To fill in daily activity diary
• Utilise the specific manual handling strategies discussed with the physiotherapist Report any problems to Chris Chandler, Safety Manager and Angel Chercoles (AXIS Rehabilitation at Work) immediately”
[10] On 22 September 2020, Mr Pradhan and the Respondent were notified by WorkCover of its determination that Mr Pradhan’s ongoing incapacity was no longer the result of his employment with the Respondent, but rather, was the result of a pre-existing ailment. There are medical certificates before the Commission from Mr Pradhan’s treating doctor which indicate that Mr Pradhan continues to suffer from chronic low back pain and radiculopathy in his left leg.
[11] On 23 September 2020, following notice of the cessation of the acceptance of liability to Mr Pradhan in respect of his injury, Mr Pradhan attended a meeting with Mr Mathew Taylor, Site Manager – Acacia Ridge, and Mr Chris Chandler, Safety Manager, at which Mr Pradhan was advised that he was required to obtain full medical clearance before returning to work.
[12] On 24 September 2020, following the meeting with Mr Taylor and Mr Chandler, Mr Pradhan received a letter from Mr Taylor relevantly stating:
“I am writing to you to regarding the conversation we had on 23rd September 2020.
Since 12th September 2019 you have presented various certificates certifying you fit for alternative/ modified duties or unfit for all duties for a work-related injury you sustained on 11th September 2019 for which you had an accepted WorkCover claim.
On Tuesday 22nd of September Amcor was advised by Workcover QLD that your work-related injury has resolved and that any ongoing injury or symptoms are not work related, and that they have closed your claim.
In our meeting on the 23rd of September you advised that you do not have a clearance for preinjury duties, it is therefore apparent you are currently unable to perform the inherent requirements of your role in extrusion as an operator. Given you are not able to perform the inherent requirements of this role along with the advice that your injury is no longer work-related, we have asked that you obtain a full clearance certificate from you treating practitioner before returning to work.
I also advised you, that given the length of time you have not been able to perform your full duties, that should you present a full clearance that we would request that you attend an independent assessment to assess your suitably to return to your full duties before returning to the workplace.
I further advised you that you are entitled to use your sick leave whilst absent due to injury and that should you run out of sick leave you are able access any annual leave you have available.”
[13] On the evidence provided to the Commission from the Respondent following the hearing, it is clear Mr Pradhan commenced paid personal leave until around 6 October 2020, when he then went on paid annual leave, and later, paid long service leave. It is Mr Pradhan’s evidence that his paid leave was exhausted on 26 January 2021.
[14] On 26 November 2020, Mr Pradhan wrote the following letter to the Respondent:
“A formal request for redeployment/ modified duties or part time work to accommodate my present medical restrictions.
Dear Mat,
As you are well aware that I have been working for Amcor Flexibles for more than 11 years, and I got injured while doing my duty at Amcor. Right now I am using my holiday leave to cover my unfit to work leave and soon I will run out of my holiday leave.
Hence through this letter, I want to request you to look into any redeployment or modified duty opportunity that meets doctors restriction and is available within Amcor-Acacia Ridge.
In the past, you have requested a full fitness certificate from me, but unfortunately, I could not provide you with the full clearance from my doctor, as my present job is very physically demanding and I am having constant back pain with radiculopathy almost every day along with very bad flare ups. Also, the doctor has suggested, if I carry on with my present job the chances of injury getting worse are very high.
During my current unfit for work leave, I tried to look for some new sedentary type work elsewhere, that would suit my doctor’s restriction, but unfortunately, all the role advertised for the similar work experience that I have gained through last 11 years, requires full fitness and has to undergo the full medical test before the appointment and hence I am disadvantaged in the open job market, with very slim or no chance of getting employment in my field of experience in future.
Now, I am left with no other option, except to request you to decide on my future, it’s up to you to either make it or break it. If the company agrees to help me with my request, that would be the best possible outcome for me or I will have to retrain myself for the future and this is going to be a long journey at the age of 44.
I hope you will consider my request for redeployment/modified duties or part time work, taking into account my long service history with the company and the fact that I got injured while doing my duty for the company. Your empathetic approach will help me secure my future and I will be able to continue to serve the company in the time ahead.”
[15] On 2 December 2020, Mr Taylor wrote the following letter to Mr Pradhan:
“Thank you for your letter dated 26th November 2020 requesting that we formally consider your ongoing employment.
We note that the medical evidence we have received to date does not support a full return to work. In your letter dated 26th November, you requested a part time position or modified duties. We note that your current capacity does not allow you to perform the inherent requirements of your role, nor can you work full time hours.
Unfortunately given the nature of the role and nature of the business, that being the job roles are industry and task specific, we cannot offer you an alternative role, reduced hours, or modifications that would allow you to perform the inherent requirement of your role, and unfortunately, we do not have any other such roles available.
In order for us to review your future work capacity we first need determine if and when you may be able to return to your usual duties and hours. If you are providing evidence that you cannot return in a full capacity then we are unfortunately unable to provide an alternative role for you, as you have requested.
Conversely if you believe that it is likely that you can return to your usual duties and hours in the coming weeks we ask that you provide this information from your treating practitioner. We ask that you please provide this information to us by the 16th of December.
If we do not receive a response from you or your GP by the 16th of December, we may have to make a decision about your future employment based on the information we currently have.
If you have any queries or concerns about this letter, please contact me directly.”
[16] On 13 December 2020, Mr Pradhan wrote the following letter to Mr Taylor:
“Dear Mat, Good morning.
In your letter dated 2/12//20, you requested a full fitness clearance certificate from my treating doctor, I had an appointment with Dr Robert Sarkar regarding this on date 12/12/20.
Considering my present medical condition and report received from various doctors through my Workcover claim, Dr Sarkar has refused me full fitness clearance.
Lastly, I once again request you to reconsider my request that I have made through my last letter before you make any adverse decision on my future with Amcor.”
[17] On 13 January 2021, Mr Taylor wrote the following letter to Mr Pradhan:
“Thank you for your letter dated the 6th of November 2020 and subsequent email dated 13th of December 2020. As indicated in your letter and as supported by your ongoing certified medical incapacity it is clear that you are not able to carry out the inherent requirements of your pre-injury position.
We have concluded the review into your ongoing employment with Amcor and unfortunately the outcome of the review is that we can no longer hold your position open.
The reason as stated above is that you are unable to carry out the inherent requirements of your pre-injury position and will be unable to do so do for the foreseeable future. As well, there are no other suitable positions available for you, and for us to provide the facilities necessary to enable you to carry out your pre-injury duties would, in the company's view, constitute an unjustifiable hardship.
If you have new medical information that you would like us to consider, please provide to us on or before Monday the 25th of January 2021
If we do not hear back from you this letter provides you with 5 weeks' notice that your employment is to be terminated. Your employment entitlements will be paid to you at the expiration of the period of notice on the 22nd of February 2021.
I would also like to thank you for the last 11 years of service and we wish you well for the future.”
[18] As to why he believed that his dismissal was unfair, Mr Pradhan offered the following reasons:
“• No reasonable adjustment was made, discussed or offered.
• Large enterprise with good resources to accommodate my medical condition.
• My request for redeployment or part time job was refused on ground of unjustifiable hardship.
• My 10+ year of service and the fact that I got injured at work was not considered while making decision to terminate my employment.
• No effort was made to help me retain my job”
[19] In the accompanying documents to his application, Mr Pradhan added that:
“1. Fair Work act 2009(No. 28,2009) Sect 772, Prevents employer from terminating employment on ground of physical disability.
2. Fair work act 2009 Sect 351, Employer must not take adverse action on prospective employee or a person who is employee because of physical disability.
3. Disability discrimination act 1992, Sect 5, Employer have responsibility to make reasonable adjustment. But in this case, employer failed to make any adjustment as no reasonable adjustment was discussed with me or proposed to me, this contravene with disability discrimination act 1992-Sect 5.
4. Employer in this case have claimed unjustifiable hardship and I am completely unaware of how providing me with reasonable adjustment caused the employer, unjustifiable hardship. I request employer to prove to the commissioner that what reasonable adjustment caused them unjustifiable hardship and as per disability discrimination act 1992 the burden of proving that something to impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
5. Large employer with good resources to accommodate my medical restriction.
6. 12 years of long work history with the employer.
7. No fault termination as injury was caused by work accident.
8. Fair work act 2009 allows me to ask for flexible work arrangement (part-time job) on ground of disability, which was rejected without due consideration.
9. Employer could have easily accommodated my medical restriction by assigning me the machine that runs big rolls as all the operators including myself, in afternoon shift got skill and ability to be assigned any of the 5-extruder machine.
10. No telephonic or face to face communication/meeting arranged, by the employer to offer support from the date I was put on forced leave, till date of termination of job.”
[20] Mr Pradhan advised in his application to the Commission that he seeks the following remedy:
“Reinstatement on part time job with necessary adjustment and medical restriction and all my leave that I used to cover my unfit for work leave must be credited back to my leave balance as the employer failed in providing me reasonable adjustment which contravene with disability discrimination act, sect 5. I had accumulated my leave to go on long holidays.”
[21] Mr Pradhan received an Employment Separation Certificate dated 23 February 2021 which recorded that his employment ceased on 22 February 2021. His gross weekly wage was recorded as $1,233.16 weekly. In his application, Mr Pradhan stated that his weekly pay was “$39.33 per hour x 42 hours = $1651 (This includes 20% shift loading and 2 hours of RDO each week)”. It is noted that in the Respondent’s F3 Employer Response, it has indicated that Mr Pradhan’s wages were “$32.7882 per hour – 40 hours per week”, which equates to $1,311.53 weekly.
[22] On 25 March 2021, Dr Robert Sarkar, General Practitioner, completed a Centrelink Medical Certificate for Mr Pradhan. Dr Sarkar remarked that Mr Pradhan suffered from a permanent, chronic back pain condition since August 2019 which caused low back pain, periodic leg numbness, and that the condition would continue to affect Mr Pradhan for at least the next two years. Dr Sarkar opined that Mr Pradhan was unfit for work until 25 June 2021. Dr Sarkar remarked that the following factors would impact upon Mr Pradhan’s participation in any return to work: “pains worse with bending, crouching, lifting > 10kg, long hours on feet without breaks; did well with light duties at previous work”. Dr Sarkar described the treatment of Mr Pradhan’s ailment as follows: “in past multiple treatments, med'ns included palexia, norflex, tramal sr, seen physio and exercise rehab, seen orthopods and pain specialist, tried nerve ablation. Had to leave last job d/t back pains.” Dr Sarkar stated that Mr Pradhan had been his patient since 16 November 2012.
[23] On 12 May 2021, Mr Pradhan received an email from TAFE Queensland advising him that his application to study a Certificate III in Business had been successful.
[24] On 13 May 2021, Mr Pradhan received a letter from Centrelink advising him that an appointment to undergo a Job Capacity Assessment, as part of an application for Disability Support Pension, had been arranged for him on 28 May 2021.
Evidence given during the determinative conference
[25] I inquired of Mr Pradhan what accommodations he considered Amcor could have made for his condition. He said that he could safely perform approximately 70% of the duties, however he could not bend for small rolls. He said Amcor could install “roll lifting things”, but then conceded that he did not know how they could accommodate his condition. I expressed to Mr Pradhan the difficulties the Commission has if he could not articulate what accommodations Amcor could make to allow him to safely perform the work.
[26] Mr Pradhan stated that other operators used to assist him with standing-up rolls, and perhaps Amcor could employ a part-time employee to cover the rest of his shift when small rolls were needed. He accepted that he did not go up and down stairs to troubleshoot issues with machinery, and another employee would need to do that in his place.
[27] Mr Pradhan stated that while he was licensed to operate a forklift, he could not safely do so because he cannot sit in one spot for long. He considered he could only work four hours per day, and he would also require a lifting aide. He conceded that he would not be able to push bins and would require assistance with that task.
[28] Mr Pradhan stated that if the machine was turned off it would take at least 30 minutes to start up and a further 15 minutes for quality checks to be performed. He suggested that perhaps he could perform stocktake work.
[29] Mr Pradhan stated that he was terminated 20 days after his paid leave was exhausted.
[30] During the determinative conference Mr Pradhan stated that he was in receipt of income protection payments through his superannuation insurance. Following the determinative conference he provided details of his claim through the insurance. He completed the claim form on 20 January 2021. I note this was at a time when his paid leave was soon to be exhausted.
[31] Mr Pradhan stated that from the time when his income protection payments commenced in or around January 2021, he received approximately $1,500 per month after tax.
Evidence and submissions of the Respondent
F3 – Employer response
[32] On 10 March 2021, the Respondent filed a Form F3 – Employer response to the application. In the Form F3, the Respondent stated that, on 20 August 2019, WorkCover Queensland (WorkCover) accepted a claim for compensation made by Mr Pradhan in respect of a workplace injury he suffered while employed by the Respondent. The Respondent stated that it had 776 employees at the time of Mr Pradhan’s dismissal.
[33] As to the reason for Mr Pradhan’s dismissal, the Respondent stated that he was dismissed for the following reasons:
“1. Inability to perform the inherent requirements of the role
2. The employee had presented medical certificates stating they were unfit to perform full time work at the Amcor site.
3. The employee requested modified duties that could not be reasonably accommodated by Amcor Acacia Ridge”
[34] The Respondent provided the following response to Mr Pradhan’s F2 application:
“1. The employee had a claim for a workplace injury which was accepted by Workcover Queensland on 20 August 2019
2. On 22 September 2020, the employee and Amcor were notified that the employees injury was no longer work related
3. Amcor met with the employee on 23 September 2020 and advised that it would be unable to provide modified duties and sought for the employee to obtain a medical clearance
4. The employee provided a Medical certificate indicating unfit to continue usual occupation with restrictions
5. Employee requested “redeployment/modified duties” and was provided a response indicating that this was not practicable
6. Employee advised Company was considering terminating employment pending additional medical evidence
7. Further medical certificate provided indicating unfit to continue usual occupation
8. Employment subsequently terminated”
Evidence of Mr Taylor
[35] Mr Taylor is the Site Manager – Acacia Ridge and has held the position for five years. The site is a facility for the manufacture of food-grade flexible plastic packaging, supplied to wholesale customers for their use in the packaging of various fresh and processed consumables.
[36] The site operates 24 hours a day, seven days a week. The only time the site closes is for one week over Easter and for two weeks over Christmas. Each of the 150 employees employed at the site are employed on a full-time basis. There are no part-time or casual employees.
[37] Extrusion is the core activity undertaken at the site, where raw inputs (resin) are converted into plastic sheet. There are five extrusion machines operating at the site. These machines are up to four stories tall and are accessible through an interconnected network of stairs and railings (the stairs being up to four stories high themselves to facilitate access to, and observation of, the top of the extrusion machines).
[38] Each extrusion machine is run by a single Extrusion Operator; there are five Extrusion Operators assigned to each shift. Extrusion Operators work 8-hour shifts, divided into Day Shift (0600 to 1400), Afternoon Shift (1400 to 2200), and Night Shift (2200 to 0600), with the exception of weekends for which there are two 12-hour rosters in place. This roster configuration allows for continuous operation of the extrusion machines.
[39] Mr Taylor stated that continuous operation of the extrusion machines is of incredible importance given the inefficiencies associated with machine start-up. On average, starting up an extrusion machine will require the attention of three Extrusion Operators, and it will take up to two hours for that machine to then be ready for processing resin.
[40] Machine shut-downs are accordingly extremely costly for Amcor’s operations, and it is for that reason that Amcor runs a continuous roster and otherwise avoids shutting down any of the extrusion machines other than over Easter and Christmas.
[41] At the start of an extrusion run, an Extrusion Operator is issued with a specification sheet that identifies the particular combinations of resin they are required to use in the extrusion process. The Operator is then required to collect the relevant resins from the storage silos and feed the resin into the hopper of the extrusion machine. Depending on the
type(s) of resin required, the resin can either be:
(a) fed into the hopper using a system of “plumbing”, which transfers the resin from the silo to the hopper with minimal manual labour. This system of plumbing is only available for select types and blends of resin; or
(b) in some cases, transporting the resin from the silos to the hopper using steel wheelie bins. These steel bins weigh approximately 50kg when empty and as much as 300kg when fully loaded. The Extrusion Operator manually wheels these bins to the extrusion machine.
[42] Once the extrusion machine has been loaded with the correct blend, the machine heats and purifies the resin, and pushes the melted resin out through the dye face. The Extrusion Operator will generally then climb the stairs adjacent to the machine, thread a rope through the machine path, and tie that rope to the melted resin, manually pulling out the processed product to facilitate air flow. This process requires the operator to pull on a loaded rope to hoist the melted resin through various rollers.
[43] Finally, with the processed resin now in the form of a plastic film, the Extrusion Operator is responsible for wrapping the roll of film, labelling the roll, and moving the roll onto a pallet for transportation. These rolls weigh between 15kg and 400kg, depending on the size and composition of the plastic. Heavier rolls are simply rolled onto the pallet and stored on their side, however the lighter rolls need to be flipped to stand on their end, as this reduces the costs associated with transportation and storage. The Extrusion Operator is required to secure the rolls using buckles and strapping, the strapping being tightened using a manual “ratcheting” system.
[44] Each Operator is required to undertake the entirety of the process set out above as it relates to the extrusion machine they are operating, all the way from the loading of the hopper, to the stringing out of the processed resin, and, ultimately, to the rolling and securing of the rolls of plastic sheeting. This is unavoidable as the machines run at different speeds depending on equipment type and composition of plastic, such that the stage in the shift at which an Extrusion Operator commences each of the above processes is neither uniform nor predictable with any great certainty. In order to avoid downtime and inefficiencies, once an Extrusion Operator completes one stage of the process, they move onto the next.
[45] Around 70-80% of an Extrusion Operator’s shift is spent moving, strapping, and buckling the rolls of plastic film onto the pallets. The machines, once loaded, are a largely
automated process. An Extrusion Operator will also usually be required to climb the stairs adjacent to their extrusion machine on several occasions each shift in order to inspect their machine, affix ropes, and monitor the extrusion process.
[46] Regarding Mr Pradhan’s employment, in November 2018 he was issued with a formal warning for failing to follow process. On 28 August 2019, Mr Pradhan sought a meeting about a wage increase. Amcor declined Mr Pradhan’s request. On 13 December 2019, Mr Pradhan was issued with a formal warning for failing to adhere to the plan set out in his Suitable Duties Form.
[47] In or around September 2019, Workcover notified Amcor that Mr Pradhan had reported sustaining an injury to his lower back whilst at work and had made an associated claim with Workcover. Workcover provided a copy of a Work Capacity Certificate that identified Mr Pradhan was subject to the following restrictions:
• avoid bending, crouching, kneeling
• avoid frequent step up/downs
• avoid lifting > 5kgs
[48] After receiving this notification, Mr Taylor asked Chris Chandler (Safety Manager) to reach out to Mr Pradhan to discuss his injury and capacity for work. After speaking with Mr Pradhan, Mr Chandler advised Mr Taylor that Mr Pradhan had confirmed he was only available for restricted duties.
[49] Over the following months, Mr Pradhan was provided with ongoing rehabilitation support from Axis Rehab (Amcor’s on-site rehabilitation services provider). Axis also compiled regular “Suitable Duties Plans” detailing the tasks that Mr Pradhan was able to safely undertake.
[50] Around that time, Mr Taylor reviewed the duties set out in the Suitable Duties Plan Number 1, as well as the restrictions identified in the Work Capacity Certificate, and formed the view that there was little in the way of productive work that Mr Pradhan could actually undertake. Each Extrusion Operator was assigned to their own machine and was responsible for monitoring that machine and handling its output through the entirety of the production process. The vast majority of each Extrusion Operator’s role consisted of rolling, strapping, and buckling the rolls of plastic film; tasks that Mr Pradhan’s restrictions did not permit him to undertake.
[51] Mr Taylor stated that the tasks identified as suitable for Mr Pradhan did not allow him to make a productive contribution to extrusion operations at the site. Nevertheless, in order to provide Mr Pradhan with an opportunity to rehabilitate and return to full duties, Mr Taylor agreed to allow Mr Pradhan to work a significantly reduced load, performing only what duties he could within the bounds of his restrictions. Further, he agreed to extensive adjustments to Mr Pradhan’s shift arrangements in the following way:
(a) in December 2019, he offered to move Mr Pradhan from Afternoon Shift to Day Shift to accommodate his complaints that his back pain deteriorated later in the day (and continued to pay him the Afternoon Rate loadings);
(b) in January 2020, after Mr Taylor was advised that Mr Pradhan’s condition did not allow him to start before 10am, he permitted Mr Pradhan to work a “split-shift” arrangement, whereby he would work between the hours of 1000 to 1800, working across both what were otherwise a Day Shift and Afternoon Shift. Mr Pradhan was the only employee to work such an arrangement, and for its duration Mr Taylor was required to roster an extra Extrusion Operator to each of the Day Shift and Afternoon Shift to ensure continuous operation and avoid unnecessary machine shut-downs. Mr Taylor again continued to pay Mr Pradhan the Afternoon Shift loadings; and
(c) in around April 2020, Mr Pradhan requested, and Mr Taylor approved, a return to Day Shift. However, Mr Pradhan then repeatedly complained that, because of his back pain, he was unable to complete eight full hours of work. To the best of Mr Taylor’s knowledge, from around April 2020 onwards Mr Pradhan only worked, on average, around four to five hours per day, and typically commenced work late or left shift early. Nevertheless, Mr Taylor continued to pay him for the full 8-hour shift, along with his Afternoon Shift loadings.
[52] Mr Taylor stated that the consequences of Mr Pradhan’s inability to work a full shift were two-fold:
(a) first, there was the obvious loss of productivity that flowed from having one of the five operational extrusion machines sit idle for the time during which Mr Pradhan was not able to work; and
(b) second, and perhaps more consequentially, each time Mr Pradhan was unable to complete a full 8-hour shift, his extrusion machine needed to be shut down on his cessation of work. The machine could not be left running without an Extrusion Operator attending to it. As a result, at the beginning of the following shift, the machine Mr Pradhan had been operating needed to be started up again – a process that would take around two hours and require the involvement of three Extrusion Operators.
[53] Mr Taylor stated that although there were minor changes to the duties Mr Pradhan could safely undertake, at no time was he able to undertake meaningful, productive work. He stated that the operational burden of Mr Pradhan’s restrictions was significant, and led to frustration and deteriorating morale amongst the Extrusion Operator workforce. Mr Taylor stated he did his best to accommodate Mr Pradhan’s restriction on the understanding that Mr Pradhan may soon be rehabilitated and able to return to his normal duties.
[54] After learning on 22 September 2020 that Workcover had closed Mr Pradhan’s claim as his ongoing incapacity was no longer due to his work-related injury but rather to a pre-existing condition, Mr Taylor and Mr Chandler met with Mr Pradhan on 23 September 2020 to discuss his fitness for work. During the meeting:
(a) Mr Taylor advised Mr Pradhan that WorkCover had closed his claim and had communicated to Amcor that Mr Pradhan’s incapacity was no longer attributed to his work-related injury but rather to a pre-existing condition;
(b) Mr Pradhan confirmed that he was still not able to complete his ordinary duties, and that after five to six hours his back would start to hurt;
(c) Mr Taylor explained to Mr Pradhan that, in light of his injury, Amcor required him to obtain full medical clearance before he could attend work again; and
(d) Mr Taylor advised Mr Pradhan he could access his remaining sick leave and, subject to approval, annual leave, whilst he was unable to attend for work.
[55] The letter at [12] was provided to Mr Pradhan.
[56] On 23 October 2020, Mr Pradhan provided a medical certificate confirming he was unfit for his “usual occupation” through till 23 December 2020. This medical certificate did refer to Mr Pradhan being fit for “light duties” that did not include:
• ‘lifting > 10kg’; or
• ‘frequent bending/squatting/stairs’.
[57] On 26 November 2020, Mr Pradhan provided Mr Taylor with a letter titled “A formal
request for redeployment / modified duties or part time work to accommodate my present medical restrictions”, reproduced at [14].
[58] Mr Taylor determined that he could not make the arrangements or opportunities sought by Mr Pradhan. Mr Taylor sent Mr Pradhan a response to his letter at [15]. In coming to his decision, Mr Taylor stated that he gave considerable thought to whether there were any adjustments that Amcor could make to accommodate Mr Pradhan’s restrictions. He took into account the fact that Mr Pradhan could not lift objects over 10kg, could not frequently bend or squat, could not use the stairs, and other restrictions set out in Suitable Duties Form Number 29.
[59] He determined that the largest component of Mr Pradhan’s role was the rolling, strapping, and buckling of the plastic sheet – tasks that inherently require bending and squatting. Although Mr Pradhan could roll the 200kg+ rolls of plastic sheet (as these could simply be rolled onto the pallet), he could not manoeuvre the smaller rolls more commonly produced through the extrusion process as customers required smaller rolls to be flipped and stored on their end, for cost-effective transportation and storage.
[60] Mr Taylor stated that there are many weeks in which there would be no larger rolls being produced, in which case Mr Pradhan would have been unable to have made meaningful contribution to production. There were also no other mechanised lifting processes that were readily available that would have avoided the need for Mr Pradhan to flip and secure these smaller rolls without the use of at least some physical exertion.
[61] The remaining tasks that Mr Pradhan was cleared to perform (administrative duties, sweeping etc) were peripheral to his core tasks as an Extrusion Operator. Mr Taylor estimated that the duties he was approved to undertake in Suitable Duties Plan Number 29 constituted only around 20% of the work he would ordinarily be required to perform.
[62] Further, Mr Pradhan continued to advise that he was unable to work a full 8-hour shift. This limitation created a significant inefficiency for extrusion operations at the site as Mr Pradhan’s machine would need to be shut down and re-started at the start of the following shift.
[63] Mr Taylor made enquiries to determine whether there were any alternative roles to which Mr Pradhan could be assigned, however:
(a) all roles at the site are, with very few exceptions, labour intensive;
(b) the only vacancies in the relevant period were either as an Extrusion Operator, a Shift Supervisor (for which Mr Pradhan was not appropriately qualified), or in the Printing Department (a role even more labour intensive due to the need to frequently lift 15kg pails); and
(c) although the vacancy created by Mr Pradhan’s departure was filled by a forklift driver, Mr Pradhan did not hold a forklift licence so no “job-swap” would have been possible.
[64] During the determinative conference, Mr Pradhan declared that he did hold a forklift licence, however it appears that Mr Taylor was not aware of this as it was not on the relevant company register. In any event, Mr Pradhan stated that he could not safely perform the forklift driver role due to his injury.
[65] On 13 January 2021, after the site had re-opened following the Christmas shut-down, Mr Taylor emailed Mr Pradhan a letter in which he:
(a) confirmed that, as Mr Pradhan had identified in his previous correspondence, he was not able to perform the inherent requirements of his role;
(b) explained that for Amcor to continue to accommodate Mr Pradhan’s restrictions would constitute unjustifiable hardship
(c) advised that there were no other suitable roles available; and
(d) with Mr Pradhan unable to perform the inherent requirements of his role either at the present time or for the foreseeable future, Amcor intended to terminate his employment with five weeks’ notice unless Mr Pradhan provided new medical information by 25 January 2021.
[66] By 25 January 2021, Mr Taylor had not heard, or otherwise received further information, from Mr Pradhan. In circumstances where:
(a) Mr Pradhan was unable to meet the inherent requirements of his role either at the time or in the foreseeable future; and
(b) There were no adjustments or redeployment opportunities available that could accommodate Mr Pradhan’s restrictions
[67] Mr Taylor determined that the only appropriate outcome was termination of Mr Pradhan’s employment. Mr Taylor’s evidence is that the decision was solely based on Mr Pradhan’s inability to perform the inherent requirements of his role, rather than because he had been absent from work.
[68] During the determinative conference, Mr Taylor stated that there were many occasions when Mr Pradhan complained he was sore, and he would then sit in a room and do paperwork. When this occurred the machine he was operating would then need to be shut down. Mr Taylor estimated this occurred three to four times per week.
[69] At the time, Amcor was using manual timesheets, however these are no longer available to review. Mr Taylor stated that Amcor was paying Mr Pradhan eight hours per shift, however he was working far less hours than that. On some days he would perform two hours of work doing small rolls, then go and sweep. A supervisor would then have to hop on Mr Pradhan’s machine to keep it operating.
[70] Mr Taylor stated that some days there are no large rolls, and on those occasions, Mr Pradhan could not have safely operated the machines doing small rolls. Some small rolls are changed at around 13 minutes, and in that case, Mr Pradhan would need somebody to assist him. He would be unable to troubleshoot as he could not walk up and down the stairs, nor could he push the bins around.
[71] Mr Taylor estimated that Mr Pradhan was permitted to go home early three to four times per week, typically around two hours early. He would report numbness or soreness to his supervisor. Mr Taylor directed Mr Pradhan to obtain a medical certificate on these occasions.
[72] Mr Taylor stated that if Mr Pradhan had not been dismissed, the only work he could safely perform would be to sweep floors, do SOP’s, or quality check. He could not operate the machines as the small rolls are required regularly, and Amcor cannot afford to keep shutting the machine down when small rolls are required.
[73] Where Mr Pradhan suggested he could do stocktake work, Mr Taylor stated he only requires about 1.5 hours of stocktake work per week.
[74] Following the determinative conference, Mr Taylor provided a calendar of Mr Pradhan’s leave throughout 2020. Noting that Mr Pradhan was not at work from 23 September 2020, for the period January to September 2020, the calendar provides the following data;
(a) Mr Pradhan was on sick leave for 19 days;
(b) There were 18 occasions when Mr Pradhan did not complete a full shift but was paid for a full shift;
(c) There were 13 occasions when Mr Pradhan was not at work but was paid in any event;
(d) There are 29 occasions annotated as, “no time sheets, not on machine due to restrictions – full pay”;
(e) On 72 occasions Mr Pradhan was on a machine and completed a full 8-hour shift.
Evidence of Mr Chris Jakes
[75] Following the determinative conference, a witness statement was filed by Mr Chris Jakes, Day Shift Supervisor. I have had regard to Mr Jakes’ statement, noting it was served on Mr Pradhan in July 2021.
[76] Mr Jakes supervised Mr Pradhan between March 2020 and September 2020. He stated that during this time, when Mr Pradhan was at work, he was largely non-productive; he would sit on a chair at the machine and wave his hands in the air to gain the attention of other Extrusion Operator or Mr Jakes to fix his machine. Mr Jakes said that the majority of the time these issues could have been fixed by Mr Pradhan pressing buttons on the machine, but instead he called for others to fix the issue.
[77] Mr Jakes stated that Mr Pradhan was not useful during machine set-up; rather, he expected other people to obtain the resins, pull the rope and control the computer. Mr Jakes stated that it required him to organise removal of the set-up rolls, as Mr Pradhan would refuse to move the rolls, and would only take over once the machine was on the job.
[78] Mr Jakes stated he would receive constant complaints from other operators as they would run the small rolls day after day and sometimes for over a week. When they then had the opportunity to have a break while big rolls were being run, as they would take two-to-three hours, those rolls needed to be given to Mr Pradhan’s machine.
[79] Mr Jakes stated that Mr Pradhan would at times refuse to swap machines when the physio added two hours of small rolls to his suitable duties program, causing disruption with other members of staff. Mr Jakes said he would quite often perform the task himself to keep the peace.
[80] Mr Pradhan’s suitable duties list had six hours of large rolls (set between 45min to 3 hours) and two hours of smaller rolls. Mr Jakes’ evidence is that whenever Mr Pradhan refused to change machines to run the smaller rolls, he would always complain of back pain. Mr Jakes felt it was an excuse not to run the machine with the small rolls.
[81] At times, Mr Jakes had to move Mr Pradhan across three machines in a day to provide the time required between large rolls and small rolls per Mr Pradhan’s suitable duties plan. If there was a job change on the machine he was on, he would not participate in the job change; he would walk away and either sit in the tearoom or out in the smoker's hut. When I asked what he was doing he reply was, "I'm resting as my back is sore".
[82] Mr Jakes stated that his team members were getting annoyed with the lack of help from Mr Pradhan, as he was not contributing to the efficiencies of running the machines nor the department. When asked to help with small jobs like moving the finished pallets out, removing the full waste bins and pushing the buttons on the controls to help during start-ups, Mr Pradhan would often say he was going for a break as he had a sore back.
Evidence of Mr Paul Johns
[83] Following the determinative conference, a witness statement was filed by Mr Paul Johns, Afternoon Shift Supervisor. I have had regard to Mr Johns’ statement, noting it was served on Mr Pradhan in July 2021.
[84] Mr Johns worked with Mr Pradhan between August 2019 to March 2020 as his supervisor. Mr Pradhan was on light duties at this time. Mr Johns stated that Mr Pradhan always complained he had a sore back and often went home early; approximately two to three times per week.
[85] Mr Johns had to move operators of machines around to accommodate Mr Pradhan’s restrictions. He would put him on machines with the biggest rolls and longest sets, of two to three hours. However, whenever he announced that he was going home, Mr Johns then had to shut down a machine. On some occasions Mr Pradhan did not tell Mr Johns he was going home; Mr Johns had to check if his car was still there, or he would be found sitting in the lunchroom. On some occasions Mr Pradhan had left before Mr Johns’ shift commenced at 2pm.
[86] Mr Johns stated that Mr Pradhan was given a chair to sit on by his machine most of the time. Mr Johns stated that there came a point where he couldn’t find anything for Mr Pradhan to do as even sweeping the floor in the section around the machines and walkways became too difficult of a task.
[87] Mr Johns often gave Mr Pradhan the following tasks to perform, which Mr Pradhan did, until such time as he would declare he needed a break:
• Sweeping the floor
• Vacuuming up resin from reclaim boxes to bags
• Strapping up and taking away waste rolls
• Taking away finished pallets from machines
• Removing the Extrusion waste bins, weighing and labelling
Submissions of the Respondent
[88] The Respondent submitted that on the information available to it, as at January 2021, including Mr Pradhan’s various medical certificates, persistent insistence on restricted duties, and inability to obtain medical clearance, Mr Pradhan was not capable of performing the inherent requirements of his role. The Respondent submitted that Mr Pradhan has conceded this.
[89] It was submitted that the Respondent had appropriate regard to what adjustments could potentially be made to Mr Pradhan’s role to accommodate his restrictions, but none could be identified. The arrangement whereby Mr Pradhan did not operate a machine, or alternatively did so for only part of a shift, was not a tenable one given the significant hardship it imposed on the Respondent, it submitted.
[90] On Mr Pradhan’s own evidence, he could not identify relevant adjustments. It was submitted that his restrictions were such that they were incompatible with his continued employment as an Extrusion Operator.
[91] The Respondent denied that it breached sections 351 or 772 of the Act, or the Disability Discrimination Act 1992. The Respondent submitted that if Mr Pradhan considered there had been relevant breaches, he could have commenced those types of proceedings. It submitted that there is no breach if the dismissal is because of an employee’s inability to meet the inherent requirements of the role.
[92] The Respondent submitted that Mr Pradhan was advised of the Respondent’s consideration of dismissing him on account of his inability to perform the inherent requirements of the role, coupled with the unavailability of any reasonable adjustments to accommodate his restrictions. The Respondent submitted that it sought appropriate information from Mr Pradhan before the decision was made to terminate his employment.
[93] The Respondent noted that at no time did Mr Pradhan request a support person during the discussions held with him. It submitted that Mr Pradhan was not dismissed for unsatisfactory performance, and the size of the Respondent and its external human resources expertise did not have an impact on the procedures followed in effecting the dismissal.
[94] It was submitted that for 12 months or so, the Respondent afforded extensive accommodations to Mr Pradhan. He was supported to change to a more desirable shift arrangement, work significantly reduced hours, and undertake materially restricted duties, all without loss of pay. The Respondent submitted that it demonstrated great patience, and went well beyond what was required of it, in an effort to support Mr Pradhan and provide him with an opportunity to rehabilitate.
[95] It was submitted that Mr Pradhan had been far from a “model employee” prior to sustaining his injury.
[96] The Respondent submitted that termination of employment will invariably occasion some hardship 1, and it is well-established that a dismissal does not become unfair simply because the consequences for the employee are austere.2
Consideration
[97] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:3
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[98] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.4 I will address each of the criteria set out in s.387 of the Act separately.
s.387(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)
[99] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
[100] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5
[101] As of September 2020, the Respondent had been accommodating Mr Pradhan’s workplace injury for approximately one year. The Respondent enthusiastically and diligently learned of Mr Pradhan’s restrictions, obtained relevant medical advice and then provided as much safe work to Mr Pradhan as it could reasonably do so. It appropriately facilitated Mr Pradhan’s restricted duties.
[102] There is no doubt, based on the evidence of the Respondent’s witnesses, and even on Mr Pradhan’s account, he was severely limited in the amount of productive and efficient work he could perform. He was given preferential treatment to work on machines with large rolls, as the large rolls took longer to do and there was less manual lifting. Mr Pradhan could not safely, independently operate a machine where small rolls were regularly required to be lifted and removed.
[103] Further, Mr Pradhan was not useful to Amcor, as he was unable to regularly climb ladders and stairs, a requirement of the role. All sorts of accommodations were made for Mr Pradhan while ever his workers compensation claim was approved.
[104] Instantly, upon becoming aware of the decision by WorkCover to cease Mr Pradhan’s claim, the Respondent determined it could no longer accommodate Mr Pradhan’s restrictions. These restrictions, which I accept meant that Mr Pradhan could not safely perform his pre-injury tasks, were no greater or less on 23 September 2020 than they were on 22 September 2020. Mr Pradhan was, from one day to the next, dropped like a hot potato.
[105] In my experience, it is not at all surprising that an employer will investigate all appropriate accommodations it can make to an ill or injured employee where that employee has a workers compensation claim accepted. It is entirely in the employer’s best interests to ensure there is some work performed by the employee, where it is safe to do so, in order to reduce the workers compensation payments made to that employee. It is, of course, beneficial to have the relevant employee at work performing some work, in a hope they will be able to perform more and more work as the illness or injury improves.
[106] In my experience, it is equally not at all surprising that an employer might take a different approach to the accommodations it can make to an employee on account of their illness or injury where the employee is experiencing a personal illness or injury as opposed to a compensable illness or injury. An employee with, for example, a degenerative condition may be at a high risk of further injuring themselves in the workplace. A cautious employer may have relevant medical information before it to support their view that a degenerative condition may pose an unacceptable risk in the workplace and they do not wish to further injure an employee.
[107] Upon the injury moving from a compensable injury to a personal injury, Mr Pradhan was not welcome to attend for work; from one day to the next. He first went on paid personal leave, and when that was exhausted, he then took paid annual leave and long service leave.
[108] The Respondent determined that Mr Pradhan’s employment had to end on 22 February 2021. Mr Pradhan’s evidence is that this was 20 days after his paid leave had been exhausted. I understand that to mean 20 working days. That is, Mr Pradhan was on unpaid leave for approximately four weeks when he was dismissed.
[109] The letter of 13 January 2021 serves as a termination letter to Mr Pradhan, and notes that he is unable to carry out the inherent requirements of his pre-injury position and will be unable to do so in the foreseeable future. Further, there are no suitable duties for Mr Pradhan to perform.
[110] Sections 352 and 772 of the Act prohibit an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 352 is the relevant section governing Mr Pradhan’s termination as he was employed by a constitutional corporation. Regulation 3.01 is the relevant regulation and is reproduced below:
“3.01 Temporary absence—illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Note: The Act defines medical certificate in section 12.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.”
[111] Mr Pradhan was, as of 22 February 2021, temporarily absent from work because of an injury of a kind prescribed by Regulation 3.01. Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.
[112] Mr Pradhan had only been on unpaid leave for a period of four weeks when the dismissal took effect. The earlier, substantial time away from work had been taken as a mixture of paid personal leave, annual leave and long service leave.
[113] In Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves[2021] FWC 5905, I determined the following, in a similar factual scenario where Mrs Rezaeifard experienced a personal injury and was dismissed while on unpaid leave, a short while after her unpaid leave commenced:
“[107] Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
[108] Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Act not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed.
[109] Whilst it is a matter for a court of competent jurisdiction to determine if there is a breach of s.352 of the Act in the event an employee brings an application under s.365 of the Act, which Mrs Rezaeifard did not do, I do not consider it is available for the Commission to ignore the protections afforded to employees s.352 in determining an unfair dismissal claim. It is not appropriate for the Commission to determine if there has been a breach of s.352, as that is the responsibility of the court.
[110] If the Commission could not have regard to the protection afforded to employees in s.352 unless an applicant made a s.365 application, similarly it could not have regard to the protections afforded to employees in s.351, which deals with ensuring employees are protected from adverse action because of the person’s race, colour, sex and other attributes. Clearly, the Commission does take into consideration in the matters before it if employees have been dismissed on the basis of their race, colour, sex and other attributes.
[111] I am satisfied the Commission may have appropriate regard to the protections afforded to employees in those sections of the Act in determining if there was a valid reason for the dismissal. In my view, having regard for the protections afforded to employees, and determining if there is a breach of the provisions of the Act are two separate matters.”
[114] As I made clear in Rezaeifard, it is not the Commission’s task to determine if there is a breach of s.352, however, the Commission may have regard to the protections afforded to employees under the Act.
[115] Where the Respondent has submitted that it dismissed Mr Pradhan on account of him not being able to perform the inherent requirements of the role, and not because of his temporary illness, Mr Pradhan has not been able to perform the inherent requirements of his role since September 2019. Various accommodations were made for him until late September 2020, and still, he could not perform the inherent requirements of his role.
[116] The Respondent did not dismiss Mr Pradhan in late September 2020, or in October, November, December 2020, on account of him not being able to perform the inherent requirements of the role. That is so because he utilised a small amount of paid personal leave available to him before he then took annual leave and long service leave. When his paid leave was exhausted, and while Mr Pradhan’s medical condition remained the same, the Respondent then dismissed him. The only thing that had changed was the fact that Mr Pradhan had exhausted all of his paid leave and was then on unpaid leave. He was experiencing a temporary absence from work on account of his injury, and he was only four weeks into that period when he was dismissed.
[117] The Respondent’s submissions above are not accepted.
[118] The Respondent was required by law not to dismiss Mr Pradhan due to his absence from work because of his injury, within three months of his unpaid leave commencing. Mr Pradhan was a protected employee, and it was incumbent on the Respondent to permit Mr Pradhan time to see if he could recover from his injury.
[119] The appropriate process is to inform him that the Respondent has taken the view he cannot safely perform the work and there are no other roles available for him to safely perform, and all avenues of reasonable accommodation have been exhausted. Mr Pradhan should then have been placed on unpaid personal leave. A prudent employer would regularly be in touch with such an employee, and as the period of three months of unpaid leave draws near, invite the employee in for a discussion to advise that the Respondent was considering dismissing him once the period of unpaid leave had gone beyond three months.
[120] On the evidence I have before me, in all likelihood, Mr Pradhan would not have been able to perform the inherent requirements of the role in late April 2021, when the period of three months of unpaid leave would have come around and discussions could have been held with him. I am further satisfied that given Mr Pradhan’s injury, there would not have been suitable work for him to perform, even in consideration of all reasonable accommodations the Respondent could make.
[121] Mr Pradhan was not dismissed in late April 2021; he was dismissed on 22 February 2021. Having determined that the Respondent failed to have any regard to s.352 of the Act and the protection afforded to Mr Pradhan, I am not satisfied there was a valid reason for the dismissal as of 22 February 2021.
s.387(b) - Notification of the valid reason
[122] I am satisfied Mr Pradhan was informed that the Respondent considered he could not perform the inherent requirements of the role due to his incapacity.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[123] Mr Pradhan was provided an opportunity to respond to the reason put for the dismissal by the Respondent.
s.387(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
[124] There was no relevant meeting and therefore no unreasonable refusal to allow a support person.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[125] Mr Pradhan was not dismissed for unsatisfactory work performance.
s.387(f) - Whether the employer’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
[126] The Respondent is a large organisation with a dedicated human resource management specialist. The consideration within the Act is whether there was an absence of a dedicated human resource specialist, and it is implied that a smaller organisation might not be in a position to properly inform itself of the necessary procedures to follow than a larger organisation. The consideration is not whether the dedicated human resource management specialist handled the matter poorly or gave incorrect advice.
[127] Whilst it is not a consideration in this criterion, I will say that the Respondent’s failure to properly inform itself of its obligations is disappointing and disturbing given the size of the Respondent and the resources it has available to it.
s.387(h) - Other matters
[128] Mr Pradhan had almost 12 years’ service at the time of the dismissal.
Conclusion
[129] I have determined that there was not a valid reason for the dismissal.
[130] I consider that Mr Pradhan was informed of the reason for the dismissal.
[131] I am satisfied Mr Pradhan was given an opportunity to respond to any reason related to his capacity.
[132] There was no unreasonable refusal by the Respondent to allow Mr Pradhan a support person because no meeting occurred.
[133] The reason for the dismissal was capacity, not performance.
[134] The Respondent is not small and there is no absence of a dedicated human resource management specialist which impacted on the procedures followed.
[135] I determine that Mr Pradhan’s dismissal was harsh, unjust and unreasonable.
Remedy
[136] Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[137] Mr Pradhan is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
[138] Having regard to the requirements of the role and Mr Pradhan’ ongoing medical condition, I am satisfied it is inappropriate to order reinstatement as Mr Pradhan presents as an ongoing risk in the type of employment he would be required to perform. In March 2021, following the dismissal, Dr Sarkar declared Mr Pradhan unfit for work until 25 June 2021.
[139] The Respondent accommodated Mr Pradhan’s restrictions while ever the injury was compensable. I accept it did so at great cost and inconvenience to it, especially when regard is had for the many times it had to shut a machine down. It would be an incredible burden on the Respondent to have to continue to accommodate Mr Pradhan’s restrictions on account of his personal injury.
[140] I now turn to consideration of compensation.
Compensation
[141] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
[142] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.6 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;7 Jetstar Airways Pty Ltd v Neeteson-Lemkes8 and McCulloch v Calvary Health Care (McCulloch).9
[143] I have had regard to the above authorities, and I have considered the submission of each party.
The effect of the order on the viability of the respondent
[144] The Respondent is a large organisation and I am satisfied there would be no effect of the order on the viability of the Respondent.
The length of Mr Pradhan’s service
[145] Mr Pradhan was three months shy of 12 years’ service. This a very long time.
The remuneration that Mr Pradhan would have received, or would have been likely to receive, if he had not been dismissed
[146] I have determined that Mr Pradhan would have remained employed for at least a period of 13 weeks from his paid leave being exhausted, which I understand would have been around late April 2021, if the Respondent had properly considered the protections within the Act afforded to Mr Pradhan.
[147] It is noted that during this period, Mr Pradhan would have not been receiving any remuneration from the Respondent on account of being on unpaid personal leave. No other entitlements would accrue during this time.
[148] This is a matter I raised repeatedly with Mr Pradhan during the determinative conference, yet Mr Pradhan failed to have any discernible regard to the consideration the Commission must have at s.392(2)(c).
The efforts of Mr Pradhan (if any) to mitigate the loss suffered because of the dismissal
[149] Mr Pradhan was certified unfit for any work and received income protection payments.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[150] Mr Pradhan received income protection payments through his superannuation from January 2021. He estimated these payments to be approximately $1,500 per month after tax. I do not consider these payments constitute remuneration earned by the person from employment or other work and will not make any deduction.
The amount of any income reasonably likely to be so earned by Mr Pradhan during the period between the making of the order for compensation and the actual compensation
[151] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[152] While it is the case that Mr Pradhan would not have earned remuneration through the Respondent for the expected thirteen week period he should have continued to have been employed (from around 26 January 2021 when his paid leave expired), I consider it is appropriate to ensure that the Respondent, and any other employer who might consider it suitable to dismiss an employee upon them being unable to perform work on account of illness or injury, does not leap to dismissal. Employees must not be dismissed the moment their paid leave is exhausted on the pretext they cannot perform the inherent requirements of the role. If they couldn’t perform the inherent requirements of the role when they were on paid leave, and they cannot perform the inherent requirements of the role when on unpaid leave, the employee must be afforded a period of three months to see if their condition can improve. Only then should termination of employment be a relevant consideration.
[153] The Respondent had no regard for the protections afforded to Mr Pradhan. Although I have had regard to the fact that Mr Pradhan would have been on unpaid personal leave throughout February, March and most of April 2021, I do not consider it appropriate to reward the Respondent’s dismissal of him by not making any award of compensation.
[154] In my view, not making any award of compensation would potentially invite the Respondent to, in future, have similar disregard for the protections afforded to employees in the Act. Employees suffering a short-term illness or injury are often at their most vulnerable; they may be on unpaid leave and unable to obtain welfare payments on account of the illness or injury not being a long-enough period to entitle them to benefits.
Misconduct reduces amount
[155] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[156] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.10
[157] I am not satisfied that Mr Pradhan engaged in any misconduct which contributed to the Respondent’s decision to dismiss him. Accordingly, I cannot be satisfied a reduction can be made.
Shock, distress etc. disregarded
[158] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Pradhan by the manner of the dismissal.
Compensation Cap
[159] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[160] The high income threshold immediately prior to the dismissal was $153,600, and the amount for 26 weeks was $76,800. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[161] This is not an appropriate consideration given the size of the Respondent.
Order of compensation
[162] I have determined that the Respondent is to pay to Mr Pradhan eight weeks’ compensation at the rate of $32.7882 per hour for 40 hours per week, with the 39th and 40th hour paid at time and a half. I do not consider it appropriate to increase the rate by the 20% shift loading as Mr Pradhan would not have been performing any work. Further, I do not consider it appropriate to increase the weekly hours to 42, as declared by Mr Pradhan on account of two additional hours towards an RDO. 42 hours of work would not have been performed to then provide for an RDO.
[163] The amount to be ordered therefore is $1,344.32 per week.
[164] On the evidence before the Commission, it is unclear if Mr Pradhan was paid a monetary amount of notice for the period 13 January 2021 to 22 February 2021, or he was simply provided with notice of termination. The separation certificate issued to him on 23 February 2021 makes no provision for the payment of notice. If he was on unpaid leave for some of this time, I suspect the notice would have been given without payment.
[165] I will order the amount of eight weeks x $1,344.32 to be paid to Mr Pradhan, being an amount of $10,754.56 gross, to be taxed as required by law. In addition, the Respondent is to pay superannuation at the rate of 9.5% (as the Superannuation Guarantee Rate was at the time of the dismissal), being an amount of $1,021.68 into Mr Pradhan’s superannuation fund.
[166] The above amounts are to be paid within 14 days of the date of this decision.
[167] In the event Mr Pradhan was paid some notice by the Respondent in January and February 2021, the Respondent is to advise my Chambers by no later than 4:00pm AEST 21 October 2021, in which case a correction to the decision and order will be made to reduce by the amount paid in notice, the amount ordered.
[168] An Order of compensation [PR734891] will be issued concurrently with this decision.
COMMISSIONER
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1 Leadbetter v Qantas Airways Limited [2009] AIRC 131.
2 Roach v Qantas Airways Limited (AIRC, PR912545, 13 December 2001) at [27].
3 (1995) 185 CLR 410, [465].
4 Sayer v Melsteel[2011] FWAFB 7498 at [20].
5 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
6 (1998) 88 IR 21.
7 [2013] FWCFB 431.
8 [2014] FWCFB 8683.
9 [2015] FWCFB 2267.
10 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
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