Md Tarequr Rahman v Coles Supermarkets Australia Pty Ltd

[2020] FWC 617

[2020] FWC 617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Md Tarequr Rahman
v
Coles Supermarkets Australia Pty Ltd
(U2019/10849)

DEPUTY PRESIDENT CROSS SYDNEY, 7 FEBRUARY 2020

Application for an unfair dismissal remedy - application dismissed

[1] This is an application, made pursuant to s.394 of the Fair Work Act 2009 (the Act), by Md T Rahman (the Applicant), in respect of the alleged termination of his employment by Coles Supermarkets Australia Pty Ltd (the Respondent) on 13 September 2019 (the Application).

[2] The Application is opposed by the Respondent on the basis that the Application is beyond jurisdiction because the Applicant has not been dismissed, and remains an employee of the Respondent.

[3] On 11 December 2019, I convened a directions hearing to outline how the Commission would determine the Respondent’s jurisdictional objection. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The directions timetable was as follows:

“1. The Applicant (Mr Md Rahman) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of his jurisdictional objection (the ‘Jurisdictional Objection’) in this matter by no later than 4.00pm on 24 December 2019.

2. The Respondent (Coles Supermarkets Australia Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the Jurisdictional Objection by no later than 4.00pm on 24 January 2020.

3. The Applicant (Mr Md Rahman) is directed to file with the Fair Work Commission, and serve on the Respondent, a reply to the Respondent’s opposition to the Jurisdictional Objection by no later than 4.00pm on 31 January 2020.

4. The parties should refer to the information sheet attached which provides explanatory information about these directions.

5. The matter has been listed for Jurisdictional Hearing on 5 February 2020 at the Fair Work Commission in Sydney.

6. If either party wishes to vary these directions, they can make an application to do so in writing directly to the Member’s Chambers.”

[4] Pursuant to the above directions, the following materials were filed:

(a) On 22 January 2020, the Applicant filed an outline of submissions; and

(b) On 24 January 2020, the Respondent filed an outline of submissions, a statement of Mr Daniel Huarye, the former Store Manager of the Respondent’s Randwick store dated 23 January 2019 (sic.), and a Statement of Mr Hamid Amini, the Health and Wellbeing Advisor of the Respondent dated 22 January 2019 (sic.).

[5] The Applicant did not file material in reply, notwithstanding direction to do so. At the commencement of the jurisdictional hearing on 5 February 2020 (the Hearing), enquiry was made of the Applicant as to whether he wished to reply to the material of the Respondent. The Applicant indicated that he did not wish to reply to that material.

[6] In the Hearing, both Mr Huarye and Mr Amini attended to give evidence. Some questions were asked of Mr Huarye, but Mr Amini was excused immediately after affirming the contents of his statement as the Applicant indicated that he had no questions to ask Mr Amini. I observed Mr Huarye to be a considered, reliable and responsive witness and I accept his evidence. Where the Applicant’s submissions and assertions differ from the evidence of Mr Huarye, principally in relation to whether the Applicant was offered duties known as “assisted check out duties” (ACOs) and that he refused those duties, I prefer the evidence of Mr Huarye.

Facts

[7] Arising from the evidence in this matter, I find the existence of the following facts:

(a) The Applicant commenced employment with the Respondent on or around 5 September 2007. The Applicant was employed in the position of a store Team Member at the Respondent’s Randwick store on a full-time basis (the Position).

(b) On or around 15 October 2015, the Applicant sustained a workplace injury. On or around 19 October 2015, the Applicant returned to work on modified duties and hours (20 to 25 hrs per week) in accordance with information about the Applicant’s capacity from his treating medical practitioner.

(c) On 2 May 2017, the Applicant underwent shoulder surgery and was certified by his treating medical practitioner as being unfit to perform any of the duties of the Position from 2 May 2017 unfit until 10 September 2017.

(d) On 11 September 2017, the Applicant returned to work on modified duties and hours in accordance with his treating medical practitioner’s recommendations. The Applicant initially performed modified duties for 12 hours per week, increasing to 24 hours per week by 14 May 2018. The Applicant’s modified duties included stock markdowns, ticketing, store presentation tasks and returning loose light stock to shelves, increasing to additional duties by 30 October 2018, including ACOs and service on door greeting.

(e) Mr Huarye commenced in the position of Randwick Store Manager in April 2019. Mr Huarye gave evidence that the Applicant usually worked 6 hours per day, 4 days per week, and he undertook modified duties including code checking and “facing up”. “Facing up” means bringing products forward to the front of a shelf or organising products neatly on a shelf. The Applicant was also restricted from lifting more than 2kg. Mr Huarye became aware that the Applicant’s workers’ compensation payments were about to cease, and he had a discussion with the Applicant regarding his ongoing capacity to perform the Position, given that the Respondent did not have sufficient facing up or code checking duties hours for 24 hours of work per week, let alone 38 hours of work. Mr Huarye offered the Applicant work on the ACOs, given that it does not require any lifting and it predominantly involves assisting customers using the ACOs. The Applicant told Mr Huarye he did not want to work on the ACOs. Mr Huarye also offered the Applicant duties including door greeting and code checking.

(f) On or around 15 April 2019, after less than two days of door greeting duties, the Applicant informed the Respondent that he was having pain, discomfort and difficulties completing the door greeting duties and ACOs. The Applicant’s treating practitioner subsequently removed those duties from his return to work plan.

(g) In order to understand the Applicant’s capacity and any modifications that might enable him to perform the Position, the Respondent requested medical information from the Applicant’s treating practitioner, who informed the Respondent about the Applicant’s ongoing pain and work restrictions. Mr Huarye provided the Applicant with a work capacity checklist and asked him to arrange for his treating medical practitioner to complete it. The Applicant provided a medical certificate dated 2 August 2019 from Dr Srividya Ravi certifying him as having “ongoing left shoulder, neck and upper back pain,” and having “restricted duties 6 hours a day, 4 days a week,” and being able to “lift 5kg bilaterally and only 2kg with left,” and “restricted pulling and pushing.”

(h) Based on the work capacity checklist and the Applicant’s own reported pain when performing the modified duties, Mr Huarye decided the Applicant could not safely return to his pre-injury full time role, nor perform the reduced hours and modified duties, without risk of exacerbating his condition. While the Randwick store could previously provide enough code checking work to occupy the Applicant for about 12 hours per week (3 hours per day, 4 days per week), due to improvements in business efficiencies the Respondent no longer needed anyone to perform as much code checking work, and there were only approximately 6 hours per week of code checking work available to offer to the Applicant. As code checking was the only duty the Applicant reported he could complete within his medical restrictions and without pain, Mr Huarye decided the Respondent could not support his reduced hours and stringent restrictions on an ongoing basis. Mr Huarye also considered the Applicant’s condition seemed to be deteriorating rather than improving, and it seemed unlikely he would be able to return to his pre-injury position without significant risk of exacerbation of his injury and pain.

(i) On 13 September 2019, Mr Huarye and Mr Amani met with the Applicant and discussed the information from his treating practitioner (the Meeting). The Applicant expressed that he was experiencing ongoing pain and discomfort when performing the modified duties. At the Meeting, the Respondent informed the Applicant that it would withdraw his duties until his capacity improved, based upon the medical information from the Applicant’s treating practitioner that he was unfit to perform his duties of the Position, the Applicant’s reported pain when performing modified duties, the Applicant’s lack of capacity to perform the Position since his 2015 injury, and the Respondent’s inability to offer modified duties on a permanent basis.

(j) In the Meeting Mr Huayre and Mr Amini stated at least four times that the Applicant was not being dismissed, stating words to the effect of “you are not being terminated and you will still be a Coles team member.” The Applicant requested a letter confirming the outcome of the Meeting and was provided with a letter dated 13 September 2019, in the following terms:

“I refer to our meeting on13 September 2019.

The purpose of this meeting was to discuss the outcome of the requested medical information from your treating practitioner in relation to your capacity to work at Coles Supermarkets

As you were advised at this meeting:

● we have examined the information recently provided by your medical practitioner;

● in the reasonably foreseeable future you will not be able to carry out all of the inherent requirements of your pre-injury duties nor are there any reasonable accommodations which Coles Randwick could make to enable you to do so; and

● the decision has been made that there is no suitable role for you at the Store within your work restrictions.

This decision does not mean that your employment is being terminated. You are still a Coles Supermarket team member while your duties have been withdrawn.

I will maintain contact with you every 4·6 weeks to see how your injury is progressing, and of any updates in the store. If at any stage, you believe your capacity has improved, please provide me with updated medical information so we can re-assess your ability to safely perform in your pre-injury role.

If your capacity remains that you cannot carry out all of the inherent requirements of your pre-injury duties and you are unlikely to be able (sic) to do so for the foreseeable future, we will need to review your ongoing employment. This step will not be undertaken until the actions above have occurred and this matter is discussed further with you.”

(k) By 30 October 2019, the Applicant had exhausted his accrued personal leave and annual leave. On 19 December 2019, Mr Huarye sent a text to the Applicant asking if he wished to apply for long service leave. The Applicant continues to accrue personal leave as he is still on the Respondent’s payroll system.

Consideration

[8] In order for a person to bring an application under section 394 of the Act, the person must have been dismissed. Section 386(1) of the Act provides that a person has been dismissed if:

“(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[9] The Applicant appears to contend that the Meeting or the letter dated 13 September 2019 constituted termination of the Applicant’s employment on the employer’s initiative. That contention, however, is not supported by the evidence. In the Meeting and the subsequent letter, the Applicant was clearly and repeatedly informed that his employment was not terminated and he would remain a Coles team member, but that his duties were withdrawn until such a time as he could demonstrate capacity to perform the Position.

[10] The Applicant also makes a submission that is seemingly directed to fairness but which also encompasses whether dismissal occurred as follows:

“Unfair because after injuries I have been working for 4 years until dismissed “suddenly was told no duties for me , but acutely Coles has duties for me . Such as self checkouts (open from 6am to midnight). code check, stock count, point of sale etc “ which I have been doing after the accident.” (Original text retained)

[11] The above submission is not reflective of the evidence of the reduced availability of light duties work at the Randwick store, and the significant medical restrictions on the ability of the Applicant to perform any duties, let alone the inherent requirements of the Position and his pre-injury duties.

[12] The Applicant was not dismissed within the meaning of “dismissal” in section 386(1) of the Act. Rather, the Applicant was, and is still, employed by the Respondent. While the Applicant has not worked since the Meeting, for the reasons outlined in the letter of 13 September 2019 the Respondent has not terminated the Applicant’s employment. The Applicant’s current and ongoing employment with the Respondent is evidenced by:

(a) The fact that the Applicant remains on the Respondent’s payroll system;

(b) The continued accrual of personal leave by the Applicant, and that other forms of paid leave have been accessed by the Applicant since 13 September 2019; and

(c) That the Applicant has not been given notice of termination of his employment, and has not been given an employment separation certificate.

[13] The Respondent’s withdrawal of the Applicant’s duties does not amount to a “dismissal” as defined in s.386 of the Act because the Applicant’s employment has not been terminated on the Respondent’s initiative (section 386(1)(a)). The employment has not been terminated at all, nor has the Applicant been forced to resign from his employment (section 386(1)(b)) 1.

[14] The Applicant’s application is beyond jurisdiction. His application is dismissed.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared on his own behalf

Ms S Blackman appeared for the Respondent; with her Ms S Sunder

Hearing details:

2020

Sydney

February 5

Printed by authority of the Commonwealth Government Printer

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 1   Mijaljica v Venture DMG Pty Ltd[2012] FWA 2071.