Michael Burmester v JMC Automotive Group Pty Ltd
[2025] FWC 229
•29 JANUARY 2025
| [2025] FWC 229 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Burmester
v
JMC Automotive Group Pty Ltd
(U2024/7970)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 29 JANUARY 2025 |
Application for an unfair dismissal remedy – Applicant unable to fulfill the inherent requirements of his substantive role – dismissal not unfair – application dismissed.
Mr Michael Burmester has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is JMC Automotive Group Pty Ltd (the Respondent). The application was the subject of a determinative conference at which witness evidence was received from Mr Burmester, Mr Anthony Dikkenberg (former Service Manager for the Respondent), Mr Gary Clark (People and Culture Manager for the Respondent) and Mr Chris Fitzgerald (State Quality Controller/Analyst for the Respondent).
Initial matters to be considered – s.396 of the Act
The application was made within the prescribed 21-day period after the dismissal took effect (s.396(a) of the Act). There is no dispute that Mr Burmester is a person protected from unfair dismissal because he completed the applicable minimum employment period, he was covered by the Vehicle Repair, Services and Retail Award 2020 and that his annual rate of earnings was less than the high-income threshold (s.396(b)). Further, I am satisfied (and it was not in dispute) that the Respondent was not a small business employer, such that the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) does not fall for determination. Finally, it has not been claimed by the Respondent, and nor does the material before me suggest, that the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, it is not in dispute that Mr Burmester was dismissed (s.385(a)). Further, as outlined above, this is no contention that the Respondent is a small business and so no consideration of whether the dismissal of Mr Burmester was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required. Nor does the matter require the Commission to consider whether the dismissal was a case of genuine redundancy (s.385(d)). Only s.385(b) remains to be considered in this case. I must therefore determine whether the dismissal of Mr Burmester on 10 July 2024 was harsh, unjust or unreasonable.
Background
In an Employment Letter of Offer dated 22 March 2022,[1] the Respondent made an offer of employment to Mr Burmester that followed an earlier conversation between Mr Burmester and Mr Dikkenberg (a former Service Manager of the Respondent). This letter offered Mr Burmester a full-time role as a Master Technician and specifically noted: “[T]his formal letter of offer has been made on the understanding, that all going to plan, Michael will progress to become a Foreman and eventually take over the current duties performed by Peter Jennings.” There was a position description attached to the letter which recorded Mr Burmester’s job title as being that of “Master Technician, Full Time” and the main activities/tasks were outlined as being “General repairs and service of motor vehicles as directed by Service Manager.” Mr Burmester said he was very happy about the offer and chose to relocate to Hobart, leaving behind his previous position of employment in which he had been experiencing pain in his cervical spine due to his physically demanding work.
Before the determinative conference, Mr Burmester sought and obtained an order for Mr Dikkenberg to attend and give evidence. When doing so, Mr Burmester contended that Mr Dikkenberg would give evidence that he (Mr Burmester) was to be employed as the Respondent’s future Workshop Foreman, with no requirement for hands-on work beyond performing road tests, quality control and vehicle diagnosis with other technicians in a training capacity and improving the warranty claim process. Mr Dikkenberg testified that his discussion with Mr Burmester about this foreman position recognised it might be where Mr Burmester ended up if and when the incumbent foreman retired. Mr Dikkenberg said the duties of the foreman were not discussed because Mr Burmester was to be engaged as a master technician to assist other employees with diagnostics. Mr Dikkenberg also said that while Mr Burmester mentioned his neck and that he was struggling with underlifts and heavy lifting, their discussions established that Mr Burmester would still be doing disc tickets and all manner of hands-on work, but not necessarily the heavy lifting underneath cars. Mr Dikkenberg also recounted Mr Burmester mentioning relocating to Hobart because his partner lived there. Further, Mr Dikkenberg confirmed that his employment with the Respondent ceased before Mr Burmester commenced working for the Respondent.
Mr Burmester said that he worked successfully with the whole team until March 2023, at which time he requested that his contract be updated to reflect the promised job title of Workshop Foreman. Mr Burmester provided an unsigned Employment Letter of Offer dated 28 February 2023,[2] said to have effect on 1 March 2023, and confirming a new full-time position of “Foreman/Master Technician.” The position description attached to this letter recorded the changed job title of “Foreman/Master Technician, Full Time” and an increased salary, but the details of what were to be his main activities/tasks were unchanged from those outlined in the position description attached to the Employment Letter of Offer dated 22 March 2022.
Mr Burmester said that due to the workload, low staffing and the requirement to meet promised completion times, he was required by the Respondent to go ‘back on the tools’ more often. He said he informed the Respondent when the pain in his cervical spine returned and became aggravated and that he complained that the work he was being given did not match his initial agreed duties. Mr Burmester described how he was frequently required to work on hoists in the workshop that would not lift the vehicle to a height for him to be able to stand upright underneath vehicles. He said he is 190cm tall and that only two of the hoists reached the necessary height for him to be able work safely underneath. Mr Burmester asserted that he was never assigned to a specific hoist and had no choice but to use whatever was available.
Mr Burmester said that while working on a low hoist on 19 February 2024, he experienced a stabbing pain from his hips down to his legs which he later found out was a sensory nerve that had been pinched. Having attended his usual medical clinic, Mr Burmester said he had to initially see a replacement general practitioner but was able to consult his regular general practitioner, Dr Adrian Cakra, a week later. Dr Cakra provided a letter dated 28 February 2024 which stated that Mr Burmester has a chronic back and neck/spinal condition and advised that Mr Burmester needed to avoid repetitive/strenuous flexing or extending his neck and lower back, which meant no bending or working under a vehicle. Dr Cakra suggested that Mr Burmester would suit a supervisory role “until further notice in writing.”[3] Having taken paid personal leave for 8 days, Mr Burmester also had a period of unpaid leave before briefly attended work on 4 March 2024. At the determinative conference, Mr Burmester said that he had a discussion with Mr Clark and Mr Henderson on 4 March 2024, during which there was reference made to Dr Cakra’s 28 February 2024 letter. He said an agreement was reached whereby the Respondent would write to Dr Cakra seeking further information. In the subsequent briefing letter dated 4 March 2024,[4] the Respondent expressed its concern that Mr Burmester might not be fit for the inherent requirements of the role in which he was employed, put a seven specific questions to Dr Cakra, and attached a copy of Mr Burmester’s position description. The briefing letter also relevantly stated:
“It is typical that an automotive technician would perform at least 6 hours a day of medium to heavy labour, which would include extended periods of time working underneath vehicles on a hoist or bent over the bonnet of a vehicle. Much of the work of a Technician requires the bending, twisting and extending of the body to reach difficult areas while applying force of one type or another.”[5]
Following a work capacity assessment on 6 March 2024, Dr Cakra provided a report,[6] which outlined that Mr Burmester has permanent degenerative disease of the cervical spine/neck and lumbar spine/lower back which was generally a “wear and tear condition” and would gradually get worse. Dr Cakra mentioned “the relative lack” of available hoists capable of lifting vehicles high enough for Mr Burmester to be able to avoid having to duck down to assess the underneath of a vehicle or hyperextend his neck. Dr Cakra also mentioned that storing heavier equipment to the correct location could be difficult if it involved overhead arm use because it would involve hyperextending Mr Burmester’s neck, putting extra stress on his “neck spine” and accelerating the progression of his arthritis. At the determinative conference, Mr Burmester confirmed that there is always the requirement to look up when working under a hoist regardless of its height[7] and he gave an example of “storing heavier equipment” by describing the work involved with taking out a gear box or positioning it for reinstallation.[8] Dr Cakra surmised that if Mr Burmester’s role was not adjusted, the wear and tear process of his spinal bones and joints would accelerate and he expressed the view that if Mr Burmester continued in his role without modifications (i.e. access to higher hoists), his condition was likely to get worse. In a subsequent letter dated 8 March 2024, Dr Cakra also advised that should his current role not be modified, Mr Burmester’s potential deterioration would be slow. Dr Cakra opined that he would not expect Mr Burmester “to get injured or disabled within 1-2 years but more like in 5-10 years just as a rough guide.” [9] Dr Cakra suggested this could be delayed by modifying Mr Burmester’s role, having previously noted that Mr Burmester expressed the hope that he could be placed in more of an “assistance” role when it came to performing manual/laborious tasks in order to reduce the stress to his spine.[10]
Mr Burmester sent an email to the Respondent on 13 March 2024.[11] In this email, Mr Burmester declared his capability to be the workshop foreman and fitness for undertaking what he described as the typical duties of inspecting and/or checking problems or finished repairs because these only take a short amount of time to perform. Mr Burmester then listed what he considered to be his current duties and stated that he agreed to the “required changes of my current job description to minimise work under vehicles on hoists with low clearances to eliminate the aggravation of my medical conditions.”[12] Mr Burmester also described some other work he performed and, in particular, asserted he was being given additional jobs requiring lengthy periods of time working under vehicles and that he was performing 6-8 hours of overtime each week to guide, educate and support the Respondent’s technicians.
Mr Burmester subsequently attended a meeting which took place on 26 March 2024 and at which he was handed a letter of the same date (26 March 2024 Letter).[13] The 26 March 2024 letter disclosed the Respondent’s contention that while it had been aware of Mr Burmester’s underlying back and neck issues, it had not been aware of the significance of his condition until it received the letter from Dr Cakra on 28 February 2024. The 26 March 2024 Letter referred to Dr Cakra’s report dated 6 March 2024 and detailed that a review of Mr Burmester’s ‘saleable’ and ‘non-saleable’ hours had been undertaken. As to this, the Respondent acknowledged that the ‘non-saleable’ hours were not unproductive per se, because they included the diagnosis of automotive faults and issues and the supervision and training of junior staff. The Respondent stated that Mr Burmester was not considered unproductive and nor did it have issues with the “supervisory/foreman elements” of his employment. However, the Respondent indicated that it had an issue was Mr Burmester’s “inherent fitness” to safely perform his full substantive role. Through the 26 March 2024 letter, the Respondent argued that it was required to take into account “the significant amount of time” Mr Burmester spent in repairs and services when assessing his substantive role and, in turn, consider his substantive role against the medical assessment. In this regard, the Respondent asserted that it would be placing Mr Burmester at risk by retaining him in his existing role.
The Respondent conveyed its conclusion in the 26 March 2024 Letter that Mr Burmester was not currently fit for the inherent requirements of his substantive role and noted that his diagnosis indicated that his condition would not improve and would “actually get progressively worse.” Having stated that the creation of an additional nonproductive role was not currently an option, based on the current staffing levels and profitability of the service department, the Respondent advised that barring any unforeseen changes, it had no choice other than to terminate Mr Burmester’s employment due to his inability to perform the inherent requirements of his existing role. The Respondent invited Mr Burmester to consider what it had outlined and meet again two weeks later to consider any additional information or factors he wished to put forward.
A workers’ compensation claim said to have been lodged on 28 March 2024 paused the Respondent’s fitness for work assessment. There was some discussion between Mr Burmester and Mr Clark, which resulted in Mr Clark making enquiries as to whether there were automotive teaching opportunities form Mr Burmester and it would appear Mr Burmester may have been given a suitable duties certificate which Mr Clark wished to discuss with him.[14] Mr Burmester began receiving workers’ compensation benefits but his claim was disputed on the basis that his injury was not a workplace injury. This led to the relevant workers’ compensation tribunal ordering that the payment of weekly benefits cease on and from 18 June 2024. Mr Clark stated that Mr Burmester sent an email to the Respondent on 18 June 2024 with a workers’ compensation certificate dated 14 June 2024 that certified Mr Burmester for office-based duties from 1 July 2024. Mr Burmester’s evidence suggests that the return to work suggested in the certificate was for 4 hours per day, 5 days per week.[15] Mr Clark said he replied by asking whether there was any new information for the Respondent to consider, which was met with a further email from Mr Burmester on 28 June 2024 that sought permission to return to work on suitable duties. Mr Clark said he sent a reply on 30 June 2024, which advised that suitable duties were not available and that the only duties were Mr Burmester’s substantive duties, which required him to be fully fit to perform.
While this was occurring, there was also correspondence passing between the respective lawyers engaged by the parties in relation to Mr Burmester’s workers’ compensation claim.[16] On 21 June 2024, lawyers for Mr Burmester asserted Mr Burmester was fit to return to work on suitable duties on 29 June 2024, in accordance with the workers’ compensation certificate. The lawyers engaged by the Respondent replied on 1 July 2024, outlining that the Respondent intended to recommence the fitness for work assessment that had been underway prior to the filing of the workers’ compensation claim. The Respondent’s lawyers also suggested that a workers’ compensation certificate dated 14 June 2024 stating that Mr Burmester was only fit for office-based duties would present “immediate difficulties” because he was employed to perform a role “that is entirely workshop based.”
In an almost immediate reply sent on 1 July 2024, the lawyers for Mr Burmester asserted that the availability of work for Mr Burmester “may have considerable relevance in relation to the workers’ compensation claim more generally” and that Mr Burmester’s pre-injury role as a foreman was predominantly/80% non-manual. While they acknowledged that the workers’ compensation certificate detailed that Mr Burmester was not certified as suitable for the bending/twisting work required of a technician from time to time, the lawyers for Mr Burmester conveyed Mr Burmester’s belief that “there should still be ample work” he could perform which would not put him at risk of further injury. The lawyers for Mr Burmester also listed the duties they asserted were required of Mr Burmester as a Master Technician/foreman.[17] These were virtually identical to the list Mr Burmester had outlined in the email he had previously sent to the Respondent on 13 March 2024.[18]
Mr Clark stated that on Friday 5 July 2024, the Respondent sent an email to Mr Burmester requesting his attendance at a meeting to be held at 9.00am on Tuesday 9 July 2024 and outlining that this would be an opportunity for him to provide any additional information that he wanted the Respondent to consider before a decision was made on his fitness for work. A confirmation email was said to have been sent on Sunday 7 July 2024,[19] but this was met with a reply from Mr Burmester that advised he was obtaining legal advice and that either he or his lawyer would be in touch. Mr Burmester did not attend the proposed 9 July 2024 meeting.
This prompted the Respondent to send an email to Mr Burmester on Tuesday 9 July 2024 stating that while it understood Mr Burmester had some concerns, it considered it was important that he have the opportunity to present any new information or ideas that should be taken into account before a final decision was made and to that end, a meeting was proposed for 10 July 2024 at 10.00am. Mr Burmester was reminded that he could bring a witness and cautioned that if he failed to attend, the Respondent considered it would have no choice but to determine the matter based on the information it had “at hand.” Mr Clark said that Mr Burmester sent an email in reply later on 9 July 2024 stating that based on legal advice, he would not be attending the proposed meeting on 10 July 2024.
In a letter dated 10 July 2024 (the Termination Letter),[20] the Respondent outlined its position that it had given Mr Burmester the opportunity to provide any further information he considered relevant to the fitness for work assessment and the decision to be made about whether he was fit for “the inherent requirements of his pre-injury role.” The Respondent asserted that Mr Burmester had chosen not to meet and had not provided any additional information for the Respondent to consider,[21] such as suggestions of reasonable adjustments that could be made to the workplace to accommodate the restrictions that had been raised by the medical evidence. The Respondent advised that it had completed the fitness for work assessment and informed Mr Burmester that it had determined he was no longer fit to perform the inherent requirements of his substantive duties and that his condition would only worsen over time, irrespective of whether he continued to perform his substantive duties. The Respondent proffered that neither rehabilitation nor a leave of absence would change Mr Burmester’s condition or fitness for work and it indicated that while it had considered Mr Burmester’s request for a non-productive role, it had determined this was simply not viable. Specific comment was made regarding the possibility of installing a higher hoist. Having put to one side whether this was logistically or financially feasible, the Respondent ruled this out on the basis that it could not see how this would reduce the risk of further injury or deterioration given Mr Burmester would still be required to look up, and thereby place stress on his cervical spine.
Having outlined these matters, the Respondent notified Mr Burmester of its intention to proceed with the termination of Mr Burmester’s employment with immediate effect. Mr Burmester was requested to return the company vehicle with which he had been provided by 12 July 2024, together with any other property of the Respondent, whereupon he would be paid his notice and other entitlements.
Consideration
In considering whether I am satisfied that Mr Burmester’s dismissal was harsh, unjust or unreasonable (s.385(b) of the Act), I must take into account the criteria outlined in s.387 and will do so below.
Was there a valid reason for dismissal relating to Mr Burmester’s capacity or conduct? – s.387(a) of the Act
In considering s387(a) of the Act, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded”[22] and should not be “capricious, fanciful, spiteful or prejudiced”.[23]
In the Termination Letter, the Respondent stated it was terminating Mr Burmester’s employment because it had determined that he was no longer fit to perform the inherent requirements of his substantive duties. The Respondent further outlined that it had determined that Mr Burmester’s condition would only worsen over time irrespective of whether he continued to perform his substantive duties and that neither rehabilitation nor a leave of absence would change his condition or fitness for work. Finally, the Respondent indicated that while it had considered Mr Burmester’s request for a non-productive role, it had determined this was simply not viable, and as to the possibility of installing a higher hoist, this was ruled out on the basis that it could not see how doing so would reduce the risk of further injury or deterioration because Mr Burmester would still be required to look up, thereby placing stress on his cervical spine.
The consideration of s.387(a) of the Act in this case requires the Commission to consider: firstly, whether Mr Burmester was capable of performing the inherent requirements of his role as at the date of dismissal based on the relevant medical and other evidence before the Commission; secondly, whether Mr Burmester would be able to perform the inherent requirements of his role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to his role to accommodate any current or future incapacity.[24]
There was much debate as to what constituted Mr Burmester’s substantive role as at the date of his dismissal. I am not persuaded by Mr Burmester’s assertion that beyond performing road tests, quality control and vehicle diagnosis with other technicians in a training capacity and improving the warranty claim process, he was not required to perform ‘hands on work’. This was not borne out in the main activities/tasks outlined in either the Employment Letter of Offer dated 22 March 2022, or the Employment Letter of Offer dated 23 February 2023, even though Mr Burmester received a pay increase of approximately 5.9% and the latter document recorded the changed position/job title of “Foreman/Master Technician” with effect from 1 March 2023. While I have noted that both Mr Burmester and the lawyers he engaged in relation to the workers’ compensation application listed the duties they asserted were required of Mr Burmester in virtually identical terms, these did not correspond with the main activities/tasks outlined in both Employment Letters of Offer and, in particular, how they contemplated physical servicing, maintenance and repair work and the provision of assistance to staff in the performance of their duties. Mr Burmester was tasked with the same main activities/tasks in both Employment Letters of Offer and these documents specifically included the following:
“General repairs and service of motor vehicles as directed by Service Manager. All repairs to be carried out in a safe and expedite manner. Be able to complete most jobs on time or under book times”;
“Carry out basic vehicle maintenance and service and to report directly to the workshop manager whenever a task cannot be done”;
“Aim to complete most jobs in-line with better than book time for that task”;
“Follow correct procedures when carrying out service work”; and
“Legibly complete all paperwork with all details regarding works carried out and/or parts ordered.” [25]
There was no subsequent, material change in the amount of time Mr Burmester subsequently spent ‘on the tools.’ The material before the Commission satisfies me that the time Mr Burmester spent ‘on the tools’ throughout his employment was not inconsiderable. It was also relatively consistent. Contrary to the assertions of Mr Burmester regarding the extent to which he was required to perform ‘hands on work’, there was the evidence from Mr Clark and Mr Fitzgerald in relation the productivity weighting system the Respondent assigns to its Service Technicians (100% productive time), Master Technicians (50% productive time) and Foremen (20% productive time). This productivity weighting is an internal measure which comprises the weighted time available to be booked to customers of the Respondent. It represents ‘hands on’ productive time arrived at through an analysis of the codes an individual employee allocates to the daily tasks they complete, and how much of these tasks can be sold to customers, that is then matched against their actual hours of work (inclusive of overtime) recorded in the time and attendance records for the calculation of wages.[26] Mr Clark produced data which suggests that Mr Burmester’s total costed productivity levels during his tenure with the Respondent averaged 46.77%, and that this did not fluctuate greatly between the periods of his initial 13 months of employment (48.35%) and the 26-week period that preceded the letter from Dr Cakra dated 28 February 2024 (42.96%).[27] These levels were not impugned by Mr Burmester.
I am satisfied, having regard to the Employment Letter of Offer dated 22 March 2022 and the evidence of Mr Dikkenberg that Mr Burmester was engaged as a Master Technician, on a promise to become the foreman if and when that position became available, and things went well. At all material times, Mr Peter Jennings was the incumbent foreman and remained employed as such on a full-time basis, save that on occasion, Mr Burmester provided cover when Mr Jennings was absent from work. It is also significant that notwithstanding the change in Mr Burmester’s position/job title to “Foreman/Master Technician”, Mr Jennings continued on a full-time basis in the role of Foreman on and from 1 March 2023, with a job description that continued to differ from Mr Burmester’s in terms of its responsibilities, overall purpose, main activities/tasks and specific responsibilities.
As to assessing Mr Burmester’s capacity to perform the inherent requirements of his substantive duties, the evidence before the Commission was mixed.
Both parties submitted extracts from a medical report from Dr Timothy Stewart (Consultant Occupational Physician). Mr Burmester relied on the following extract, which he says came from a report dated 9 May 2024:
“Do you consider that Burmester will be able to return to his full pre injury role of Master Technician/Foreman and if so, are you able to say when this is likely to occur.
I believe that Mr Burmester was a work capacity that would need to be explored and worked through with his employer. Mr Burmester says that he was not working in that position. As to his actual role there was some disputation between Mr Burmester and his employer as to whether he was in an administrative teaching role or whether he was performing mechanical work.
Were he the Master Technician/Foreman, I believe he would not have experienced the problems that he has experienced. Mr Burmester maintains that he was in a hands-on mechanical position.”[28]
(bold emphasis in original, my emphasis underlined)
Further extracts said to have come from the report of Dr Stewart dated 9 May 2024 were relied upon by the Respondent, and outlined:
1) Mr Burmester suffers with mechanical and nonspecific pain associated with degenerative disease of the vertebral column and these degenerative changes are longstanding and did not result from his employment with the Respondent; and
2) Employment was not the major or most significant factor in the development of Mr Burmester’s current condition, and he would be in the same position without the incident said to have occurred on 19 February 2024.[29]
As I understand it, the report from Dr Stewart was obtained for the purposes of assessing Mr Burmester’s workers’ compensation claim. Further, it would seem that at the time it was obtained, Mr Burmester was not attending for work. My capacity to assess the probative value of Dr Stewart’s opinion is compromised because neither party provided his full report.
The most comprehensive medical opinion available in evidence was that of Mr Burmester’s treating general practitioner, Dr Cakra. This evidence went to Mr Burmester’s diagnosis and prognosis as at the beginning of March 2024. Dr Cakra diagnosed Mr Burmester as having permanent and degenerative disease of his cervical spine and lumbar spine which will be subject to flare ups but is treatable with rest and medication, opining that this will gradually get worse over time. Having reviewed the position description of Mr Burmester attached to the Employment Letter of Offer dated 23 February 2023, Dr Cakra observed that the duties involved general repairs and service of motor vehicles, and that Mr Burmester had confirmed these “would involve manual/heavier tasks.”[30] As to the duties, Dr Cakra stated that Mr Burmester could perform them, but he would need some adjustment or assistance.
The adjustment or assistance referred to by Dr Cakra was the suggestion that Mr Burmester be placed, if possible, in more of an “assistance” role when it comes to performing manual tasks so as to reduce stress on his spine. An alternative measure suggested by Dr Cakra was for Mr Burmester to avoid heavy overhead lifting and have access to higher hoists.[31] As noted above at [8], Dr Cakra had earlier advised the Respondent, by letter dated 28 February 2024, that Mr Burmester needed to avoid repetitive/strenuous flexing or extending his neck and lower back, which meant no bending or working under a vehicle and, further, that he was suited to a supervisory role.
As has been outlined by the Full Bench of the Commission in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes:
“In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.”[32]
(my emphasis, reference omitted)
I am satisfied that Mr Burmester’s substantive role of Foreman/Master Technician required him to allocate a regular and substantial amount of his working day to ‘hands on’ servicing, maintenance and repair work. Dr Cakra suggested that Mr Burmester would need some adjustment or assistance to be able to perform the inherent requirement of his substantive role and to prevent his condition from getting worse, suggesting that Mr Burmester be moved into more of an “assistance role” that relieved him of manual tasks. It is also open to discern that the opinion of Dr Stewart regarding Mr Burmester’s capacity to return to work may have been that he be placed in an “administrative teaching role.” Having regard to this medical evidence, I consider it was open to conclude that Mr Burmester was not capable of performing the inherent requirements of his substantive role of Foreman/Master Technician.
Dr Cakra expressed the view that Mr Burmester’s condition is permanent, degenerative and gradually going to get worse over time and stated that without modification to his current role, Mr Burmester’s condition will likely worsen. Dr Cakra suggested that this potential deterioration would be slow if Mr Burmester continued in his current role unmodified and that he did not expect Mr Burmester “to get injured or disabled within 1-2 years but more like in 5-10 years just as a rough guide.” [33] This leads me to also conclude that Mr Burmester would not be able to perform the inherent requirements of his role in the future.
As to whether there was some reasonable adjustment which could be made to Mr Burmester’s role to accommodate any current or future incapacity, I note that Mr Jennings continues to serve as the Foreman in a full-time capacity and accept that the Respondent does not require, and nor can it sustain, two Foremen at Mr Burmester’s former place of work. I have also noted that Mr Jenning’s costed productivity levels as foreman during Mr Burmester’s total tenure with the Respondent averaged 27.09%.[34] While this reflects the different roles they were engaged to perform, it also indicates there was also a not insignificant component of ‘hands on work’ imposed on Mr Jennings as well. I have noted the evidence of Mr Edwards that the position of Foreman is physical and that a Foreman can at times be required to work under a vehicle with a hoist, or contort themselves under a dashboard or bend over an engine bay.[35] I also note that when detailing of the staffing structure in its workshop, the Respondent referred to the non-productive roles and their responsibilities and I observe that during the period between the commencement of Mr Burmester’s employment and Mr Burmester’s episode at work on 19 February 2024, the Respondent engaged two “additional non-productive roles.”[36] In this regard, the Respondent had advised Mr Burmester in its letter of 26 March 2024:
“Given that these two additional roles have a similar focus to the role you are seeking, that being to support, train and mentor staff, it is the view of the Company that, regardless of your noted and valued expertise, we are not able to create an additional nonproductive role.”[37]
I further note that Mr Clark gave the following evidence, which was not challenged:
“Then if we go to 186 I actually tried to look at that from unapplied time, available hours to try and assess how is the department actually tracking, and that still reflected the fact that when we look at gross per day per employee, so that means how much income each employee was generating in the business, there was a peak which came around the December period, December 2022 period, to probably February 2022, but then there has been a general decline, an average consistent decline, in the gross each employee’s contributing to the business.
Now, I haven’t included in these figures, or haven’t made this observation, the service department at Campbell Street is a multimillion dollar operation that charges out or does an enormous amount of work. Last financial work the department only made $74,000. Michael’s wages were in excess of that. When we look at could we absorb and create an additional non productive role for Michael, it was not financially viable.”[38]
On the basis of this evidence, I am not persuaded that changing Mr Burmester’s role into one that could accommodate both his physical limitations and prognosis would have constituted a reasonable adjustment. Even if Mr Burmester devoted most or all of his working time to diagnosing service, maintenance of repair work, another technician would be required to perform those components of the diagnosed works that lie outside the limits of his physical capability. Having regard to the evidence that was given relating to the performance of software updates, I am not persuaded that adjusting the way in which such work is allocated so that it all would be henceforth performed by Mr Burmester would have kept him in a viable full-time position. This is because the volume of software update work that might be available is dependent on the volume and timing of bookings made and in certain circumstances, it will be more efficient to have a particular software update performed by the technician who is also responsible for completing a range of other tasks required to be performed on a vehicle.
As to the question of the hoists that Mr Burmester might use in the Respondent’s workshop, I accept the Respondent’s evidence that they all have the same lifting capacity and in particular, the same length/stroke hydraulic cylinders. I note that this equates to a 1896mm lifting height, which can be increased to over 2000mm using adaptors, and depending on the vehicle.[39] I also accept that the height to which a particular hoist might be raised varies according to the height of the roofline under which it is located and the particular vehicle that is being worked on. The evidence suggested that while certain jobs could conceivably be allocated to Mr Burmester using a hoist located in a particular place within the workplace that would best accommodate his height, this would sometimes only be able to be done once an initial diagnosis of the mechanical issue had been completed and even then, Mr Burmester would still be required to move his neck in order to look upwards when performing the necessary work. I accept that some neck movement would still be required even if the Respondent found a different type of hoist but further note that this also assumes that any requisite capital expenditure on the part of the Respondent to acquire and install it would be both affordable and reasonable.
Finally, with Dr Cakra having expressed the view that Mr Burmester’s condition is permanent, degenerative and gradually going to worsen over time, I consider it is not unreasonable to assume that more adjustments would be required to accommodate his future incapacity.
Having regard to these various considerations, I am persuaded there was a valid reason for the termination of Mr Burmester’s employment and that this weighs against a finding that his dismissal was unfair.
Notification of ‘that reason’ – s.387(b) of the Act and Opportunity to respond to ‘any reason’ related to the capacity or conduct – s.387(c) of the Act.
Consideration of s.387(b) of the Act in this matter requires asking whether Mr Burmester was notified of ‘that reason’, which is a reference to the valid reason(s) referred to in s.387(a) of the Act. I note the 26 March 2024 Letter foreshadowed the reasons why the Respondent was considering the termination of Mr Burmester’s employment at that time and that these reasons were essentially the same as those outlined in the Termination Letter. I am therefore satisfied that Mr Burmester was notified of the valid reason. As to the respects in which the reasons outlined in the Termination Letter differed, I consider the differences did not alter the underlying basis for the Respondent’s decision to dismiss Mr Burmester. Rather, they covered the Respondent’s response to Mr Burmester’s purported request for what the Respondent described as a ‘non-productive role’, the Respondent’s views about the utility of rehabilitation and/or a leave of absence and the viability of installing a higher hoist. In this case, I do not consider the s.387(b) consideration weighs in favour of a finding of unfairness.
The meeting which took place on 26 March 2024 and, more particularly, the 26 March 2024 Letter afforded Mr Burmester an opportunity to respond and provide any additional information that he wanted the Respondent to consider before a decision was made regarding his fitness for work. The 26 March 2024 Letter referenced the correspondence that had passed between the Respondent and Dr Cakra and the specific aspects of Dr Cakra’s opinion which had formed the basis for the Respondent’s views. The 26 March 2024 Letter also outlined other information upon which the Respondent was basing it view that it had no choice but to terminate Mr Burmester’s employment. Further, an email sent by the Respondent to Mr Burmester on 5 July 2024 requested his attendance at a meeting on 9 July 2024, at which he was to have the same opportunity to respond and provide any additional information. The Respondent subsequently rescheduled the proposed 9 July 2024 meeting, but Mr Burmester stated that, based on legal advice, he would not be attending the rescheduled meeting on 10 July 2024. At this point, Mr Burmester was cautioned that if he failed to attend, the Respondent was of the view that it would have no choice but to determine the matter based on the information it had “at hand.”
Having regard to the circumstances of this case, I am satisfied Mr Burmester was on notice of the prospect of his dismissal and the underlying reasons as to why it was being considered prior to the decision to terminate his employment being made. In terms of the s.387(c) consideration under the Act, I am satisfied Mr Burmester was given an opportunity to respond to the reasons related to capacity that the Respondent gave for his dismissal and as such, it is not a factor that weighs in favour of a finding of unfairness.
Any unreasonable refusal by the employer to allow a support person – s.387(d) of the Act
Mr Burmester’s has expressed concern that he was not advised that he could have a support person at the meeting on 26 March 2024 until it was due to begin but also indicated that he did not otherwise ask to have a support person attend.[40] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[41]
The facts of this case do not disclose that there was any unreasonable refusal to allow Mr Burmester a support person to be present to assist at any discussion relating to his dismissal. Accordingly, I find this consideration to be a neutral consideration.
Warnings regarding unsatisfactory performance – s.387(e) of the Act
As Mr Burmester was not dismissed on the basis of unsatisfactory performance, this factor is not a relevant consideration.
Impact of the size of the employer on procedures followed – s.387(f) of the Act and absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g) of the Act
I have noted that the Respondent had 380 employees at the time of Mr Burmester’s dismissal and that it has not submitted s.387(f) of the Act is a relevant consideration. I do not consider the Respondent’s size impacted on the procedures followed in any discernible respect. In terms of s.387(g) of the Act, I observe that the Respondent had access to Mr Clark (People and Culture Manager of the Respondent) at the material times. As such, s.387(g) is not a relevant consideration in this case.
Other relevant matters – s.387(h) of the Act
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
Mr Burmester argued that he was not allocated the duties he was hired to perform, and that the Respondent’s workshop was under-resourced, which resulted in him having to perform more work on the tools than he was obligated to carry out. Mr Burmester also claimed he received no support from the Respondent and suggested that the process by which his employment was terminated was rushed, with the result that the possibility of him working part-time was neither considered nor discussed. Mr Burmester asserted that while he was absent due to his injury, he was directed not to attend the workplace and discuss possible solutions with his work colleagues and proffered that he could have been considered for the position that had been created for the administration of warranties which was offered to someone else.
As to these matters:
Mr Burmester was primarily employed as a Master Technician and both Employment Letters of Offer discussed above outlined the requirements that he engage in physical servicing, maintenance and repair work, carry out the duties and responsibilities in his job description and perform any other role within his skills, competence and training, when directed to do so;
The evidence going to the performance of the business did not suggest the business was under resourced and instead suggested that the Respondent had virtually no capacity to absorb an additional role in its workshop operations that was ‘non-productive’ in commercial terms;[42]
Mr Burmester conceded that he himself did not raise part-time work during the pre-dismissal dialogue but in any event, I note the Respondent gave some consideration to a part-time teaching role, but ultimately concluded it was not viable;[43]
Mr Burmester’s workers’ compensation claim process appears to have had the effect of placing the parties’ dialogue and the assessment of other options on hold, but once resolved, the Respondent sought to resume dialogue with Mr Burmester;
When the parties were able to engage in dialogue, Mr Burmester had a tendency to focus almost exclusively on the Foreman role;[44]
Although he was invited to do so and was given a number of opportunities, Mr Burmester elected not to meet and discuss his employment circumstances and nor did he provide any information in response to the matters the Respondent raised in the 26 March 2024 Letter beyond his own conception of the duties of his substantive position that he had first provided on 13 March 2024; and
The Respondent addressed the administration of warranties position, which appeared to have been raised by Mr Burmester for the first time at the determinative conference, by stating it was located at another site in an outer suburb of Hobart and that it had become available when Mr Burmester was absent from work and pursuing his workers’ compensation claim.
Mr Burmester was clearly a very conscientious worker for the Respondent who took great pride in his work. Mr Burmester actively assisted and trained the more junior employees and made a significant contribution to the operations of the workshop by applying his diagnostic skills. His valuable contribution was freely acknowledged by Mr Clark, Mr Kerr, Mr Fitzgerald and Mr Edwards. There were no efficiency or productivity issues asserted by the Respondent in relation to Mr Burmester’s work performance and Mr Burmester clearly enjoyed working as part of the Respondent’s team. Apart from the financial impact consequent on losing his employment, Mr Burmester has had to cancel his residential lease and is grappling with the reality of pursuing new employment in a location where the opportunities for him to maximise his experience as a Master Technician of Volkswagen vehicles are limited. It is evident that Mr Burmester is a man of character who is striving to manage the challenges of his physical condition without giving up his pursuit of alternate employment. This includes exploring employment in a teaching/training capacity, something with which the Respondent has offered to assist.
Conclusion
As outlined above, I have been persuaded there was a valid reason for Mr Burmester’s dismissal related to his capacity. I am satisfied that Mr Burmester’s substantive role of Foreman/Master Technician required him to allocate a regular and substantial amount of his working day to ‘hands on’ servicing, maintenance and repair work. Having regard to the medical evidence before the Commission, I consider it was open to the Respondent to conclude that Mr Burmester was not capable of performing the inherent requirements of his substantive role at the time of the dismissal or at some time in the future. As to adjustments which could have been made to Mr Burmester’s duties to accommodate his current and future incapacity, I have not been persuaded those identified were reasonable, despite Mr Burmester’s various suggestions and the range of considerations that were contemplated by the Respondent. To reorganise the various tasks within the workshop so Mr Burmester could avoid duties that were unsafe for him to perform would have represented a transformation of his substantive position into one modified and restricted in order to accommodate his impairment. It would have required constant monitoring and the involvement of other technicians. For example:
Even if Mr Burmester could be allocated work at hoists that could be raised to maximum height, he would still be required to bend his neck to look up while performing his work;
The volume and timing of software updating work was not consistent and nor could it be easily grouped with training and diagnostic work so as to create a sustainable fulltime position;
Restricting Mr Burmester to work that was ‘safe’ for him to perform would require other technicians to be on hand to cover and complete the more manual tasks a given, assigned job required; and
The Respondent had virtually no capacity to absorb an additional role in its workshop operations that was ‘non-productive’ in commercial terms.
I am satisfied that Mr Burmester was notified of the valid reason for his dismissal and given an opportunity to respond. I am also satisfied that none of the factors in ss.387(d)-(g) of the Act are enlivened in this case in a manner that weighs in favour of a finding of unfairness. As to the matters falling within s.387(h) of the Act, I do not consider that they so strongly outweigh the other factors in s.387 so as to favour a finding that Mr Burmester’s dismissal was harsh, unjust or unreasonable. The sad reality that has confronted the parties in this case is that Mr Burmester has a permanent, degenerative arthritic condition affecting his neck and back that has rendered him unfit to perform the volume of physical labour that was an inherent requirement of his substantive role. Mr Burmester’s physical condition was only going to worsen, and I have not been persuaded that there were reasonable adjustments which could have been made to his substantive role to accommodate his current or future incapacity.
Having made findings in relation to each matter specified in s.387 of the Act and given due weight to each, I am satisfied the dismissal of Mr Burmester was not harsh, unjust or unreasonable. Accordingly, I find that Mr Burmester’s dismissal was not unfair. As I have found that Mr Burmester’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
DEPUTY PRESIDENT
Appearances:
Mr M Burmester on his own behalf
Mr G Clark on behalf of JMC Automotive Group Pty Ltd
Hearing details:
2024.
Hobart.
14 October.
[1] Exhibit A6 – Digital Court Book (DCB) at 30.
[2] Exhibit A7 – DCB at 42.
[3] DCB at 151.
[4] DCB at 148.
[5] DCB at 149.
[6] Exhibit R7 – DCB at 152.
[7] Transcript PN 747-748.
[8] Transcript PN 749-758.
[9] DCB at 154.
[10] Exhibit R7 – DCB at 152..
[11] DCB at 155.
[12] DCB at 156.
[13] Exhibit A8 – DCB at 53.
[14] Exhibit A10 – DCB at 59.
[15] DCB 6 and DCB 19.
[16] DCB at 219-225.
[17] DCB at 220-221.
[18] DCB at 155-156.
[19] Mr Burmester confirmed receiving the email correspondence sent on 5 and 7 July 2024 – Transcript PN 972.
[20] Exhibit A9 – DCB at 57.
[21] See PN 942, PN 966968 and PN 971.
[22] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[23] Ibid.
[24] Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes [2013] FWCFB 9075 at [53] and CSL Limited T/A CSL Behring v Chris Papaioannou[2018] FWCFB 1005 at [50] and [77].
[25] DCB at 40 and 51.
[26] Transcript PN660-663.
[27] DCB at 184.
[28] Exhibit A5 - DCB at 76.
[29] Exhibit R18 - DCB at 214.
[30] Exhibit R7 0 DCB at 152.
[31] Ibid.
[32] [2013] FWCFB 9075 at [53].
[33] DCB at 154.
[34] Ibid.
[35] DCB at 143.
[36] On 5 May 2023, the Respondent engaged a Workshop Manager and on 2 October 2023, the Respondent engaged a Quality Controller.
[37] Ibid at DCB 55.
[38] Transcript PN 683-684.
[39] Transcript PN 781 and Exhibit R11 – DCB at 190.
[40] DCB at 17.
[41] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
[42] Transcript PN 676 - 684 and DCB at 185-186.
[43] Transcript at PN 1048.
[44] Transcript at PN 968.
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