Mr Allan John Button v J Boag & Son Brewing Pty Ltd
[2010] FWA 148
•13 JANUARY 2010
Note: An appeal pursuant to s.604 (C2010/2675) was lodged against this decision - refer to Full Bench decision dated 26 May 2010 [[2010] FWAFB 4022] for result of appeal.
[2010] FWA 148 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
J Boag & Son Brewing Pty Ltd
(U2009/12078)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 13 JANUARY 2010 |
Application for unfair dismissal remedy – inherent requirements – modified duties – post-employment discovery.
[1] Mr Allan John Button was employed by J Boag & Son Brewing Pty Ltd (Boags) from 20 June 2005 until his employment was terminated on 1 September 2009 because he was unable to fulfil the inherent requirements of his job.
[2] The difficult question that arises in this case is, whether in the circumstances, the termination of Mr Button’s employment was unfair such as to invoke the protections of Part 3-2 of the Fair Work Act 2009.
THE FACTS
[3] The facts are, to a large extent, not in dispute.
[4] Boags was acquired by Lion Nathan Limited some time in 2008. Because of the conflict in the statements filed on behalf of Boags, it is impossible to be definitive. 1
[5] The Mr Button was diagnosed with a hereditary urological condition at an early age, but with the assistance of an ilial conduit and a urinary bag he has successfully been able to manage his condition.
[6] Mr Button had worked at Boags in Launceston as a brewery technician or operator since the commencement of his employment there. As a brewery technician he was responsible for tending to machines such as filling machines, case running machines and wrapping machines to prepare product for shipment. His job involved lifting, pushing and pulling of weights of more than 5kg. When there was a change of product, which occasionally could occur twice in a shift, machinery needed to be disassembled and re-assembled, involving frequent lifting of more than 5 kg and the assumption of awkward positions.
[7] In March 2008 Mr Button developed an abdominal hernia in the vicinity of his urinary bag. He informed his employer of this and continued working. The evidence is not clear as to whether or not his duties were modified at this time, although Boags’ Health and Safety Coordinator for Tasmania, Chantelle Williams, assisted in the management of his situation. 2
[8] In August 2008, Mr Button visited his urologist, Dr Pan, who, on 11 August 2008, wrote to Mr Button’s GP noting that his hernia had increased in size and that he had strongly advised Mr Button to avoid any heavy lifting, especially anything in excess of 5 kg, otherwise his hernia would get bigger and would require surgical repair in the future. 3
[9] Following his visit with Dr Pan, the applicant advised Ms Williams of the outcome. Again the evidence is unclear, but it seems to be generally accepted that Ms Williams arranged for an Occupational Health & Safety consultant to assess Mr Button’s fitness to perform his duties. On 24 October 2008 a “Worksite Assessment Report” was provided by a Melanie Barr of Advanced Personnel Management to Ms Williams. 4 The report noted that:
- when Mr Button had undergone an operation to replace his urinary bag the presence of a hernia had been identified;
- an operation to eliminate the hernia would also require a further operation to replace the bag;
- Mr Button was not due to undergo a further operation to replace the bag for approximately 10 years;
- Medical staff were reluctant to operate on the hernia;
- Mr Button should avoid strenuous activity including kneeling, squatting, lifting above 5 kg; lifting from floor level, running or jumping;
- Mr Button’s restrictions would continue until he underwent a further operation.
[10] From late October 2008 Mr Button performed his duties as a brewery operator whilst observing the restrictions suggested by Ms Barr. 5 “Things largely continued on as they had been, with Mr Button needing a colleague to help him with the parts of his job that required lifting.”6
[11] In mid-November 2008 Mr Button sought to work overtime that was being offered by Boags. However, Boags has a policy that employees on light duties should not work overtime. Mr Jensen, a Packaging Team Leader at the Launceston Brewery, told Mr Button of this and suggested that if Mr Button were to see a specialist and undergo an operation for his hernia, he might be able to return to full duties and thus be eligible to work overtime. In December 2008 Mr Button told Mr Jensen that he would make an appointment with a specialist to discuss the possibility of an operation. 7
[12] Mr Philip John Hargans, Boags’ Operations Director, first became aware of Mr Button’s situation at the time that the overtime issue arose. Later in November 2008 he contacted Mr Nick Roy, the then Packaging Department Manager, to ascertain how Mr Button’s condition was progressing. 8
[13] Mr Button continued to perform his duties with the assistance of his team members.
[14] Again the evidence is not clear, but it appears that, prior to April 2009, Ms Williams, probably at the request of Mr Sean Turner, Boags’ Health & Safety Leader for Queensland and Tasmania, 9 sought another report from Mr Button’s treating specialist, Mr Steve Brough. Mr Button was unaware that it was being sought. On 6 April 2009, Mr Brough wrote to Ms Williams noting “that [Mr Button] will not be able to lift more than 5kg in his occupation and [Mr Brough] would regard this as an indefinite restriction.”10
[15] Following the receipt of Mr Brough’s report, Mr Turner arranged for an occupational therapist to assess Mr Button’s capabilities. 11
[16] On 24 June 2009, Ms Caroline Ballimore, an occupational therapist employed by Konekt Australia Pty Ltd, conducted a workplace assessment to “determine the physical requirements of Mr Button’s position [and to] determine if Mr Button can safely perform his duties based on medical information received by his treating Urologist.” 12
[17] Ms Dallimore apparently visited the work-site, viewed the area where Mr Button worked and spoke with some employees when she conducted her assessment. Her report, which is dared 1 July 2009, indicates that she had reviewed Mr Button’s pre-employment assessment, the 11 August 2008 letter from Dr Pan and the 6 April 2009 letter from Mr Brough. She was not provided with Ms Barr’s 24 October 2008 worksite assessment report. She did not speak with Mr Button, nor did she assess his physical abilities. It must be the case, and I so find, that Ms Dallimore assessed Mr Button’s abilities to perform the inherent requirements of his position on the basis of the normal, non-modified, duties of the position and the fact that he was not able to lift more than 5 kg. This is clear from her comment that “[t[he assessment was requested by Boags Brewery as they are concerned that Mr Button is at risk undertaking his normal duties due to the inherent physical requirements of his role.” 13 I take her reference to “his current duties” in her summary and recommendations to refer to the normal duties of a brewery technician or operator. Startlingly, there is nothing in Ms Dallimore’s report to indicate that she was even aware that Mr Button had been performing his job, with the help of his team members, for the best part of a year, whilst observing his restrictions, although Mr Turner said that she had been informed of Mr Button’s restrictions.14 Another odd feature of the report is that although it concluded that “Mr Button is unable to be redeployed at this time as his transferable skills do not match the requirements of other roles within the company”, neither its “Objectives of Assessment” nor anything else in the report indicates that Ms Dallimore had investigated any other roles at Boags.
[18] On the same day that Ms Dallimore conducted her assessment, Mr Button had a meeting with Mr Roy and Mr Sean Turner. Mr Button’s condition was discussed and Mr Turner, in his evidence-in-chief, said, in answer to a question from Mr Button as to what the likely outcome might be as a result of Mr Brough’s letter, that he told him they were waiting for Ms Dallimore’s review. Possible outcomes were that Mr Button’s role might be redefined, a new role might be found for him or there might not be a role for Mr Button at Boags.
[19] Attached to Mr Button’s application to Fair Work Australia was a “Statement of Grounds” in which he set out his version of events. Although this was not tendered, the parties appear to have treated it as part of his evidence. Parts of some of the witness statements filed on behalf of Boags take issue with portions of the Statement of Grounds.
[20] According to Mr Button’s Statement of Grounds, at the meeting of 24 June 2009, he was “told that management had some concerns about ‘their duty of care’. [He] was told that [he] was considered a high risk to the company and that ‘they are not prepared to accept the risk and any liability for [him].” He assumed that the reference to “they” was to Boags’ insurance company. 15 In his evidence-in-chief Mr Button said that at the meeting of 24 June 2009, he was told by Mr Turner that they had reassessed the situation and basically their insurance company had flagged Mr Button, the company had looked into the matter and he was considered to be a high risk and a liability to the company.16 He repeated this in different words later and added that he was told at that meeting that he was not to return to his role as a production worker.17 Mr Button was cross-examined on this topic and admitted that he was distraught and remembered only bits and pieces of the conversation. He added that he recalled a couple of key sentences because he went away and they were on his mind. He was adamant that Mr Turner had said that he was a high risk to the company and that they weren’t prepared to accept the risk and liability. He was positive that Boags’ insurance company was mentioned.18
[21] Mr Turner, in his witness statement, recalled telling Mr Button that Boags had a duty of care to him to ensure he was not put at risk in the workplace but he did not recall making the other comments attributed to him, nor did recall them having been made by Mr Roy, who did not give evidence. He said that he did not make any reference to Boags’ insurance company in the discussion. He was not orally examined or cross-examined on this issue.
[22] During Mr Turner’s cross-examination it emerged that he is based in Queensland and had visited Launceston on a monthly basis “since about November, December when Lion Nathan purchased Boags.” 19 Mr Turner was the person who commissioned the Konekt report and briefed Ms Dallimore.20 He instructed Konekt to perform an assessment of the brewery technician role in packaging from a manual handling perspective and a capability perspective, outlining the restrictions that were indicated by Mr Button’s doctor.21
[23] After the 24 June 2009 meeting Mr Button was not permitted to and did not return to production work. He was assigned office duties, but there was little for him to do and he was unhappy there. From that time on, until the termination of his employment, he took various forms of leave.
[24] On 7 July 2009, after receiving the Konekt report dated 1 July 2009, Mr Hargans convened a telephone conference to consider its findings, which had confirmed “that Mr Button was not able to perform his role safely and that he could not be redeployed within Boags.” 22 Mr Hargans made the decision to terminate Mr Button’s employment on the basis that he could not perform the inherent requirements of his role. Mr Hargans decided that he should be offered outplacement and retraining support.23
[25] It was intended that Mr Roy and Ms Sky Barone, an Operations Capabilities Leader with Boags, were to tell Mr Button of the decision. However, Mr Roy resigned and Mr Hargans went on paternity leave. A meeting with Mr Button was convened for 28 July 2009. Ms Barone, who had commenced employment with Boags on 13 July 2009, was asked by her leader, Mr John Perez, to contact an outplacement services provider to be available to meet Mr Button after the 28 July meeting. 24
[26] It had been Boags’ intention to terminate Mr Button’s employment at the 28 July meeting, 25 at which a Mr Peter Tullgren, a union official was present to support Mr Button. Boags was represented by Mr Jensen and Mr Perez. Mr Button, who had apparently collected the Konekt report on about 21 July 2009, was told that in light of its findings that he could not perform the inherent requirements of his job, his employment was to be terminated26 and that he would be offered counselling, retraining and outplacement services.27 At Mr Tullgren’s request the termination was not effected and Mr Jensen agreed to make enquiries as to whether another role could be found within Boags for Mr Button to perform whilst he was undergoing retraining.28 The meeting was adjourned.
[27] Another meeting was convened for 4 August 2009, at which time it was intended to provide Mr Button with a letter of termination. Mr Jensen and Mr Perez attended and it was explained to Mr Button that Boags was not prepared to retain him in employment whilst he was being retrained. A letter of termination dated 4 August 2009 had been prepared and was ready to give to Mr Button. It was seen by Mr Tullgren at the meeting 29 which was again adjourned so that Mr Button could make some enquiries of Centrelink,
[28] A final meeting took place on 11 August 2009 at which time Mr Button was given the letter of 4 August. The termination of Mr Button’s employment was said to be effective from 1 September 2009.
[29] On 7 August 2009 Mr Button was apprehended whilst driving his vehicle with a blood alcohol reading in excess of the prescribed limit.
THE ISSUES
[30] For the respondent it is put that, as Mr Button could not perform the inherent requirements of his position, it was justified in terminating his employment and that it did so after properly assessing his capabilities and also after ascertaining that there were no other positions for him within Boags. In the circumstances, it contends, the termination was for a valid reason and was not unfair. It adds that, in any event, although discovered post-employment, Mr Button had committed a sackable offence whilst driving over the prescribed blood alcohol limit. Conduct warranting termination of employment that occurred during the employment relationship may be relied upon to justify a termination that was effected for other reasons when that conduct became known to the employer after the employment ended. 30
[31] That the Konekt report concluded that Mr Button could not perform his current duties is not surprising. As I have indicated, Ms Dallimore was measuring Mr Button’s capabilities against the inherent requirements of the role of a brewery technician. There is no dispute that Mr Button was incapable of performing the role of a brewery operator, at least not without the assistance of his team members, and that this had been the case since at least August 2008, if not earlier. Ms Dallimoer’s report essentially added nothing to that that had been provided by Ms Barr on 24 August 2008 – with a lifting restriction of 5 kg, Mr Button could not perform the inherent requirements of his position.
[32] It is almost universally the case, that if an employee is unable to perform the inherent requirements of his or her job, it is not unfair to terminate the employment of that person for that reason. However, this case is probably unique because Mr Button had continued to work in a satisfactory manner with his restrictions.
[33] There is no doubt that without the assistance of his team mates Mr Button was not able to perform the inherent requirements of a brewery technician, which is the job for which he was employed. However, Mr Button had remained in his position, and with assistance, had satisfactorily managed to continue to perform his tasks, within the confines of his restrictions, from at least August 2008 until he was forbidden to continue to do so on 24 June 2009.
[34] For Mr Button it was put that, at the time that he was stood down, he was performing the inherent requirements of his job because it had been modified to accommodate his restrictions. For Boags it was contended that the inherent requirements remained those of an able bodied person and that the modifications were only of a temporary nature. Mr Jensen, Mr Turner and Mr Hargans all said that until they received the Konekt report they had thought that Mr Button was to undergo surgery to rectify his hernia, whereafter he would be able to return to unrestricted duties.
[35] For Boags it was also contended that Mr Button’s restrictions were creating discord amongst the other members of his team who resented having to perform those aspects of Mr Button’s tasks that he was unable to perform. 31 Further that his restrictions created operational problems because from time to time the unassigned member on the shift was unable to perform other tasks, or if he was not available Mr Button could not be used to relieve other team members as required.32 Another consideration was the intention to devolve more maintenance tasks on the brewery technicians instead of them being performed by maintenance personnel. This would result in brewery technicians being required to undertake more tasks that involved work that Mr Button is not able to perform.
[36] Essentially, Boags’ case is that, once it became aware that Mr Button’s restrictions were permanent, it could no longer retain his services. Whilst it was able to accommodate him on a temporary basis, to continue to do so permanently was untenable.
FINDINGS ON DISPUTED FACTS
PRIOR TO THE DALLIMORE REPORT DID BOAGS BELIEVE THAT MR BUTTON’S RESTRICTIONS WERE TEMPORARY AND DOES IT MATTER?
[37] In Late November 2008, when Mr Hargans was speaking with the then Packaging Department Manager, he said “I recall from that discussion that Mr Button was able to have surgery to correct his hernia and that he would then be able to return to his full duties. My understanding was that he was performing restricted duties pending an operation.” 33
[38] Mr Turner, prior to the receipt of Mr Brough’s report, had “understood, through my conversations with Ms Williams and Mr Button, that it was likely Mr Button’s condition was operable and could be resolved (Mr Button then being able to return to full duties). 34
[39] Mr Jensen formed the view in early January 2009, when he was discussing Mr Button’s restrictions with him, “that his hernia may be operated on and that this could allow him to return to normal duties.” 35
[40] The assertions by Mr Hargans, Mr Jensen and Mr Turner that, prior to receiving Mr Brough’s report they had thought that Mr Button’s restrictions were temporary until such time as he had his hernia rectified by an operation, seem to me to be a somewhat self-serving reconstruction of the events. Mr Button strongly denied saying to anybody that he intended to have any such operation. 36 Dr Pan’s letter of 11 August 2008 does not suggest that Mr Button was likely to have an operation to treat his hernia. On the contrary it suggests that he should avoid heavy lifting so that an operation would not be necessary. Ms Barr’s report of 24 October 2008 makes it fairly clear that Mr Button is unlikely to have a hernia operation until his urinary bag is due to be replaced in about 10 years, and that his lifting restrictions will continue until such time.
[41] At its highest, the evidence supports an inference that when Mr Button was told that he couldn’t work overtime whilst on restricted duties he told Mr Jensen, in early December 2008, that he would make an appointment with a specialist to discuss the possibility of an operation. 37
[42] In a witness statement of Paul Alan Hill that was filed, but not tendered because Mr Hill declined to give evidence, he referred to paragraph 7 of a statement by Robert John Armstrong 38 where Mr Armstrong referred to a meeting prior to August 2008 at which production employees were told about Mr Button’s restrictions. Mr Hill said of that meeting that Mr Jensen told the shift that “Allan’s condition was such that it could be 10 years before he could have his operation and hence he would have to be on light duties for potentially that amount of time.” Peter Arthur Holt made a statement39 as well as giving oral evidence. Mr Holt said that he had read Armstrong and Hill’s statements and agreed with their contents. Although I give it little weight in the circumstances, this evidence further tends against Boags’ position that it had not become aware of the relatively permanent nature of Mr Button’s restrictions until the receipt of Mr Brough’s report in April 2009.
[43] It is likely that the “beliefs” of Messrs. Hargans, Turner and Jensen as to the temporary nature of Mr Button’s restrictions have been coloured by the events that precipitated the commissioning of the Konekt report.
[44] In any event, even had they held those beliefs, that does not, it seems to me, advance Boags’ case. The facts are that Mr Button worked with his restrictions for at least eight months.
[45] It may be the case, that from the conversations Mr Jensen had with Mr Button about the working of overtime, he extrapolated that Mr Button was seeing his surgeon with a view to having his hernia surgically rectified. However, even at its highest, the evidence goes no further than that Mr Button was seeking an appointment with his specialist to ascertain whether his hernia was operable. Especially in light of the Pan and Brough letters, there was no warrant for Boags to conclude that his condition was temporary.
WERE MR BUTTON’S COLLEAGUES UPSET AT HAVING TO ASSIST HIM?
[46] Mr Jensen said that the situation had become unworkable because it was taking Mr Button’s colleagues way from their own tasks. 40 He had had complaints from two other brewery technicians, each of whom was at some time a union delegate, to the effect that other members of the team were angry and resented the fact that, in addition to their own duties, they were required to perform some of Mr Button’s.41 Mr Button was never told of this.42 Messrs Young and Hill who allegedly made the complaint to Mr Jensen were not called to give evidence.
[47] However, two of Mr Button’s former team mates were called to give evidence on this issue. Mr Robert John Armstrong said that prior to August 2008 they were made aware of Mr Button’s restrictions and asked whether they had any objections to giving him a hand. There were no objections and assisting him lifting boxes of labels was “never a drama”. 43 Mr Armstrong believed Mr Button to be a valuable member of the team and did not believe that production was in any way adversely affected by his restrictions.44 Mr Armstrong was not aware of any of his workmates being upset at having to help out Mr Button.45
[48] Mr Peter Arthur Holt adopted Mr Armstrong’s witness statement, as well as that of Paul Allan Hill, who was not called. 46 As was the case with Messrs. Armstrong and Hill he never felt “overloaded” by reason of helping Mr Button.47 Nor was he aware of complaints by others.48
[49] Given the direct evidence of Messrs. Armstrong and Holt as well as the evidence of Mr Button as to his perceptions, I am satisfied that Mr Button’s restrictions were adequately catered for with the willing assistance of his work colleagues and that they were not unduly discomfited by the rendering of it.
WAS THE TERMINATION OF MR BUTTON’S EMPLOYMENT UNFAIR?
[50] A curious aspect of this case is that there is nothing in the evidence that was led by Boags that explains why, after Mr Button had been satisfactorily performing his duties with the assistance of his colleagues, Boags, apparently without having informed Mr Button, sought the Brough opinion in early 2009. His situation had come to the attention of Mr Hargans in late November 2008, around the time that Boags was taken over by Lion Nathan, but that does not, of itself, explain the request for another doctors’ report. The sudden interest in Mr Button’s welfare, the seeking of the Brough opinion and the commissioning of the Konekt report, seems to me to lend cogency to Mr Button’s evidence that he was told, at the meeting with Mr Turner and Mr Roy on 24 June 2009, that the insurance company, whether it is that of Boags or Lion Nathan is not known, had identified Mr Button as a high risk and had indicated to Boags that it was no longer prepared to accept the risk and any liability for him.
[51] In my view, on the balance of probabilities, the conversation occurred along the lines outlined by Mr Button. Advice from the insurer led to a review of Mr Button’s position, culminating with the flawed Konekt report and leading to the termination of Mr Button’s employment.
[52] Section 381 of the Act sets out the objects of Part 3-2. In having regard to the latter two objects Fair Work Australia is obliged to accord a ‘fair go all round’ to the employer and the employee concerned. If a dismissal is found to be unfair there is an emphasis on reinstatement.
Relevantly to this case, s.385 provides that a person has been unfairly dismissed if the dismissal was harsh, unjust or unreasonable. By s.387, the first matter that must be taken into account in deciding whether a dismissal was harsh, unjust or unreasonable is 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). Although the legislation is new, it is largely to the effect of the law as it was prior to the enactment and coming into operation of the Act.
[53] Here the issue relates to Mr Button’s capacity as well as the effect, if any, of his admitted incapacity on the safety and welfare of his team members.
[54] As I have indicated, almost universally, if a person cannot perform the inherent requirements of his or her position there will be a valid reason for the termination of that person’s employment simply because he or she is unable to perform the role for which the employment contract provides. However, as I have said, this case is unusual.
[55] It was put on behalf of Mr Button that he was able to perform and did perform the inherent requirements of his job because Boags had altered those requirements when it arranged, through Mr Jensen, for assistance to be provided to Mr Button, as required. He, and his team, worked in that manner for over eight months. Given my finding that Boags knew that Mr Button’s condition was long term, there is validity in that submission. The inherent requirements of the position, as performed by Mr Button since at least October 2008, did not necessitate that he perform work beyond his restrictions. Accordingly, there could be no valid reason for the termination based on Mr Button’s capacity. I also find that Mr Button’s incapacity had no adverse impact on the safety or welfare of his team members
If I am wrong as to that, I would nevertheless find that there was no valid reason for the termination. If the inherent requirements of the position included the work that Mr Button was not able to perform, he had been satisfactorily performing his work with the willing assistance of his team members. Nothing had changed in that regard (other than the reluctance of Boags’ insurer to continue to cover Boags in respect of Mr Button) and yet his employment was terminated. In those circumstances, I would conclude that there was no valid reason for the termination of Mr Button’s employment.
[56] There being no valid reason for the termination leads me to conclude that Mr Button’s dismissal was harsh, unjust and unreasonable.
[57] Even had there been a valid reason for the dismissal, based on Mr Button’s inability to perform the inherent functions of his position, I would reach the same conclusion. To dismiss Mr Button after he had been satisfactorily working with his disabilities for the best part of a year, without there having been an intervening occurrence to otherwise warrant his dismissal, is harsh, unjust and unreasonable.
[58] It was also submitted by Boags the fact that Mr Button had driven whilst exceeding the prescribed blood alcohol limit warranted his dismissal, even though Boags was not aware of this incident at the time. In other circumstances I would have acceded to this submission. I am satisfied that Boags has a very strict alcohol policy, that it is appropriate and reasonable and that Mr Button was aware of it. However, again, the circumstances are unusual.
[59] At the time that Mr Button drove whilst exceeding the permitted blood alcohol limit his employment had all but been terminated. Boags had resolved to terminate his employment, and to effect the termination, on 28 July 2009. This was known to Mr Button. At the meeting of 4 August 2009, his representative, and no doubt Mr Button, became aware that a letter of termination had been prepared and that Boags intended to give it to Mr Button at that meeting. He was given a grace period of another week to get his affairs in order, and the termination of his employment was confirmed at the meeting of 11 August with effect from 1 September.
[60] In the circumstances of this case, where Mr Button’s employment had to all intents and purposes been terminated prior to the drink driving offence, I do not accept that Boags can rely on this, either on the question of whether there was a valid reason for the termination, or on the issue of reinstatement. I accept Boags’ submission that as a matter of law the employment relationship endured until 1 September 2009. However, against this must be weighed the fact that Mr Button had not worked from late June 2009 and that he had been told as early as 28 July that his employment was to be terminated.
[61] Despite the justifiable seriousness with which Boags treats drink driving offences, and again, I emphasize, that I consider its policies and approach to be proper, in the circumstances of this case, a finding that there existed a valid reason for the dismissal is not open. Nor, in the circumstances of this case should Mr Button’s transgression militate against his reinstatement. I do not accept that this decision should, or will, in any way diminish the importance of Boags alcohol policy, nor will it set a precedent, either for Boags or for any other employer.
[62] As well as considering the validity for Mr Button’s dismissal, I have had regard to the remainder of the matters in s.387. As I make no finings adverse to Boags in respect of them, I need not further comment on those matters.
[63] I consider that reinstatement is appropriate and will order that Mr Button be reinstated to his former position, requiring that he perform his duties in the manner that he had been with his restrictions. It is also appropriate that he be compensated for the remuneration that he lost between the time of the termination and the date of my order.
[64] I direct the parties to provide minutes of orders to reflect my decision. In the event that agreement proves to be impossible, I grant liberty to apply to either party.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D Durkin, for the applicant, Mr A Button.
Mr P Wheelahan, barrister, for the respondent, J Boag & Son Brewing Pty Ltd.
Hearing details:
2009
HOBART
15-16 DECEMBER
1 Ex. R5, statement of Stephen Leslie Jensen, para. 1 (late 2008); Ex.. R3 Statement of Greg Stones,27 November 2009 (“approximately 18 months ago”); Ex.R1 Statement of Philip John Haragans (“since 2007/early 2008 it has been owned by Lion Nathan”)
2 Ex. R4, Statement of Sean Christopher Turner, par. 5.
3 Ex. A1
4 Ex A2
5 PN32 - 33
6 Ex. R5, para. 21
7 Ibid paras. 22 - 23
8 Ex. R1, para. 11
9 Ex. R1, para. 12
10 Ex. A1
11 Ex. R1 para.14
12 Ex. A3
13 Ibid p.2
14 PN1175 –PN1187
15 Statement of Grounds, para. 8
16 PN352
17 PN393
18 PN689 - 691
19 PN1158
20 PN1160-1161
21 PN1164
22 Ex. R1, Hargans’ statement, para.22
23 Ibid para. 23
24 Ex. R7, Statement of Sky Abby-Lee Barone, para.4
25 PN1606
26 PN1511
27 Ex. R5, Jensen’s statement, para. 43 -44
28 Ibid para.46 - 47
29 PN1614
30 Mericon Homes Pty Ltd v Bradley [2009] AIRCFB 374 at[10]
31 Ex. R5, para.26 - 27
32 Ex. R5, para 25
33 Ex. R1, para. 11
34 Ex. R4, para. 7
35 Ex. R5, para. 29
36 PN295, PN345
37 Ex. R5, para. 22- 23
38 Ex. A4
39 Ex. A5
40 Ex. R5, para. 25 - 26
41 Ex. R5, para. 27
42 PN291 - 293, PN1488 -1489
43 Ex. A4, Statement of Armstrong, para. 7, 9
44 Ibid para.8, 10
45 Pn1277
46 Ex. A5, Statement of Holt, para. 2
47 Ibid para.10
48 PN1369
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