Mr Anthony William Latham v Illawarra Coal Holdings Pty Ltd
[2023] FWC 2483
•26 SEPTEMBER 2023
| [2023] FWC 2483 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony William Latham
v
Illawarra Coal Holdings Pty Ltd
(U2022/9263)
| COMMISSIONER P RYAN | SYDNEY, 26 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
Introduction
Mr Anthony Latham (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Illawarra Coal Holdings Pty Ltd (Respondent).
At the time of his dismissal, the Applicant was employed as a Deputy at the Appin Mine.
The Respondent dismissed the Applicant on 25 August 2022 because it formed the view that the Applicant could no longer perform the inherent requirements of his role as a Deputy at that time and into the foreseeable future, and there were no suitable alterative duties or redeployment opportunities.
The matter was heard before me on 13 and 14 June 2023.
I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2) of the FW Act. The Applicant was represented by Mr O Fagir. The Respondent was represented by Mr D Williams.
Witness statements and/or reports were tendered from the following persons who also gave evidence at the hearing:
· The Applicant (Witness statements: Exhibit A4 and Exhibit A5);
· Mr Anthony Meades, employed by the Respondent as a Deputy at the Appin Mine (Witness Statement: Exhibit A3);
· Doctor Ralph Mobbs, Neurosurgeon (Report dated 13 March 2023: Exhibit A2/March 2023 Mobbs Report);
· Mr Andrew Stuckey, employed by the Respondent as Superintendent of Mine Services at the Appin Mine (Witness Statement: Exhibit R1);
· Mr Tyler Stephen, employed by the Respondent as Mine Services Manager at the Appin Mine (Witness Statement: Exhibit R2); and
· Doctor Alan Home, Occupational Physician (Witness Statements: Exhibit R3 and Exhibit R4).
In addition to the witness statements, the following documents were admitted into evidence:
Exhibit No.
Description
A1
Letter from Collieries Staff and Officials Association to Doctor Ralph Mobbs dated 6 March 2023
A6
South32 Injury Management and Workers Compensation Procedure
A7
Position Description for the position of Deputy at the Appin Mine
A8
South32 Mine Surfaces Road Conditions TARP
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed. If I am satisfied that the Applicant was so protected, I must then consider whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Relevant Background
On 2 May 1988, the Applicant commenced employment with the Respondent as a Longwall Fitter and Machinist at the Kemira Colliery.[1]
Later that year, the Applicant suffered an injury to his right shoulder and back when moving some pipes. The Applicant subsequently underwent a right shoulder AC joint excision arthroplasty. In 1990, the Applicant underwent a labral repair/reconstruction.[2]
On 2 May 1991, the Applicant was transferred to the Appin Mine and appointed to the role of Night Shift Fitter and Machinist, before transferring to the role of afternoon shift Coal Clearance Supervisor in 1994.[3]
In 2001, the Applicant was appointed to the role of weekday night shift Mechanical Shift Supervisor. In 2005, the Applicant was transferred to the same role at Appin West.[4]
In July 2007, the Applicant was appointed as Deputy at Appin Mine on weekend night shift.[5]
In 2008, the Applicant was appointed as Shotfirer and performed dyke extraction at Appin West until the Appin Mine ceased dyke extraction in 2016. The Applicant was then appointed as Appin West Weekend Night Shift General Underground Deputy.[6]
In 2017, the Applicant was appointed to the role of Appin East Weekend Night Shift General Underground Deputy. The Applicant remained in this role until his dismissal.[7]
The position description for a Deputy describes the purpose as follows:
The key purpose of this role is to perform and the contribute to Coal Production through performing statutory and compliance duties. The role of Deputy is to supervise workers and inspect work areas in a part of the mine as well as monitor statutory compliance with current mining legislation and the site Safety Management System. The role should perform a range of tasks in order to achieve established KPI targets for safety/care, cost and volume and to statutory compliance.[8]
The Applicant described the core function of a Deputy as being responsible for maintaining statutory compliance by undertaking various inspections and supervising and directing workers.[9] Under cross examination, Mr Tyler agreed that the priority of a Deputy’s role is the safety of the mine, including the completion of statutory inspections.[10]
The Respondent engages different types of Deputies relevant to the area of the mine to which they are allocated. These include General Underground (or Mine Services Underground), Production (or Longwall), Development and Outbye deputies.[11]
While a Deputy may be required to work in any area of the mine, generally a Deputy is assigned the same work area. In this case, the Applicant was generally assigned to work in the outbye areas, while Mr Meades was generally assigned to work in the production areas.[12]
In April 2019, the Applicant underwent heart surgery. After being certified fit to return to work, the Respondent directed the Applicant to undergo a functional assessment through a third-party provider, InMotion Rehab.[13]
On 6 September 2019, the Applicant underwent the functional assessment onsite at the Appin East First Aid Room. During the functional assessment, the Applicant was directed to lift a 37-kilogram weight above shoulder height. Upon lifting the weight, the Applicant felt a sharp pain in his right shoulder and ultimately underwent a reverse total shoulder replacement on 21 February 2020.[14]
In or around July/August 2020, the Applicant returned to work, before being directed not to attend work pending further assessment of his capacity.[15]
On 12 April 2021, the Applicant returned to work on the condition that he be examined by Dr Home. On 13 April 2021, the Applicant attended a functional assessment at Dr Home’s rooms in Sydney. Following the functional assessment, Dr Home provided a medical report to the Respondent (April 2021 Home Report).[16]
In the April 2021 Report, Dr Home recommended the following permanent medical restrictions:
· Lifting of no more than 25 kilograms between mid-chest and ground level on an occasional basis.
· Lifting no more than 10 kilograms away from the body or above shoulder height on a permanent basis.
· He should not engage in work that involves repetitive overhead tasks or lifting in excess of these parameters.[17]
On or around 28 April 2021, the Applicant returned to work as a Deputy performing his normal duties subject to the medical restrictions which were set out in a return-to-work plan.[18]
In or around September 2021, the Applicant started to lose feeling in his hips. The Applicant’s general practitioner, Dr Annette Beaufils, referred him to Adjunct Professor Justin Paolini, a Sports Physician. A/Prof Paolini referred the Applicant to Dr Mobbs.[19]
On 12 November 2021, the Applicant underwent an L3/L4 spinal decompression procedure, which is also referred to as a minimally invasive laminectomy.[20]
On 6 January 2022, Dr Beaufils certified the Applicant unfit to continue his usual occupation from 6 January 2022 until 1 February 2022.[21]
On 13 and 28 January 2022, the Applicant attended post-surgery reviews with A/Prof Paolini.[22]
On 31 January 2022, A/Prof Paolini sent a report to Dr Beaufils (January 2022 Paolini Report). The January 2022 Paolini Report included the following information regarding the CT and MRI scans:[23]
CT lumbar spine showed severe spinal canal stenosis L2-S1 with multilevel central disc bulges most significantly at L3/4, L4/5, and L5/S1 coupled with severe facet arthropathy L4/5 and L5/S1. Bone scan showed left L2/3 discovertebral uptake and right T10/11uptake. MRI lumbar spine showed multiple disc bulges most significantly at L3/4 with significant spinal canal stenosis.
A/Prof Paolini was not called to give evidence in the proceedings, and it is not clear whether the report or findings of the pre-operative imaging set out in the January 2022 Paolini Report were his own findings, or whether he adopted the findings of the radiologist.
A/Prof Paolini concluded that the Applicant ‘should remain off work and not go down the mines until I review him in 2 months (5-months post-surgically) but this intervening period will be used for intensive strengthening.’[24]
On 3 February 2022, and after considering the January 2022 Paolini Report, the Respondent determined to send the Applicant to Dr Home for an independent medical examination (IME).[25]
On 9 February 2022, Mr Stephen sent correspondence to Dr Home requesting a medical report in relation to the Applicant’s capacity, treatment plan and recommendations to support his safe return to work as an Underground/Mine Services Deputy at the Appin Mine. The correspondence refers to the spinal decompression procedure and provided the following information regarding the inherent requirements of the role of a Mine Services Deputy at the Appin Mine and the ‘inherent aspects’ of the workplace:[26]
Inherent Requirements of the Role - Deputy
The duties that Mr. Latham is required to perform in his position as Mine Services Deputy are:
·Inspecting conveyer belts, electrical statutory checks, calibrating ‘ITX’- gas detectors, supply/ reclaiming hoses, hosing, housekeeping and general tidy, inspections and supervision underground, transporting personnel, inspecting pumps, return airways inspections, generic administrative activities, responding to emergencies, coordinating/ participating in investigations and mobile equipment servicing.
·Be able to perform any tasks required in other departments as required.
·Be able to perform the inherent physical requirements of the role and to fill in for absent/injured crew members as required.
·Achieving ongoing shift targets.
·Capacity to self-escape in an emergency by using a CABA weighing approximately 16kg in backpack form.
·Travel to and from his home in Helensburgh each shift– a one-way trip of approximately 35 minutes via personal transport
·The work roster is permanent weekend day shift, 8pm – 8am, Friday to Sunday.
Inherent Aspects of our Workplace - Underground
Mr. Latham’s role additionally requires that the Employee:
a. perform the duties of the Role described above;
b. work underground in a wet, dark and confined environment for 12-hours shifts with up to one-hour travel time to the surface;
c. maintain constant, elevated cardio-vascular activities during the course of the 12-hour shift;
d. maintain constant alertness;
e. multi-task and communicate while performing tasks or operating equipment;
f. work to deadline and under time pressure;
g. take directions from business leaders;
h. participate in performance reviews and receive constructive feedback from business leaders including his direct supervisor regarding his performance;
i. comply with complex workplace health and safety requirements, which requires that attend work fit for duty including that the Employee not be adversely impacted by medication or fatigue at the commencement of every shift.
On 11 February 2022, the Applicant attended the IME with Dr Home (February IME). Dr Home prepared his report later that day (February 2022 Home Report).[27] In preparing the February 2022 Home Report, Dr Home had regard to:
· The information set out in the correspondence from Mr Stephen dated 9 February 2022;
· A document titled Job Task Analysis for the role of ‘Mine Services/Development/Longwall/Outbye Deputy’, which identifies 30 role requirements for a Deputy and describes the overall musculoskeletal disease risk rating as moderate (JTA);
· A similar JTA document provided by the Applicant;
· The January 2022 Paolini Report;
· Information provided by the Applicant during the February IME; and
· His physical examination of the Applicant.[28]
Dr Home stated that based on the materials provided to him and his discussion with the Applicant during the February IME, he determined that there were three critical and unavoidable requirements of the Applicant’s role:
a. The requirement on every shift to travel in vehicles to enter the mine site, and travel to different locations underground, for up to 40 minutes per journey. This involves sitting in a ‘drift runner’ vehicle travelling over uneven ground, exposing the body to whole body low frequency vibration;
b. The requirement on every shift to perform work which requires repetitive forward bending at the waist, or repetitive twisting of the spine e.g. walking over uneven ground, conducting visual inspections of different areas, and on occasion using a shovel or moving a hose; and
c. Lifting heavy weight (more than 15 kg between shoulder and knee height and more than 10 kg from below knee height), especially in an emergency situation, and during an emergency evacuation procedure.[29]
Taking those matters into consideration, Dr Home concluded in the February 2022 Home Report that the Applicant was permanently incapacitated for work within his pre-injury role and recommended the following permanent medical restrictions:
In relation to his right shoulder complaint, he should lift no more than ten kilograms away from his body or above shoulder height on a permanent basis. He should not engage in work that involves repetitive overhead tasks of lifting in excess of those parameters.
In relation to his spinal condition, he is restricted from:
•lifting more than 15 kilograms between shoulder and knee height and more than 10 kilograms from below knee height.
•work that required repetitive forward bending at the waist, or repetitive twisting of the spine.
• exposure to whole body low frequency vibration or jarring of the spine.[30]
On 1 March 2022, the Respondent met with the Applicant to discuss the February 2022 Home Report. Mr Stuckey stated that the Respondent was concerned that both Dr Home and A/Prof Paolini had certified the Applicant as ‘currently (and possibly permanently)’ unfit to return to work. Mr Stuckey encouraged the Applicant to discuss the February 2022 Home Report with his treating doctor. The Respondent provided the Applicant with an opportunity to provide a response to the February 2022 Home Report, including the provision of further medical evidence. [31]
On 28 March 2022, the Applicant was reviewed by A/Prof Paolini. Following that review, A/Prof Paolini prepared a report addressed to Dr Beaufils (28 March Paolini Report).[32]
In the 28 March Paolini Report, A/Prof Paolini stated, inter alia: [33]
· Today’s review shows ongoing improvement;
· The Applicant has no distal pain referral, paraesthesia, or functional weakness;
· Lumbar spine flexion is 90 degrees and there is pain free ROM, slump tests are negative and lower limb neurological examination is normal. Hip ROM is normal and pain free with negative quadrant tests.
The 28 March Paolini Report also included the same information regarding the pre-operative CT and MRI scans as the January 2022 Paolini Report.
A/Prof Paolini concluded that the Applicant was ‘medically cleared for pre-injury unrestricted duties at work as a mine supervisor. I review [sic] him in 6 weeks’ and issued a medical certificate certifying the Applicant as ‘fit for unrestricted work at a pre-injury level from today.’[34]
On 29 March 2022, the Applicant received a telephone call from David Porley, a return-to-work coordinator employed by InMotion Rehab. Mr Porley advised the Applicant that the Respondent was sending the JTA to A/Prof Paolini to confirm whether he maintained his views as to the Applicant’s fitness for work having regard to the JTA.[35]
On 30 March 2022, the Applicant attended a telehealth appointment with A/Prof Paolini. Following the telehealth appointment, A/Prof Paolini provided a report to Mr Porley (30 March Paolini Report).[36]
In the 30 March Paolini Report, A/Prof Paolini stated that the Applicant has:
“…excellent functional capacity at home included being able to cut and manipulate large trees and logs up to 60kgs after recent storm damage on his property (which would encompass an ability to perform all requirements of the provided jobs tasks analysis). He has minimal pain with activities of daily living. He has no distal pain referral, paraesthesia, or functional weakness. He Injury Management remains off work currently.”[37]
A/Prof Paolini concluded that, from a lumbar spine perspective, it was his ‘opinion that the Applicant is medically cleared for pre-injury unrestricted duties at the as underground mine services deputy.’ A/Prof Paolini further stated, ‘I have never examined his shoulder injury so am unable to comment on his fitness for work capacity but would state that he has recently reported demonstrated excellent functional capacity after recent storm damage on his property.’[38]
The Respondent was concerned that the 28 March Paolini Report and the 30 March Paolini Report contradicted the February 2022 Home Report. The Respondent decided to request Dr Home to review the 28 March Paolini Report and the 30 March Paolini Report and provide his opinion as to whether the Applicant was fit to return to preinjury duties.[39]
On 7 April 2022, Mr Stephen sent a letter of request to Dr Home, along with a copy of the 30 March Paolini Report. In the letter of request, Dr Home was requested to provide an opinion as to whether A/Prof Paolini’s conclusion was ‘clinically reasonable’ and whether any adjustments or additions should be made to the restrictions set out in the February 2022 Home Report.[40]
On 8 April 2022, Dr Home provided a supplementary report (April 2022 Home Report).[41]
In the April 2022 Home Report, Dr Home stated:
· That the 30 March Paolini Report does not present additional medical information;
· That Dr Home does not agree with A/Prof Paolini’s opinion that the Applicant’s is fit for pre-injury duties;
· That medical restrictions in the February 2022 Home Report are placed to prevent the substantive risk that heavier manual work will aggravate his known pathologies and that the main issues relate to the Applicant lifting heavy weight, particularly in an emergency situation, and the future exposures to whole body low frequency vibration in the work environment.
· That while the history of recent activity documented by A/Prof Paolini is noted, it is irrelevant as to whether on one particular day, or even in a controlled functional testing setting, the Applicant is able to perform work outside of the recommended restrictions. Dr Home stated that while this information is relevant, it is not sufficient medical information upon which to consider future risk.
· That he remained of the view that the Applicant was permanently incapacitated and did not recommend any adjustments or additions to the medical restrictions set out in the February 2022 Home Report.[42]
On 14 April 2022, the Respondent provided the Applicant with a copy of the April 2022 Home Report.[43]
On 20 April 2022, Mr Stuckey met with Mr Stephen and Mr Porley to discuss the April 2022 Home Report. Arising out of that meeting, Mr Stuckey preferred the ‘evidence’ of Dr Home over A/Prof Paolini and reached the preliminary view that the Applicant was unable to meet the inherent requirements of the position of Deputy taking into consideration the issues identified by Dr Home of exposure of whole body low frequency vibration, lifting heavy weight (particularly in an emergency situation), and work that required repetitive forward bending and twisting of the spine. Furthermore, Mr Stuckey formed the view that there were no reasonable adjustments that could be made.[44]
On 16 May 2022, the Applicant attended a further review with A/Prof Paolini, following which A/Prof Paolini prepared a further report (May 2022 Paolini Report). In the May 2022 Paolini Report, A/Prof Paolini stated, inter alia:[45]
I note the report from Dr Home, occupational physician, and the restrictions outlined in this report for Mr Latham and any proposed return to work as a mine supervisor. Mr Latham is currently asymptomatic from his lumbar spine and is performing all activities of daily living unrestricted.
…
With the notd [sic] MRI lumbar spine changes, these were likely pre-existing to the L3/4 surgical decompression in mid-November, 2021. In my opinion, some suggested work restrictions are treating the MRI scan report and not the patient, his symptoms, and functional capacity. The concern about low frequency vibration with transport to enter the underground mine is noted but would be the same concern for any worker with lumbar spine pathology, which could include a high proportion of workers if this is the determining factor. If this transport issue with low frequency vibration is a genuine and serious concern then workplace safety review may be required as this would affect many workers.
It is critical that Mr Latham is functionally able to perform his duties safely and effectively and, with this firmly in mind, my opinion has not changed and he remains medically cleared for pre-injury unrestricted duties at work as a mine supervisor.
On 17 May 2022, the Applicant sent correspondence to the Respondent in which the Applicant disputes a number of matters set out in Dr Home’s reports and requests a further IME with Dr Home. The Applicant also provided a copy of the May 2022 Paolini Report. It is apparent from that correspondence that the primary concern raised by the Applicant was that Dr Home conducted the February IME at a time when he remained unfit for work.[46]
On 31 May 2022, the Respondent sent the following correspondence to the Applicant:[47]
I refer to the letter that you sent to the Company on 17 May 2022 regarding the independent medical examinations conducted by Dr Alan Home, Occupational Physician.
The concerns that you have raised have been carefully considered by the Company. Whilst the Company considers the medical examinations conducted by Dr Home to be sufficient and that there are no outstanding matters that require further assessment. However, despite this the Company has agree to arrange for Dr Home to reassess your capacity and restrictions, and to report on this to the Company.
…
The Company considers that the further report of Dr Home will adequately resolve the concerns that you have raised in your letter, and this report will be considered by the Company in assessing your fitness for work and the next steps in relation to your employment.
On 14 June 2022, Mr Stuckey sent a letter of request to Dr Home. In the letter of request, Mr Stuckey set out the inherent requirements of the role of a Deputy and the inherent aspects of the workplace and attached a copy of the JTA and the 16 May Paolini Report. Mr Stuckey requested a response to the following questions:[48]
1. Is Mr Latham able to safely perform the inherent requirements of the Role, as outlined in this letter and the enclosed functional job demands, having regard to any medical conditions that he may have?
2. If Mr Latham is currently unfit to perform all of the inherent requirement of his role:
a.When will Mr Latham be expected to have the capacity to undertake his full duties as a Mine Services Deputy?
b.Are there any restrictions, special facilities, treatment or services required for Mr Latham to safely perform his duties?
c.For how long would such measures apply before Mr Latham will be fit to perform all of the inherent requirement of his role without any restrictions, special facilities, treatment or services?
3. Having regard to Mr Latham’s current medical condition, are there any health and safety risks posed to Mr Latham or others in relation to him performing the Role in our workplace?
On 28 June 2022, the Applicant attended a further IME with Dr Home (June IME). Dr Home prepared his report later that day (June 2022 Home Report).[49] In preparing the June 2022 Home Report, Dr Home had regard to:
· Reviewing relevant documents;
· Information provided by the Applicant during the June IME; and
· His physical examination of the Applicant.[50]
In the June 2022 Home Report, under a heading “assessment”, Dr Home stated the following in relation to the Applicant’s spine:[51]
It is known that Mr Latham underwent an L3/4 decompression surgery to manage critical L3/4 spinal stenosis that was, prior to the surgery, causing symptoms of restricted spinal extension, stooped gait and restricted walking tolerances but had not progressed to neurogenic claudication, bowel or bladder dysfunction.
Again, MRI scans of the lumbar spine have been reviewed. These demonstrate multi- level degenerative changes from L1/2 to L5/S1 in addition to the L3/4 changes, the subject of surgery.
Since last review, Mr Latham has undertaken considerable physical rehabilitation in efforts to strengthen his core and improve his flexibility. Based upon the examination findings, there has been some improvement in flexibility since last review, reflecting improved hamstring length.
I have previously determined that Mr Latham is safe to work within the following medical constraints:
·Lifting more than 15 kilograms between shoulder and knee height
·Lifting more than 10 kilograms from below knee height
·Work that requires repetitive forward bending at the waist or repetitive twisting of the spine
·Exposure to whole body low frequency vibration or jarring of the spine.
The reason for these permanent restrictions is his known spinal pathology and his previous requirement for decompression surgery. There is an increased risk of reinjury and an increased risk of further surgery arising from reinjury after such surgery.
Whilst I note that Mr Latham has undertaken considerable exercise to improve his fitness and his core strength, this does not substantively reduce his risks of injury going forward.
I am familiar with the risks of work and the work environment in an underground coal mine. I have no reason to vary the recommendations made at last review on 11 February 2022 and confirmed in my report of 8 April 2022.
Again, these sensible medical restrictions are required to prevent substantive risks that a return to heavy manual work would present, given his known pathologies.
After receiving the June 2022 Home Report, Mr Stuckey met with Mr Stephen and Mr Porley to discuss the report. Mr Stuckey stated that Dr Home’s consistent opinion expressed in his reports led him to confirm the preliminary view he had reached in April 2022.[52]
On 9 August 2022, Mr Stuckey sent correspondence to the Applicant advising him of the outcome of the IME conducted by Dr Home on 28 June 2022. The correspondence:
a. explained to the Applicant that, on the basis of the June 2022 Home Report, the Respondent had formed the view that he could not safely perform the inherent requirements of his role, and that there were no suitable alternative roles available to him;
b. attached a list of roles currently advertised for recruitment for the Applicant’s consideration; and
c. invited the Applicant to show cause as to why his employment should not be terminated by providing a written response by 16 August 2022.[53]
On 15 August 2022, the Applicant provided a response to the invitation to show cause and a medical certificate from A/Prof Paolini dated 11 August 2022, which certified the Applicant fit for unrestricted work. In his response, the Applicant stated:[54]
a. That he had provided a fit for unrestricted work certificate from A/Prof Paoloni;
b. That he was able to conduct an emergency evacuation at the Appin Mine due to his fitness and knowledge of the Mine layout;
c. That he disagreed with Dr Home's medical opinion and he has been able to perform his role for the last 34 years;
d. That his physical fitness has improved; and
e. That he did not have any permanent disabilities or restrictions for lifting, walking or driving.
Mr Stuckey stated that after considering the matters raised by the Applicant, they did not cause him to change his view that the termination of the Applicant’s employment the appropriate outcome because:
a. The Applicant’s medical condition meant that he was unable to perform the inherent requirements of role of a Deputy at the Appin Mine; and
b. There were no reasonable adjustments that could be made to accommodate the medical restrictions recommended by Dr Home.[55]
On 25 August 2022, Mr Stuckey sent correspondence to the Applicant confirming his decision to terminate the Applicant’s employment. The letter of termination stated, inter alia:
Considering the outcome of your medical assessment, the lack of redeployment opportunities and suitable alternative duties, and the time since you were last able to safely perform the inherent requirements of your role, the Company has now decided to terminate your employment with immediate effect from today 25 August 2022. The Company has formed this view based on your inability to perform the inherent requirements of your role now and into the foreseeable future.[56]
The Inherent Requirements of the role of a Deputy
The parties were in dispute as to the inherent requirements, particularly the physical requirements, of the role of a Deputy at the Appin Mine.
It was the position of the Respondent that the inherent requirements of the role of a Deputy were set out in the JTA, which was provided by the Respondent to Dr Home and A/Prof Paolini in seeking their opinions regarding the Applicant’s capacity, and that if an employee cannot complete all of the requirements set out in the JTA, they may be dismissed.[57]
It is clear that the JTA provided by the Respondent to Dr Home[58] contains both essential and peripheral requirements of the role of a Deputy.[59] For example, the JTA lists a requirement of the role of a Deputy to lift and carry a 16-kilogram archive box once per month.
The Applicant and Mr Meades both disputed that the JTA reflected the inherent requirements of the role, stating that it included items that they have never had to complete before, or included tasks that were ordinarily assigned to Operators rather than Deputies.[60]
While Mr Stephen agreed with Mr Meades that most moving and heavy lifting can be completed by an Operator rather than a Deputy, he stated that there would be occasions where a Deputy would be working alone and would be required to lift heavy objects or undertake tasks without the assistance of others or without the ability to delegate the task to an Operator. The effect of Mr Stephen’s evidence was that a Deputy could be expected to, and/or may be required to, complete all of the tasks set out in the JTA.[61]
In its letter of instruction to Dr Mobbs, dated 6 March 2023, the Collieries Staff and Officials Association stated:[62]
Assumptions
In answer the questions posted, please assume that Mr Latham’s work as a deputy required him to:
1. regularly travel in a “drift runner” style vehicle with limited or no suspension over rough/uneven ground and unsealed roads;
2. regularly walk over uneven ground;
3. from time to time, bend and crouch (primarily in order to inspect equipment including by inspecting the area under conveyor belts);
4. perform repetitive forward bending at the waist and/or repetitive twisting of the spine (in order to observe conditions such as the roof and the side of the roadway);
5. from time to time, use a shovel to move coal dust;
6. from time to time, lift, push, pull and use heavy hoses and pumps;
7. from time to time, lift more than 15 kg between shoulder and knee height and more than 10 kg from below knee height;
8. in an emergency situation, put up and carry a CABA that weighs approximately 16 kg in backpack form and walking up to 15 km out of the mine; and
9. in an emergency situation, lifting up to 25 kg as part of four person lift of stretcher.
It was submitted for the Applicant that the assumptions are a worst case scenario.
However, under cross examination, both the Applicant and Mr Meades agreed that each of the assumptions were required as part of the role of a Deputy.[63]
The Respondent subsequently adopted the position that the inherent requirements are the assumptions set out in letter to Dr Mobbs which were accepted by both the Applicant and Mr Meades as real requirements of the role of a Deputy.
Having regard to the evidence and submissions of the parties, I find that the inherent requirements of the role of a Deputy, in terms of physical capacity, are as set out in the correspondence to Dr Mobbs dated 6 March 2023.[64]
The Medical Evidence
Evidence of Dr Home
Dr Home is a clinical Occupational Physician and has worked as an independent medical examiner for over 30 years.[65]
Dr Home specialises in permanent impairment assessments, injury management/rehabilitation, spinal, upper and lower limb injuries, IMEs, and has extensive experience in working with the mining sector.[66]
As set out above, the Respondent sought Dr Home’s opinion in relation to the Applicant’s capacity prior to making a decision to dismiss the Applicant.
In the February 2022 Home Report, Dr Home stated under the heading ‘diagnosis’:[67]
In relation to his spinal condition, he underwent L3/4 decompression surgery to manage critical L3/4 spinal stenosis which was, at that time, causing symptoms of restricted spinal extension, stooped gait and restricted walking tolerance. Fortunately, it did not progress to other features of cauda equina syndrome, such as neurogenic claudication, bowel and bladder dysfunction.
There has been an improvement in his range of active spinal motion and his walking tolerance since the surgery.
MRI scan imaging performed prior to surgery demonstrated multi-level degenerative changes from L1/2 to L5/S1, disc bulging at all levels with critical spinal stenosis confined to the L3/4 segment.
(Emphasis added)
Dr Home concluded that certain tasks were outside of the Applicant’s medical capacity. These included:[68]
· lifting up to 26 kilograms when attaching supply hoses;
· pushing and pulling a hose weighing 26 kilograms up to 100 metres;
· rolling up hose on hook weight to shoulder height 26 kilograms dead weight;
· carrying and regularly performing lifting up to 15 kilograms across uneven ground;
· pushing and pulling pumps up to 20 kilograms; and
· In responding to an emergency, the potential to lift up to 25 kilograms as part of a four-person lift of a stretcher.
Dr Home further stated that ‘the duties listed above are unsuitable, taking into account his spinal condition, due to the risk of material aggravation of the identified multilevel spinal degenerative changes and additional vulnerability due to disc surgery.’[69] (Emphasis added)
In the April 2022 Home Report, Dr Home stated:[70]
Again, the preoperative imaging demonstrates:
· multilevel central disc bulges, most significant at L3/4, L4/5 and L5/S1 coupled with severe facet arthropathy at L4/5 and L5/S1. These were significantly at L3/4 with significant spinal canal stenosis, necessitating decompression surgery
· bone scan uptake on the left at L2/3 the right at T10/11.
Mr Latham states that his back pain commenced in mid 2021. He underwent L3/4 spinal decompression surgery on 12 November 2021.
Whilst the surgery addresses spinal stenosis it does not address the multilevel degenerative changes, which remained symptomatic four months post-surgery.
(Emphasis added)
In the June 2022 Home Report, Dr Home stated under the heading ‘examination’:[71]
Lumbar spine
Examination of the lumbar spine reveals a healed slightly curved 4 cm scar overlying the L3/4 segment posteriorly, without adverse features.
There is no evident thoracolumbar muscle spasm. Active forward spinal flexion is now performed to reach fingertips to the toes, extension to three-quarters normal range, right and left lateral flexion performed to reach five centimeters below the knee crease on each side.
Lower extremities
The knee front reflexes are symmetrical. There is symmetrical thigh circumference. The calf circumference is 1.5 centimeters smaller than the right. There is no evident weakness of L4, L5 or S1 myotome power. The examinee is able to walk on toes and heels, crouch and arise from a crouching position without evident asymmetry.
There is mild impairment of balance standing independently on each foot, but normal capacity for tandem walking.
Under the heading ‘assessment’ in the June 2022 Home Report, Dr Home stated:[72]
It is known that Mr Latham underwent an L3/4 decompression surgery to manage critical L3/4 spinal stenosis that was, prior to the surgery, causing symptoms of restricted spinal extension, stooped gait and restricted walking tolerances but had not progressed to neurogenic claudication, bowel or bladder dysfunction.
Again, MRI scans of the lumbar spine have been reviewed. These demonstrate multi- level degenerative changes from L1/2 to L5/S1 in addition to the L3/4 changes, the subject of surgery.
Since last review, Mr Latham has undertaken considerable physical rehabilitation in efforts to strengthen his core and improve his flexibility. Based upon the examination findings, there has been some improvement in flexibility since last review, reflecting improved hamstring length.
(Emphasis added)
After referring to previously determined medical restrictions, Dr Home then stated. ‘the reason for these permanent restrictions is his known spinal pathology and his previous requirement for decompression surgery. There is an increased risk of reinjury and an increased risk of further surgery arising from reinjury after such surgery.’[73] (Emphasis added)
In response to the March 2023 Mobbs Report, Dr Home prepared a further supplementary report dated 3 April 2023 (April 2023 Home Report).[74]
In the April 2023 Home Report, Dr Home states:[75]
Again, the preoperative imaging is reported to demonstrate:
·multilevel central disc bulges, most significant at L3/4, L4/5 and L5/S1 coupled with severe facet arthropathy at L4/5 and L5/S1. These were significantly at L3/4 with significant spinal canal stenosis, necessitating decompression surgery
and
·bone scan uptake on the left at L2/3 the right at T10/11.
With respect to Dr Mobbs, the degenerative changes in the worker’s spine are not minor.
Further there is a history, in this case of chronic back pain, in addition to leg pain, of at least several months duration prior to and after surgery.
(Emphasis added)
In relation Dr Mobbs’ views on whole body vibration, Dr Home stated:[76]
The relationship between exposure to whole body vibration and both back pain and spinal injury are well established. I am happy to provide peer-reviewed references.
…
A causal relationship between WBV and back pain and spinal injury is well accepted by ergonomists, many of Dr Mobbs’ surgical colleagues, and the courts.
It is also well accepted that age, a history of back pain and underlying degenerative change increase the risks of such exposures.
There are related engineering controls, that apply to vehicles and workplaces, including at mine sites, to reduce these exposures. This includes, where possible, regular grading of road surfaces, safe seating and dampening machinery.
Dr Home then concluded:[77]
Whilst it is open to Dr Mobbs to opine that Mr Latham is not at any risk, he does not carry the responsibilities of his employer, who has sought advice and been advised of these risks by a relevant specialist.
I also note that Dr Mobbs does not address the issue of the risks posed to Mr Latham and by extension his coworkers, associated with heavy manual handling, including in an emergency evacuation setting.
It is apparent that Dr Mobbs does not have expertise in workplace assessment, ergonomics or risk management.
Review of Dr Mobbs’ report does not change the opinions regarding work capacity expressed in my previous reports.
Dr Home confirmed that he did not view the pre-operative CT scans.[78]
In relation to the pre-operative MRI scans, Dr Home was not able to say with certainty whether he had viewed the MRI images or whether he had viewed a photograph of the MRI scans (that the Applicant had taken of A/Prof Paolini’s computer screen) on the Applicant’s mobile telephone. However, Dr Home stated that it was his usual practice to view imaging and the wording in the February 2022 Home Report suggests he reviewed the MRI imaging rather than relied on a report of the MRI imaging.[79]
Dr Home stated the reported findings of the pre-operative imaging were an important part (or component) in his diagnosis and the opinions he expressed in relation to the Applicant.[80]
While both Dr Home and Dr Mobbs are experienced in reviewing spinal imaging, under cross examination, Dr Home accepted that he did not have the same level of experience as Dr Mobbs in reviewing spinal imaging.[81]
Although Dr Home stated that the Applicant having multiple levels of underlying spinal degeneration and that the spinal decompression procedure had taken him to a ‘new level or risk’ because the nature of the surgery destabilises the spine, he ultimately accepted that the spinal decompression procedure performed by Dr Mobbs had minimal impact on the Applicant in terms of the spinal stability.[82]
Dr Home stated that the Applicant was at serious risk of reinjuring himself with potentially catastrophic results. Dr Home stated that if this was to occur it is likely that the Applicant would require a three-level fusion surgery with possible devasting consequences, but ultimately ‘deferred’ to Dr Mobbs in relation to the sequence and nature of any future surgical treatment.[83]
In the April 2023 Home Report, Dr Home referred to two decisions which dealt with the issue of whole body vibration in the context of persons who were principally employed as a driver or a truck or bogger.[84]
In Robertson v Gillman Bros Mining Contractors, the decision records Dr Home’s evidence that the issue of whether exposure to low frequency vibration contributes to degenerative change was inconclusive, although there appeared to be a correlation between driving heavy vehicles and the development of back pain.[85]
In the proceedings before me, Dr Home stated that while there was a weak association between whole body vibration and degenerative change, there was a stronger association between whole body vibration and spinal injury and pain.[86]
Evidence of Dr Mobbs
Dr Mobbs is a Neurosurgeon by training and has been practising neurosurgery for approximately 20 years. Dr Mobbs has a subspecialty interest in spinal surgery and is an expert in the diagnosis, assessment, and surgical intervention of spinal conditions.[87]
In the March 2023 Mobbs Report, Dr Mobbs described the procedure he performed on the Applicant in November 2021, and the outcome as follows:[88]
Mr Latham had an L3/L4 decompression performed, also called a minimally invasive laminectomy. This was performed via keyhole exposure with minimal disruption to the muscular ligamentous complex of the back.
In simple terms, this involves. a small incision on the patient's back, exposure of the bones at the L3/L4 level, removal of a small amount of bone and spinal ligament, causing narrowing of the spinal canal and closure. The patient was mobilised soon after surgery and discharged within 24 hours.
Using these minimally invasive techniques cause minimal spinal instability and minimal increased risk of future injury. While I accept that previous techniques to perform the surgery were highly invasive and highly destabilising the current keyhole techniques cause minimal instability.
Should anyone wish to investigate in further detail a follow-up MRI scan can be performed which will demonstrate minimal disruption of intact supporting structures.
The patient's operation was successful. He had near instant relief of the nerve symptoms down the legs and continues to do well. At follow-up consultations the patient was pleasantly surprised with the excellent results of the surgery and his rehabilitation.
(Emphasis added)
In relation to the condition of the Applicant’s spine following the procedure and future risk of injury, taking into account the assumptions in the letter of instruction, Dr Mobbs stated the following:[89]
The condition of Mr Latham's spine, following the L3/4 decompression is excellent. At the levels above and below the surgical site, he has minimal degenerative changes and this would be in keeping with an asymptomatic person of a similar age.
…
Having an operation does not automatically mean that you are disabled. With the current keyhole techniques, we need to appreciate that this results in minimal disruption and patients can return to full activities that are age and condition appropriate.
…
I do not believe that the patient has any increased risk of further spinal injury, as compared with a symptomatic person of Mr Latham’s age and sex.
(Emphasis added)
In response to Dr Home’s opinion that a further injury to the Applicant ‘could be catastrophic’ and likely to require three level fusion surgery, Dr Mobbs stated:[90]
…I do not agree that further injury would be catastrophic. Any further injury would be in the same likelihood as a patient of similar age and sex.
The potential requirement for a three level fusion is simply ludicrous. I do not know how anyone could establish this potential scenario given the discs above and below L3/4 are actually in surprisingly good health for a gentleman of Mr Latham’s age. I can see no indication, nor potential indication for a multilevel spinal fusion.
It would be a case of gross overservicing, if any spinal surgeon recommended a three level fusion in this scenario!
(Emphasis added)
In relation to the risk of reinjury to the Applicant through exposure to low frequency whole body vibration, Dr Mobbs stated:[91]
The issue of low body frequency vibration and back pain is discussed in the literature. Note should be made however that there is no high-level evidence to confirm this.
The relationship between whole body vibration and low back pain in humans has been established through cohort studies with low level of evidence, with vibration inputs that potentially lead to symptoms rarely, if ever quantified.
The parameters of vibrational stimuli, including frequency, and direction may play a role in degenerative disc disease, however, the specific cause and effect relationship between vibration and spinal pathology remains, mostly unknown.
In further evidence-in-chief given before the Commission, Dr Mobbs stated:
· That the reporting of the pre-operative MRI scans is ‘grossly overstated’ and the degree of severity reported is simply not the case;[92]
· That in addition to the pre-operative CT and MRI scans, the Applicant also underwent flexion extension x-rays. Dr Mobbs stated that a flexion extension x-ray is taken to assess the stability of each individual spinal segment. The pre-operative flexion extension x-rays demonstrated that the Applicant had overall stable mechanics of his lumbar spine in various positions of function;[93]
· That the presence of multi-level disc bulging is not an abnormal finding. Rather, it is a reflection of the normal degenerative age-related process and that the pre-operative scans identify ‘almost normal’ findings having regard to a person in the Applicant’s age bracket;[94]
· That he disagreed that any future aggravation would require spinal stabilisation based on the Applicant’s clinical and radiological status;[95] and
· In relation to whole body vibration, that there would be a low level of increased risk in terms of progressive degenerative change if the Applicant was exposed to constant chronic vibration all day every day, but this would not be of such a level to prevent the Applicant from returning to work as a Deputy.[96]
Under cross examination, Dr Mobbs, accepted:
· That the Applicant has osteoarthritis/moderate facet arthropathy as a consequence of age-related degenerative change;[97]
· That the Applicant’s work history would cause an increased rate of degenerative change compared to a person working in an office environment or ‘desk job’;[98]
· That the Applicant is typical of a male worker of his age with some degenerative issues;[99] and
· That the assessment of a person’s ability (or capacity) to carry out their work requirements following injuries or surgery is a matter that falls within Dr Home’s expertise.[100]
In re-examination, Dr Mobbs stated that following the spinal decompression surgery, the level of risk (of future injury) to the Applicant is minimally more than a colleague of the same age, same sex, and same activity.[101]
Summary of the Applicant’s Submissions
The Applicant submitted that the issue in dispute is whether the Applicant is suffering from any relevant incapacity.
The Applicant submitted there is a clear conflict between the opinion of Dr Home on the one hand and Dr Mobbs on the other. The Applicant submitted that Dr Mobbs’ opinion is that the Applicant’s spinal condition is no different from any other asymptomatic person of his age and sex.
The Applicant submitted that Dr Mobbs’ opinion must be preferred for the following reasons:
· Dr Mobbs is a neurosurgeon with a sub-specialty in spinal surgery and has unrivalled qualifications in assessing spinal health and the risk of further spinal injury. Furthermore, Dr Mobbs is independent with no ongoing relationship with any of the parties;
· Dr Mobbs views and opinions are well articulated and within his field of expertise. Whereas, Dr Home’s opinions were, for the most part, mere assertions which should be given no weight;
· Dr Home’s opinions were based on a wrong assessment of the Applicant’s spinal condition. The Applicant submitted that the uncontradicted evidence of Dr Mobbs is that the report is not an accurate interpretation of the MRI. Furthermore, Dr Home was unable to say with confidence whether he had ever seen the MRI’s and accepted that he had not seen the CT scans;
· Dr Home’s opinion regarding whole body vibration does not rise beyond the level of mere assertion. There is no evidence to suggest that the level of vibration to which workers at the Appin Mine might be exposed is dangerous to the Applicant or anyone else. In this respect, the Applicant submitted that Dr Mobbs accepted there is some risk of spinal injury to any worker if exposed to vibration ‘all day every day’, as was the case in the cases cited by Dr Home. The Applicant referred to the Respondent’s Road Conditions TARP[102] and submitted that the Respondent has implemented highly sophisticated system for monitoring road surface conditions within the Appin Mine.
The Applicant submitted that the inherent requirement of the role of a Deputy at the Appin Mine is the job of an inspector and a supervisor. The Applicant submitted that the level of manual handling contended for by the Respondent is inconsistent with the core function of the role, which is to supervise and monitor compliance.
The Applicant submitted that the evidence is clear that those tasks which Dr Home considers the Applicant unable to perform were not essential or inherent to the position of a Deputy, but rather were marginal aspects of the job, which the Applicant did not perform.
The Applicant submitted that it is clear in the evidence that he is not at any higher risk, or any materially higher risk, of injury than any other worker.
The Applicant submitted that he is fit to perform the inherent requirements of the role of Deputy that are essential and therefore, there was no valid reason for his dismissal and that the dismissal was harsh, unjust and unreasonable.
The Applicant submitted that he should be reinstated with backpay in an amount to be agreed between the parties, or in the absence of agreement, as determined by the Commission.
Summary of the Respondent’s Submissions
The Respondent submitted that the Applicant was employed at an underground coal mine, an inherently dangerous and dynamic working environment, in which a high level of physical capacity is required in order to work safely including in normal, unusual and emergency conditions. The safety of others can also depend on this capacity.
The Respondent submitted that while the spinal decompression procedure was successful and resolved the spinal stenosis, the degenerative conditions that led to spinal stenosis will continue to gradually affect the capability of the Applicant’s spinal function and that it may reoccur.
The Respondent submitted that it was Dr Home’s uncontradicted evidence that the spinal decompression procedure has affected the stability of the Applicant’s spinal column.
The Respondent submitted that taking these matters into consideration, the Applicant cannot be considered to be in any better physical condition in relation to his back than he was at the time of his operation in November 2021.
The Respondent submitted that it sought advice from Dr Home, who after conducting the February IME, which included reviewing the materials provided to him and conducting discussions with the Applicant, considered there were three ‘critical and unavoidable’ requirements of the Applicant’s role warranting the recommended permanent medical restrictions.
The Respondent submitted that Dr Home was entitled to rely on the imaging findings as set out in the January 2022 Paolini Report and the 28 March Paolini Report.
The Respondent submitted that the March 2023 Mobbs Report was obtained post dismissal and was evidence limited to the successful outcome of the spinal decompression procedure. In this respect, the Respondent submitted that Dr Mobbs’ evidence cannot be accepted as relevant to the issue of whether there was a valid reason for the termination of the Applicant’s employment, because his expertise is not the correct expertise, and it is an expression of opinion which can only be related to a point in time some nine months prior to termination.
The Respondent submitted that Dr Mobbs accepted that the assessment of injuries, illness, and disease, and how these impact upon a person’s functional capacity, are matters that fall within the expertise of an occupational physician.
The Respondent submitted that while it was within the jurisdiction of the Commission to do so, it would be unusual for the Commission to set aside the evidence of an occupational physician in determining an issue of capacity.
The Respondent submitted that where an employer is responsible for maintaining safety in a dangerous workplace and has received credible evidence that it is no longer safe for an employee to work in the environment, it is problematic to require the employer to 'arbitrate' between that advice and any competing advice. The Respondent submitted in these circumstances that it must take a conservative approach, preferring an option which is safe over one which may be risky and that the Commission would be slow to set aside or criticise such a decision.
The Respondent submitted that after reviewing the medical reports, Mr Stuckey decided that he preferred the evidence of Dr Home, that the Applicant was permanently incapacitated for work and was not able to safety perform the inherent requirements of his position as a Deputy.
The Respondent submitted that Mr Stuckey was particularly concerned about the three ‘critical and unavoidable’ requirements of the Applicant’s role identified by Dr Home.
The Respondent submitted that it had a valid reason for the Applicant’s dismissal because he was unable to safely perform the inherent requirements of his role as a Deputy. The Respondent submitted that the Applicant’s dismissal was procedurally fair.
In relation to other relevant matters, the Respondent submitted that the Commission should take into account and give significant weight to the potentially catastrophic consequences to the Applicant if he was allowed to return to work as a Deputy.
The Respondent submits that the application should be dismissed and that no remedy is appropriate. The Respondent submitted that if the Commission does determine that the dismissal was unfair, reinstatement is inappropriate in this case.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute, and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.
There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the application was made within the period required in s.394(2);
(b) the Applicant is a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[103]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[104] and should not be “capricious, fanciful, spiteful or prejudiced.”[105] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[106]
The Respondent submits that there was a valid reason for the dismissal of the Applicant related to the Applicant’s capacity. “A reason will be ‘related to the capacity’ of the Applicant where the reason is associated or connected with the ability of the employee to do his or her job.”[107]
Where an employer asserts that there was a valid reason for the dismissal of the Applicant related to the Applicant’s capacity to perform the inherent requirements of his/her/their substantive role, “it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered”.[108]
I have set out earlier my findings in relation to the inherent ‘physical’ requirements of the role of a Deputy at the Appin Mine.[109]
The key issue in dispute is the conflict between the evidence of Dr Home and Dr Mobbs as to the condition and stability of the Applicant’s spine following the spinal decompression procedure in November 2021.
Where there is conflicting medical evidence, the Commission must resolve the conflict. This requires the Commission to consider and make findings as to whether, at the time of dismissal, the Applicant suffered from the alleged incapacity having regard to the relevant medical and other evidence before the Commission.[110]
The medical evidence, even if obtained after dismissal, must be directed to the Applicant’s state of health at the time of dismissal.[111]
I accept the evidence of both Dr Home and Dr Mobbs that the question of whether a person has functional capacity falls within the expertise of Dr Home. However, any assessment of functional capacity must be based on an accurate assessment of the condition of the persons health – in this matter, the condition and stability of the Applicant’s spine.
Having given careful consideration to the evidence before me, I prefer the evidence of Dr Mobbs over Dr Home in relation to the condition and stability of the Applicant’s spine for the following reasons.
First, in relation to the pre-operative imaging, Dr Mobbs was clear in his evidence that he had reviewed the pre-operative CT and MRI scans and that a flexion extension x-ray had been taken and that the reporting of the pre-operative imaging, whether that of A/Prof Paolini or the radiologist, was ‘grossly overstated’. Dr Mobbs evidence was clear that the condition of the Applicant’s spine had minimal degenerative changes and was in keeping with an asymptomatic person of a similar age. In relation to the flexion extension x-ray, Dr Mobbs stated that it demonstrated overall stable mechanics of the Applicant’s lumbar spine in various positions of function.
Conversely, Dr Home accepted that he had not viewed the CT scans and his evidence was to some extent uncertain as to whether he had directly reviewed the pre-operative MRI scans, or whether any review was based on a photograph of the MRI scans on the Applicant’s mobile telephone. Irrespective of this, Dr Home accepted that while he is experienced in reviewing spinal imaging, he did not have the same level of experience as Dr Mobbs.
While the Respondent submitted that Dr Home was entitled to reply on the imaging findings as set out in the January 2022 Paolini Report and the 28 March Paolini Report, it is clear that, at the very least, Dr Home had reviewed the imaging via the Applicant’s photograph and formed his own view.
Second, Dr Home placed significant emphasis on the pre-operative imaging as the basis for the permanent medical restrictions. In the February 2022 Home Report, Dr Home recommended permanent restrictions in relation to the Applicant’s ‘spinal condition’ and that particular duties were unsuitable ‘taking into account [the Applicant’s] spinal condition, due to the risk of material aggravation of the identified multilevel spinal degenerative changes.’
In the April 2022 Home Report, Dr Home stated that in relation to this spinal condition, the medical restrictions are placed to prevent the substantive risk that heavy manual work will aggravate the Applicant’s substantial known pathologies.
In the June 2022 Home Report, Dr Home stated that the reason for the permanent restrictions is the Applicant’s known spinal pathology.
Third, Dr Mobbs is the neurosurgeon who performed the spinal decompression procedure and is uniquely placed to comment on the condition of the Applicant’s spine having performed the procedure. Dr Mobbs stated that following the spinal decompression procedure the condition of the Applicant’s spine was excellent and in keeping with an asymptomatic person of a similar age, and that any increased risk of further spinal injury was minimal compared to that of an asymptomatic person of the same age and sex.
Fourth, Dr Mobbs was clear in his evidence that the spinal decompression procedure had minimal impact on the stability of the Applicant’s spine. Conversely, Dr Home while reported to the Respondent that the spinal decompression procedure added vulnerability and heightened risk of reinjury, he ultimately accepted that the procedure had minimal impact on the Applicant’s spinal stability.
Fifth, while I accept the Respondent’s submission that the evidence of Dr Mobbs was relevant to November 2021, that submission equally applies to the evidence of Dr Home as to his review of, and the emphasis he places on, the pre-operative imaging. Furthermore, it is unclear whether Dr Home reviewed the pre-operative imaging at any time other than as part of the February IME.
The Respondent’s view that the Applicant could not perform the inherent requirements of his role of a Deputy at the Appin Mine was based upon his medical conditions and in particular, the condition of his spine.[112]
Having regard to my preference for the evidence of Dr Mobbs, I am not satisfied that the Applicant suffered from the alleged spinal incapacity at the time of dismissal.
As a consequence, the Respondent’s dismissal of the Applicant for the reason that he was unable to perform the inherent requirements of the role of a Deputy is a not a valid reason.
The absence of a valid reason weighs in favour of a conclusion that the Applicant’s dismissal by the Respondent was unfair.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[113]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[114]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[115]
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
The Respondent did not refuse to allow the Applicant to have a support person. This factor weights neutrally in my consideration.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. This factor weights neutrally in my consideration.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This factor weights neutrally in my consideration.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
It is not in dispute, and I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. This factor weights neutrally in my consideration.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
As noted above, the Respondent submits that significant weight should be given to the potentially catastrophic consequences to the Applicant had he been allowed to return to work.
This submission seems to be prefaced on the advice provided to the Respondent and the duty the Respondent owed to the Applicant. However, that advice has been found to have been based on an inaccurate assessment of the condition and stability of the Applicant’s spine.
I have taken into account the Applicant’s age (63 years) and length of service (34 years), which I consider support a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[116]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable because there was not a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was not unfair.
In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
I note the Respondent’s submission that it should not have to ‘arbitrate’ competing medical evidence in coming to a conclusion as to whether an employee is fit to perform the inherent requirements of their role.
However, the Respondent was aware that there was a conflict in the views between Dr Home and A/Prof Paolini prior to terminating the Applicant’s employment. While it was open to the Respondent to seek a further opinion, it did not do so.
There is always an element of risk in relying on a medical opinion which is later found to have been inaccurate or overstated. In circumstances where an employer is in receipt of competing medical opinions, it would be prudent to seek a further opinion which may be best achieved by the parties agreeing on a nominated independent medical expert.
Conclusion
I am satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
The Applicant seeks reinstatement and back-pay. The Respondent opposes reinstatement.
The legislative provisions relevant to determining a remedy for unfair dismissal are set out in Division 4 of Part 3-2 of the FW Act as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
In determining a remedy for unfair dismissal, it is only upon a finding that reinstatement is inappropriate that the Commission can proceed to consider the alternative remedy of compensation.[117]
The Respondent’s submissions in relation to reinstatement were as follows:
As [the Applicant] is unable to safely work at the Mine without causing a risk to the health and safety of himself and others, it would not be appropriate to reinstate him to his previous employment as a Deputy.
It is clear that the Respondent’s position regarding reinstatement is based on its view that the Applicant is unable to perform the inherent requirements of the role of a Deputy.
Taking into consideration my findings as to the Applicant’s alleged incapacity, and balancing all relevant factors in the case, I find that reinstatement of the Applicant is not inappropriate.
In this respect I have had regard to the evidence that on 24 January 2023 the Applicant completed refresher training on emergency evacuations delivered by Mines Rescue. This training required the Applicant to wear a CABA suit in a simulated emergency evacuation.[118]
I have also taken into consideration the Applicant’s shoulder condition and note that he was previously able to work as a Deputy within the restrictions placed on him. Furthermore, during these proceedings, the Respondent has readily acknowledged that if the issue was limited to his shoulder condition, it would have been a different outcome.[119]
I order that the Applicant be reinstated. Reinstatement of the Applicant shall be effected within 21 days of the date of this Decision or such earlier time as may be agreed by the parties.
I will also make an order pursuant to s.391(3) of the FW Act that the Respondent pay to the Applicant lost remuneration for the period from his dismissal to the date of his reinstatement, less the notice paid on termination.
Further, I propose to make an order pursuant to s. 391(2) of the FW Act to maintain the continuity of the Applicant’s employment, as if his dismissal had not occurred.
Orders giving effect to my conclusions will be issued contemporaneously with this decision.
COMMISSIONER
Appearances:
Mr O Fagir, of counsel for the Applicant.
Mr D Williams, solicitor, for the Respondent.
Hearing details:
Sydney:
2023.
13, 14 June.
[1] Exhibit A4 at [6].
[2] Ibid at [32].
[3] Ibid at [6].
[4] Ibid at [8].
[5] Ibid at [9].
[6] Ibid at [10]-[12].
[7] Ibid at [12]-[13].
[8] Exhibit A7.
[9] Exhibit A4 at [16]-[20]; Exhibit R2 at [22].
[10] Transcript at PN1165, PN1270-PN1277.
[11] Exhibit A4 at [20], Exhibit R3, Annexure AH3.
[12] Exhibit A3 at [4]; Exhibit R2 at [20], [37]; Transcript at PN346-PN351; PN467-PN471; PN922-PN923.
[13] Ibid at [34]-[35].
[14] Ibid at [35]; Exhibit R3, Annexure AH2.
[15] Exhibit A4 at [38]; Exhibit R3, Annexure AH4 (at p.3).
[16] Exhibit A4 at [40]; Exhibit R3 at [17]-[22], Annexure AH4.
[17] Exhibit R3, Annexure AH4 (at p.5).
[18] Exhibit A4 at [41], Annexure AWL2.
[19] Exhibit A4 at [42]-[43].
[20] Exhibit A4 at [43]; Exhibit A2.
[21] Exhibit R1, Annexure AS1.
[22] Exhibit A4 at [44]-[46].
[23] Exhibit R3, Annexure AH7
[24] Exhibit R3 at [11], Annexure AH7.
[25] Exhibit R1 at [9]-[14].
[26] Exhibit R3 at [23], Annexure AH5.
[27] Exhibit R3 at [29], Annexure AH8.
[28] Exhibit R3 at [23]-[30].
[29] Exhibit R3 at [31]-[34], Annexure AH8 (at p.4-6).
[30] Exhibit R3, Annexure AH8 (at p.5).
[31] Exhibit R1 at [20].
[32] Exhibit A4 at [54], Annexure AWL5.
[33] Exhibit A4, Annexure AWL5.
[34] Ibid.
[35] Ibid at [55].
[36] Ibid at [56], Annexure AWL6.
[37] Ibid.
[38] Ibid.
[39] Exhibit R1 at [21]-[24].
[40] Exhibit R3 at [35]-[36], Annexures AH9 and AH10.
[41] Exhibit R1 at [25]; Exhibit R3, Annexure AH11.
[42] Exhibit R3 at [38], Annexure AH11.
[43] Exhibit A4 at [58]; Exhibit R1 at [34].
[44] Exhibit R1 at [27]-[33].
[45] Exhibit A4 at [59], Annexure AWL6.
[46] Exhibit A4 at [60], Annexures AWL8 and AWL9; Exhibit R1 at [35], Annexure AS4.
[47] Exhibit R1 at [37], Annexure AS4.
[48] Exhibit R3 at [40]-[41], Annexures AH12 and AH13.
[49] Exhibit R3 at [42], Annexure AH14.
[50] Exhibit R3 at [43]-[44].
[51] Exhibit R3, Annexure AH14 (at p.4-5).
[52] Exhibit R1 at [41].
[53] Exhibit R1 at [43], Annexure AS5.
[54] Exhibit A4 at [66], Annexure AWL11; Exhibit R1 at [44], Annexure AS6.
[55] Exhibit R1 at [45].
[56] Exhibit A4 at [67], Annexure AWL13; Exhibit R1 at [47], Annexure AS7.
[57] Transcript at 787-PN790, PN852.
[58] Exhibit R3, Annexure AH3.
[59] See X v Commonwealth [1999] HCA 63 at [102] (per Gummow and Hayne JJ).
[60] Exhibit A4 at [5], [68]-[69], Schedule A; Exhibit A3 at [21]-[35].
[61] Exhibit R2 at [20]-[43], Annexure TS2.
[62] Exhibit A1.
[63] Transcript at PN353-PN461, PN582-PN602.
[64] Exhibit A1.
[65] Exhibit R3 at [3], [5], Annexure AH1.
[66] Ibid at [4], [7]-[10].
[67] Ibid, Annexure AH8.
[68] Ibid.
[69] Ibid.
[70] Ibid, Annexure AH11.
[71] Ibid, Annexure AH14.
[72] Ibid.
[73] Ibid.
[74] Exhibit R4 at [7], Annexure AH1.
[75] Ibid.
[76] Ibid.
[77] Ibid.
[78] Transcript at PN1682, PN1689.
[79] Exhibit A5 at [11]; Transcript at PN1682-PN1696, PN1952.
[80] Transcript at PN1673-PN1674.
[81] Transcript at PN1632.
[82] Exhibit R3 at [39]; Transcript at PN1676-PN1678.
[83] Exhibit R3 at [49]-[53]; Exhibit R4 at [10]-[11]; Transcript at PN1616-PN1621.
[84] Exhibit R4, Annexure AH1; Robertson v Gillman Bros Mining Contractors [2005] WADC 95 and Conley v Daracon Mining Pty Limited [2010] NSWDC 256.
[85] Robertson v Gillman Bros Mining Contractors [2005] WADC 95 at [179], [244].
[86] Transcript at PN1854-PN1894, PN1946.
[87] Ibid; Transcript at PN164-PN169.
[88] Exhibit A2.
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] Transcript at PN117.
[93] Transcript at PN120.
[94] Transcript at PN124.
[95] Transcript at PN127.
[96] Transcript at PN150-PN153.
[97] Transcript at PN222-PN226.
[98] Transcript at PN234.
[99] Transcript at PN254.
[100] Transcript at PN273-PN283.
[101] Transcript at PN294.
[102] Exhibit 18.
[103] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[104] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[105] Ibid.
[106] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.
[107] Crozier v Australian Industrial Relations Commission [2001] FCA 1031 at [14].
[108] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022 at [22].
[109] See paragraphs [67] to [76] above.
[110] CSL Limited T/A CSL Behring v Chris Papaioannou[2018] FWCFB 1005 at [76]-[77].
[111] Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited[2018] FWCFB 3989 at [62]-[67]; Jetstar Airways Pty Limited v Monique Neeteson-Lemkes[2013] FWCFB 9075 at [55].
[112] Exhibit R1 at [45]; Transcript at PN828.
[113] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
[114] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].
[115] Ibid.
[116] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].
[117] Holcim (Australia) Pty Ltd v Serafini[2011] FWAFB 77904 at [24].
[118] Exhibit A5 at [8]-[9], Annexures AWL14, AWL15 and AWL16.
[119] Transcript at PN2187.
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