Mr Bruce Forbes v Brisbane City Council T/A Brisbane Transport

[2010] FWA 7003

[2010] FWA 7003

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Bruce Forbes
v
Brisbane City Council T/A Brisbane Transport
(U2009/13429)

COMMISSIONER ASBURY BRISBANE, 8 SEPTEMBER 2010

Application for unfair dismissal remedy.

BACKGROUND

[1] This is an application by Mr Bruce Forbes under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is the Brisbane City Council (the Council). Mr Forbes was employed as a Bus Operator from 1 November 1999 and was dismissed on 22 October 2009. Mr Forbes last performed the role of Bus Operator on a full time basis on 18 June 2008, because Mr Forbes was suffering from the effects of a series of injuries sustained throughout the course of his employment. Most of those injuries were work related, and Mr Forbes made seven accepted claims for workers compensation in respect of them.

[2] On 26 June 2009, the Council wrote to Mr Forbes requiring him to “show cause” as to why his employment should continue, due to his absence from work and the consequential impact on his ability to perform the inherent requirements of his role. 1 Mr Forbes responded in detail, in a letter of 3 July 2009, maintaining, on the basis of a report from his treating specialist, that he could resume his role as a Bus Operator through a “graduated return to work” including in the role of Bus Assistant.2

[3] The Council again wrote to Mr Forbes on 22 October 2009, informing him that medical opinion was that there would be significant risk of further injury, or aggravation of a pre-existing condition, if Mr Forbes returned to work as either a Bus Operator or a Bus Assistant, and that Council could not legally or ethically allow Mr Forbes to return to work under such circumstances. The letter went on to state that Mr Forbes’ employment was terminated with effect from that date.

[4] In his application for an unfair dismissal remedy, Mr Forbes contended that the dismissal was unfair because his most recent assessment by an orthopaedic surgeon indicated that he was fully capable of a graduated return to work which could lead to a full recovery, and that despite this advice, the Council had refused to allow Mr Forbes to return to work. It was further contended that this refusal was a breach of the Brisbane City Council Transitional Enterprise Bargaining Certified Agreement 2009 (EB6).

PRELIMINARY MATTERS

[5] Preliminary matters required to be considered prior to the merits of an application are not in dispute. The application was made within the time required in s.394(2) of the Act. Mr Forbes is a person protected from unfair dismissal as defined in s.382 of the Act. The Small Business Fair Dismissal Code is not relevant. Mr Forbes’ dismissal was not a case of redundancy.

[6] The matter was not resolved through conciliation, and a Directions Conference was held where it was determined that a hearing would be the most effective and efficient way to resolve the matters in dispute.

EVIDENCE

[7] Evidence in support of the application was given by Mr Forbes on his own behalf 3 and by:

• Mr Peter Neville, Bus Operator and member/delegate of the RTBU; 4



• Mr Michael Layt, Organiser with the RTBU; 5 and



• Dr Gregory Nutting, Orthopaedic Surgeon.

[8] Evidence for the Council was given by:

• Ms Shirley Dale, Principal Human Resources Practitioner; 6



• Dr Therese McGrath, Specialist in Occupational Medicine; 7



• Dr Mark Robinson, Orthopaedic Surgeon; 8



• Mr Glenn Keith Berghofer, Depot Manager Carina; 9 and



• Mr Gregory Newman, Human Resources Manager. 10

[9] Evidence was also given on affidavit by Ms Sara Pazell, 11 Occupational Therapist and Ergonomics Consultant; Mr Bruce Morgan,12 Occupational Therapist; Mr Peter Lofgren,13 Psychologist; and Ms Jacqui Rochester,14 Psychologist. These witnesses were not required for cross-examination.

LEGISLATION AND CASE LAW

Unfair Dismissal

[10] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied that the dismissal was harsh, unjust or unreasonable, taking into account the following criteria set out in s.387:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) 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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[11] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it and to decide on balance whether a dismissal is harsh, unjust or unreasonable. A termination of employment may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;



• unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or



• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." 15

Valid Reason for Dismissal

[12] In the present case, a significant issue was whether there was a valid reason for the dismissal of Mr Forbes. The term “valid reason” is found in earlier versions of the legislation 16 and has been extensively considered. In Selvachandran v Peteron Plastics17, Northrop J held that:

“...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and the employee are each treated fairly...” 18

[13] This definition has been widely adopted in decisions of the former Australian Industrial Relations Commission 19 and in my view it is apposite to the consideration of whether there was a valid reason for a dismissal under s.387(a) of the Act.

Incapacity of injured worker as valid reason for dismissal

[14] In Smith v Capral Aluminium 20 Vice President Lawler reviewed cases where incapacity arising from a work related injury has been considered as a valid reason for dismissal. The cases referred to in that decision establish that the principal consideration is whether the employee’s incapacity was of such a nature, or appeared likely to continue for such a period, that further performance of his or her future obligations would be impossible, or a thing radically different from that undertaken by the employee and agreed to be accepted by the employer under the terms of the employment.21 Relevant factors, which are inter-related and cumulative, but not necessarily exhaustive, are:

• The terms of the contract, including the provisions as to sickness pay and whether the employee can return to work within the period during which sick pay is payable;



• How long the employment was likely to last in the absence of sickness;



• The nature of the employment including whether the employee is one of many in the same category or occupies a key post which must be filled on a permanent basis if the absence is prolonged;



• The nature of the illness or injury and how long it has already continued and the prospects of recovery;



• The degree of incapacity and the period over which it has persisted and is likely to persist;



• The period of past employment and whether the relationship is one of long standing. 22

[15] It is also the case that the whole of the terms of the contract, both express and implied, and all the surrounding circumstances, including provision for sick leave and the general practices of the employer, must be considered. 23 Although many of the cases cited in Smith v Capral Aluminium relate to the question of frustration of the employment contract, they are relevant in considering whether incapacity constitutes a valid reason for termination of employment by the employer.

EVIDENCE

Process of dismissal

[16] On 26 May 2009 the Council wrote to Mr Forbes informing him that as his workers compensation claim was finalised on 7 April 2009, rehabilitation, alternative duties and sick leave had now ceased, in accordance with the terms of EB6. The letter also informed Mr Forbes that his eligibility for retraining and placement had been assessed and that he did not meet requirements. No further payment was to be made to Mr Forbes for alternative duties, and he was informed that his continued absence from work and resultant inability to perform his role as a Bus Operator may place his future employment in jeopardy.

[17] The “show cause” letter from Council to Mr Forbes dated 26 June 2009, was in the following terms:

“The purpose of this Show Cause letter is to allow you a formal opportunity to provide reasons why your employment with Brisbane City Council should continue, due to your absence from work and the consequential impact on your ability to perform your role.

• Your WorkCover claim ceased on 7 April 2009. EBA6 Extension Clause 7 p23 states that “if an accepted Workers’ Compensation claim is finalised but the employee is unable to return to work due to that Workers’ Compensation compensable injury/illness, then paid sick leave will not apply for that absence.” Rehabilitation and alternative duties has now ceased together with the provision of paid sick leave.

• In accordance with EBA6 Ext Clause 12 Retraining and Placement, you have been assessed for retraining and placement and regrettably you do not meet the retraining and replacement requirements. Clause 12 states that “if an employee is not suitable for retraining and placement, Council will discuss options in accordance with the Retraining and Placement procedure with the employee and their union, including the cessation of employment”. In this instance, both parties reserve their rights under common law and legislation.

• It has been over 12 months (since 12 June 2008) from when you were able to perform your substantive role.”

As you still remain unable to return to work in your substantive role and your extended absence has caused your inability to perform the inherent requirements of your role, this level of absenteeism is unsustainable, as this has an impact on Brisbane Transport to meet its ongoing operational requirements.

Before a determination on your future employment with the Brisbane City Council, I extend to you the opportunity to respond in writing to this issue of your ongoing absence and your inability to perform to an acceptable level in your role. Any response you wish to make should be submitted ... by close of business 6 July 2009. If no response is received by this time, it will be assumed that you have no response to the issues raised.

You should be aware that your continued absence from work and resultant inability to perform your role as a bus operator may place your future employment with Brisbane Transport in jeopardy.” 24

[18] Mr Forbes provided a detailed response to the “show cause” letter setting out reasons why his employment should not be terminated. 25 In that response Mr Forbes asserted, in summary, that:

• There was no intention on the part of the Council to allow him to return to bus driving or any role;



• He was not aware that the interview with Ms Rochester was an assessment for retraining and placement, but thought the purpose of the interview was to assist in upgrading resume presentation and teaching interview techniques;



• He could return to work if he was able to build up his endurance through a graduated return;



• The clearance provided by Dr Nutting on 16 June 2009 should be accepted and Council had attempted to impose new conditions regarding weight loss and a full clearance for driving which could not be achieved without a graduated return to work; and



• If Council still believed that he was incapable of filling his role due to medical reasons a voluntary medical redundancy would be an acceptable alternative outcome.

[19] On 17 August 2009, a dispute proceeding was commenced in FWA on behalf of Mr Forbes by the RTBU. According to Mr Forbes, that proceeding related to the Council’s refusal to allow him to resume his duties in accordance with a return to work program and an allegation that Council blocked Mr Forbes from entering into a graduated return to work.

Ms Dale said that Mr Forbes responded to the “show cause” letter as well as making a complaint to Council’s Chief Executive Officer. Council agreed to seek further evidence on Mr Forbes’ capacity to return to his substantive position before making a decision on the “show cause” letter. As a result of the complaint, the Council obtained a report from Dr McGrath dated 11 August 2009, which concluded that Mr Forbes lacked the capacity to return to his substantive position without a significant risk of aggravating his right shoulder and neck condition.

[20] It was also concluded that the vocational assessment conducted by Mr Lofgren dated 6 August 2009 found that jobs with a high level of contact with people did not appeal to Mr Forbes and that he lacked computer skills particularly where touch typing was important. Ms Dale said that with the exception of Dr Nutting’s report dated 16 June 2009, the evidence indicated that Mr Forbes was physically incapable of returning to his substantive role.

[21] There were no discussions about Mr Forbes’ dismissal. Under cross-examination Ms Dale said that she had not held any discussions with Mr Forbes as part of the decision making process which lead to his dismissal, but maintained that she had attempted to schedule many meetings with Mr Forbes and Mr Neville of the RTBU and the depot manager Mr Berghofer. Those meetings had not occurred because they were changed by either Mr Forbes or the RTBU.

Reasons for the dismissal

[22] The reasons for Mr Forbes’ dismissal are set out in a letter from the Council dated 22 October 2009 as follows:

“Dear Mr Forbes

I have been informed that you have suffered a number of injuries and medical conditions since 2004 to present, resulting in significant amounts of time off work. You have been unable to perform the duties of your substantive role as a bus driver since June 2008. You’re (sic) Workers Compensation injury claim ceased on 7 April 2009. On 26 May 2009 you were advised that rehabilitation had ceased together with the provision of alternative duties and paid sick leave. As a result you have been absent from work and on unpaid leave since 1 June 2009.

Council has made attempts to return you to driving which have not been successful. Council has also received compelling medical evidence from Dr Robinson and Dr Therese McGrath that the risk of re-injury is significant. You recently provided a medical certificate dated 23 September 2009 from your treating specialist Dr Nutting, who states that you could have made a graduated return to a bus assistant role some time ago as he believes that after conditioning you should be able to perform the role of bus assistant. Council presented this information to Dr McGrath and she has confirmed that the opinion expressed in her report on 11 August remains of the view that the serious risk of re-injury remains. We rely on Dr McGrath’s opinion as she is familiar with the ergonomic demands of both the bus operator and bus assistant role.

I have carefully reviewed the facts in relation to your requests to continue employment with the Council. Medical opinion advises that there is a significant risk of further injury, or aggravation of pre-existing condition if you were to return to work as either a bus operator or bus assistant. Brisbane City Council cannot legally and ethically allow you to return to work under such circumstances.” 26

Injuries suffered by Mr Forbes

[23] It is not in dispute that Mr Forbes suffered from a number of injuries during his working career. Prior to commencing employment with the Council Mr Forbes suffered a back injury and had been absent from his employment as a store person for a period of twelve months.

[24] The history of Mr Forbes’ injuries, derived from uncontested evidence of Mr Forbes, Ms Dale, Dr McGrath, Ms Pazell, Dr Robinson and Dr Nutting, is as follows. On 24 September 2004 Mr Forbes injured his right shoulder while lifting a stroller onto the luggage rack of a bus he was driving. Mr Forbes had two months off work following this injury, and returned to normal duties on a graduated basis over several weeks. On 15 November 2004 while Mr Forbes was on holidays, he fell off a ride-on mower, sustaining facial and skull fractures and a fracture of his left elbow and right wrist. Mr Forbes had four months off and returned to work on a graduated basis. In March 2005 Mr Forbes injured his thumb in the course of employment when a bus he was driving was hit by a vehicle resulting in his right thumb being caught in the steering wheel. This injury settled with physiotherapy and Mr Forbes returned to full duties in May 2005.

[25] In June 2005 Mr Forbes aggravated his right shoulder condition while driving buses, resulting in him being on WorkCover for several months, followed by a strengthening program and a return to work in September 2005 when Mr Forbes continued on normal duties. In February 2007, Mr Forbes underwent a bilateral carpal tunnel release, which was not work related. This resulted in Mr Forbes having 3-4 months off work, and further investigations of his neck. In February 2008, a C5/6 and C6/7 disc protrusion, causing ongoing neck and other limb symptoms, resulted in Mr Forbes undergoing treatment and physiotherapy at the PA Hospital up until April 2008. This included nerve blocks and a discussion about possible surgery.

[26] On 18 May 2008, Mr Forbes aggravated his right shoulder condition when he was working as a “buddy” driver and the driver he was supervising braked suddenly causing Mr Forbes to grab a bar with his right hand. This resulted in increased symptoms to his right shoulder that settled after a couple of days. Mr Forbes had two days off work as a result of that injury. On 12 June 2008, Mr Forbes aggravated his right shoulder conditions when he was required to manually operate bus doors after experiencing difficulty with the electronic controls. This injury was diagnosed as an aggravated right supraspinatus tendonitis.

[27] While employed with the Council, Mr Forbes made a total of 7 accepted claims for workers’ compensation which can be summarised as follows:

• 24 September 2004, shoulder injury;



• 24 March 2005, soft tissue injury to the wrist;



• 30 June 2005, tendonitis to the right wrist;



• 1 September 2005, shoulder soft tissue injury;



• 23 November 2005, prolapsed cervical disc; and



• 26 November 2008 ankle and right and left wrist strain.

In the period from 2005 until February 2010, Mr Forbes had the following leave:

• 156 days of sick leave

• 50 days of workers’ compensation leave;



• 241 days of unapproved unpaid leave.

[28] According to Ms Dale’s evidence, there were also 158 days when Mr Forbes was at work but performing suitable duties. 27 Mr Forbes said that to the best of his knowledge the information about his absences contained in Appendix B to Ms Dale’s affidavit, was correct. Ms Dale said that in reaching the decision to dismiss Mr Forbes, the Council had regard to a number of medical reports. These are summarised below.

Medical Reports

Ms Sara Pazell

[29] Ms Pazell undertook a Postural Analysis in relation to Mr Forbes performing the role of Bus Operator and provided a Report on 22 February 2008. 28 Mr Forbes is recorded as having provided a medical history which included current complaints of pain and discomfort in his neck, forearms and wrists, with the neck pain on a numeric scale of 7/10, being severe and requiring medication. Mr Forbes also reported cramping with numbness in his fingers and recurring and chronic low back pain that is “on and off” since a lifting injury sustained at work in 1994, which lead to permanent restrictions with respect to lifting greater than 20 kg and prolonged static standing. Ms Pazell also records that Mr Forbes reported aggravating factors including sustained sitting over 1 hour; walking greater than 10 minutes; rotating his neck; and tight gripping.

[30] Driving restrictions relating to Mr Forbes are that he can drive only buses with the seat ISRI 6860 on the basis that Mr Forbes’s weight is between 130 and 150 kg. Mr Forbes is recorded as reporting a history of problems including carpal tunnel syndrome, herniated discs, wrist fracture, tendonitis in right shoulder.

[31] It is also reported that Mr Forbes feels muscular soreness and stiffness after approximately 1 hour of sustained driving. In simulated driving posture, Mr Forbes is reported as presenting a seated posture and risk for muscular imbalance.

Dr Robinson

[32] Dr Robinson prepared two reports in relation to workers compensation claims made by Mr Forbes. The first report dated 9 September 2008, indicates that Dr Robinson saw Mr Forbes on 2 September 2008 for the purpose of an independent medical examination report. Dr Robinson reports that Mr Forbes gave a history of injuring his shoulder during two work related events on 19 May 2008 and 12 June 2008 (see above).

[33] Mr Forbes described current problems to Dr Robinson as constant pain over the anterolateral aspect of his shoulder and down the lateral aspect of his arm; inability to sleep on his right side and numbness in his right arm. Mr Forbes also described poor strength to his right hand and problems trying to use his hand over shoulder height. Dr Robinson reports that Mr Forbes then weighed 141 kg and was in the “morbidly obese” range. In relation to past relevant medical history, Mr Forbes is recorded as reporting a history of type II diabetes; multiple surgical procedures to his wrists and a rhinoplasty. Mr Forbes also reported the injury to his shoulder in 2004 while assisting a passenger with a pram and his accident while on the ride on mower at his home. Further, it is noted that Mr Forbes described problems with his lower back and cervical spine.

[34] Dr Robinson examined Mr Forbes again on 17 December 2008 for the purpose of revision, and provided a report to City WorkCover dated 8 January 2009. It is reported by Dr Robinson that Mr Forbes had returned to work after his previous injury starting at 3 hours a day and upgrading to 5. This level of work had aggravated the level of discomfort in Mr Forbes’ shoulder and he took 5 weeks off for annual leave and returned to work on suitable duties. Mr Forbes’ general practitioner had certified him as fit to work 5 hours a day, and although Mr Forbes described minimal symptoms in his shoulder, he expressed concerns about how his shoulder would tolerate returning to a normal bus driving shift and overtime work.

[35] In response to a question about any pre-existing condition which may be a contributing factor, to Mr Forbes’ ongoing right shoulder symptoms, Dr Robinson states that Mr Forbes has Type II Diabetes which is dietary controlled, obesity, depression and cervical spine problems. The C6-7 disc protrusion may be a producing symptoms referring to his shoulder but this is said to be outside Dr Robinson’s area of expertise. Work related conditions are listed as right supraspinatus tendonitis and possible nerve root irritation in neck, both of which are said to be pre-existing conditions which have been aggravated.

[36] Dr Robinson stated that Mr Forbes does not present with shoulder pathology that would respond to physiotherapy and that the problem appears to be endurance of his arm relating to work activities. Mr Forbes is physically capable of driving a bus but appears to struggle with the duration of driving, and his problem is more related to endurance than movement and strength. While a gym conditioning program may help, Mr Forbes is also at risk of aggravating his shoulder symptoms with such a program. In relation to whether Mr Forbes will be able to return to his substantive role as a bus driver, Dr Robinson concludes:

“I think it unlikely that Mr Forbes would return to his substantive role as a Bus Driver. It is six months since his most recent injury and he has only achieved a maximum of five hours a day before developing symptoms in his shoulder.”

[37] Under cross-examination, Dr Robinson agreed that he had not met or treated Mr Forbes prior to the examinations resulting in his reports, and that he had a limited knowledge of Mr Forbes’ medical history. In response to the proposition that nothing in his reports could be taken to be an opinion upon any neck or back condition Mr Forbes may or may not have had, Dr Robinson pointed to comments about Mr Forbes’ neck in his second report, but agreed that his reports were limited to the shoulder. Dr Robinson also agreed that events could overtake his report and that a report from 8 January 2009 was unlikely to be an accurate assessment of Mr Forbes’ condition in April 2010.

[38] While agreeing that a graduated return to work would have assisted Mr Forbes to build endurance, Dr Robinson maintained that previous attempts by Mr Forbes to return to work on a graduated basis, indicated that it was unlikely that Mr Forbes would ever return to 8 hours a day bus driving. Dr Robinson said that if Mr Forbes was working shifts driving a bus for an average of 5 hours a day in split shifts of 2 to 3 hours maximum, this had not increased past the stage Mr Forbes had reached when Dr Robinson last saw him. Dr Robinson also said that people are always at risk of injury in workplaces and the issues were risk of injury and risk of aggravation of symptoms. Mr Forbes was getting aggravation of symptoms when he was working more than five hours a day back in December 2008, but was not structurally damaging his shoulders with that work.

[39] Dr Robinson also said that the things which initiated the injuries - grabbing a handrail for support during a sudden stop and manually opening and closing doors - could not be predicted, but if such events did occur, Mr Forbes is generally at higher risk of injuring himself than a 25 to 30 year old fit and healthy employee with no history of previous shoulder problems.

Mr Bruce Morgan

[40] Mr Morgan prepared a report dated 12 February 2009, for the purpose of assessing Mr Forbes’ capacity to return to bus driving after a prolonged absence. 29 After reviewing the history of Mr Forbes’ injuries, Mr Morgan notes that Mr Forbes has reported that a lower cervical disc prolapsed was identified.

[41] Mr Forbes reported to Mr Morgan that he had pain symptoms in his right shoulder and that pain is associated with shoulder movements with the arm extended. Mr Forbes also reported altered sensation in both hands, first three fingers with extended use of outstretched arms. Movements of Mr Forbes’ right shoulder are said to be associated with an “arc of discomfort” when reaching in flexion, abduction and internal rotation, and ranges of movement were minimally restricted. Mr Forbes’ strength with arm abducted 90° is reported by Mr Morgan as being 4/5.

[42] Mr Morgan conducted an on-road assessment during which Mr Forbes drove a bus for 25 minutes in the Carina area, atypical of a route driven by Mr Forbes. Mr Forbes reported fatigue and discomfort associated with reaching for controls while seated, and a review of Mr Forbes’ right shoulder function after the assessment indicated increased discomfort when moving the right arm and strength of 3/5 with arm abducted 90°.

[43] In summary, Mr Morgan reports that Mr Forbes demonstrates and reports a history of chronic right shoulder dysfunction and bilateral symptoms of altered sensation related to cervical problems. The position of Mr Forbes’s arms during bus operation has a strong association with aggravation in the right shoulder and the neck. In conclusion, Mr Morgan states:

“Mr Forbes should not return to bus driving. He has structural problems with his right shoulder and neck both placed under load with the bus driving task.

The chronic nature of his right shoulder is well demonstrated with repeated exacerbations and time off work. It is likely the cervical problems are contributing to this.

Mr Forbes has physical constraints that are incompatible with bus driving. Alternative duties that do not require sustained reaching (as required when operating a bus) should be considered.”

Dr Therese McGrath

Dr McGrath saw Mr Forbes on 11 August 2009, and produced a Report on that date. 30 Dr McGrath Reported that after the June 2008 injury, Mr Forbes attempted to return to work in July 2008 and failed after two days, and was off work again until October 2008. When Mr Forbes returned to work at that time, he worked for 3 hours per day, upgrading to 5 hours per day with some increase in symptoms, resulting in Mr Forbes being certified as totally incapacitated for work from November 2008. Mr Forbes performed suitable duties until April 2009. In response to a series of questions, Dr McGrath concludes as follows in relation to Mr Forbes:

• Diagnosis is right shoulder supraspinatus tendonitis, cervical spine C5/6 and C6/7 disc protrusions and morbid obesity are said to be the conditions impacting capacity for work;



• Based on history and the results of the Occupational Therapist driving assessment in February 2009, it is unlikely that there is capacity for a full return to substantive role without significant risk of aggravation of right shoulder and neck condition;



• Morbid obesity also impacts on capacity to work due to weight limits of seating in buses and Mr Forbes is restricted to driving buses with Isringhausen 6860 seating;



• There is a risk of exceeding the limit of buses with Isringhausen 6860 seats as Mr Forbes is 4kg below the limit for buses fitted with this seating and has gained 5kg since September 2008;



• Neck condition and right shoulder condition impact on capacity to perform substantive role without significant risk of aggravation given sitting with arms extended is a risk factor for both conditions;



• A physical strengthening program over 6 to 8 weeks, supervised by an exercise physiologist to improve endurance of muscles around the shoulder may be of benefit; and



• There have been problems with compliance with previous exercise programs in the past, and after such a program Mr Forbes may be able to perform duties on a part time basis but is unlikely to upgrade beyond four hours, with risk of aggravation remaining.

Permanent restrictions are that Mr Forbes:

• has not been suitable to drive MAN buses since 2005 due to his right shoulder condition;



• is not suitable for buses with Bremshey or Isringhausen 6500 seating;



• is not likely to have the shoulder endurance to work more than part-time hours such as 4 hours per day;



• would not be fit to manage overhead hatches or assist with lifting or manoeuvring a wheel chair or operate a manual destination control.

[44] Dr McGrath concluded that Mr Forbes’ neck and right shoulder conditions are stable and stationary in that they are not likely to change in the next 12 months by more than 3% permanent impairment according to AMA guidelines. Mr Forbes is not suitable for total and permanent disablement because a vocational assessment has identified suitable alternative positions and is currently fit for work in an alternative role such as the administrative type role he has been performing between December 2008 and April 2009.

[45] On 6 October 2009 Dr McGrath made a second report in relation to Mr Forbes, in response to additional information in the form of a report from orthopaedic surgeon Dr Nutting, dated 23 September 2009. Dr McGrath states that after considering the information in that report, she continues to have the same opinion as that expressed in the report of 11 August 2009. 31 In her evidence to the Tribunal, Dr McGrath said that in her report of 6 October 2009 she had considered the role of Bus Assistant and is generally familiar with that role through visiting two bus depots and conducting pre-employment assessments for roles within Council including that of Bus Assistant. In relation to Mr Forbes’ suitability for the role of Bus Assistant, Dr McGrath said that in making her reports, she considered that Mr Forbes was at significant to high risk of injury in that role.

[46] Under cross-examination Dr McGrath said she had not met or treated Mr Forbes before 11 August 2009, and that her knowledge of Mr Forbes’ medical history was based on instructions from the Council; Mr Forbes’ verbal advice and records available from various medical professionals including Dr Nutting and Dr Robinson. Dr McGrath had not seen Mr Forbes’ entire medical file. Dr McGrath saw Mr Forbes in August 2009, and said that there was no requirement to see him again in October 2009 before issuing her second report. In response to a question as to whether Mr Forbes’ condition may have changed by October 2009, Dr McGrath said that she was considering his multiple medical conditions, his back condition and neck condition, and did not expect those conditions to have changed significantly in that time.

[47] Mr Forbes told Dr McGrath in August 2009, that he had undergone a nerve block and there was a possibility of surgery on his neck. In response to the proposition that Mr Forbes had not complained of neck pain, Dr McGrath said Mr Forbes would probably not have had a nerve block unless he had symptoms. The nerve block had improved tingling in Mr Forbes’ hands and a C6/7 disectomy was planned. Mr Forbes told Dr McGrath about his back condition and that he had permanent and ongoing restrictions in relation to heavy and repetitive lifting and needed to limit his standing. Dr McGrath disagreed with the proposition that Mr Forbes’ shoulder was the primary concern in relation to him returning to his job as a bus operator, and maintained that Mr Forbes’ neck injury was also of concern.

[48] In response to the proposition that Mr Forbes is now performing the role of Bus Operator for another employer, and had done so for some months without injury, Dr McGrath said that she had spoken to Mr Forbes about the possibility of performing the Bus Operators role on a part time basis, and that significant risk of injury does not mean that injury happens immediately. Dr McGrath said that she would not have benefited from a further examination of Mr Forbes before preparing her second report, because it was based on reliable information such as functional assessments, risk assessments by ergonomists, occupational therapists and vocational assessments. Dr McGrath also said that the second report was prepared fairly close to the time that she had previously seen Mr Forbes. There was also a vocational assessment of 6 August 2009 where Mr Forbes said that he could not stand for long periods and had problems with pain.

[49] Dr McGrath accepted that Dr Nutting and Dr Robinson were both talking about Mr Forbes’ endurance and the ability for that to be improved by a graduated return to work and/or conditioning, but maintained that she was still concerned about Mr Forbes’ neck problem and the cervical disc prolapses he was seeking treatment for, and that they contribute to his neck and shoulder pain and lumbar spine condition. There was a significant risk of injury and exacerbation of symptoms. Dr McGrath said that these risks would not be removed by a graduated return to work, but may possibly be reduced. However Dr McGrath maintained that previous unsuccessful attempts to return Mr Forbes to work on a graduated basis led her to conclude that it would be difficult for him to return to work as a Bus Operator.

Dr Gregory Nutting

[50] Mr Forbes attended on Dr Nutting on 25 August 2008 for an assessment of his right shoulder and recommendations for treatment. Dr Nutting prepared a report for City WorkCover dated 28 August 2008 32, noting that there was no mention of a medico legal report being required prior to Mr Forbes’ appointment and the detail sought by City WorkCover in its letter of instruction is not possible. Dr Nutting reports that Mr Forbes described the incident on 19 May 2008 when he was thrown forward while supervising another driver and grabbed a vertical bar, jarring his right shoulder. Dr Nutting also reports that this injury settled and Mr Forbes progressed well until 12 June 2008 when he was required to manually operate the bus doors, suffering pain and discomfort at the end of his shift as a result.

[51] After reporting that Mr Forbes has failed in a suitable duties program of 2½ days and has been off work for a period of six weeks, and attending physiotherapy. Dr Nutting gives the following opinion:

“Bruce Forbes is now a forty-nine year old, right handed Bus Driver who was originally seen by me with right shoulder girdle discomfort in November 2004. He has been relatively asymptomatic until an injury earlier this year, in May, when he was standing behind a bus driver he was supervising and had to grab the pole closest in an emergency when the driver braked to avoid a driver moving suddenly into the path of the bus.

He settled after this injury but then suffered an overuse type of injury pulling open and closing the front and rear doors manually on 12 June 2008 and has undergone bilateral carpal tunnel release in February 2007 and underwent extensive Physiotherapy, both in early 2007 and early 2008. It is also my understanding that he had EMG studies and Nerve Conduction Studies performed at the Princess Alexandra Hospital post surgery, which revealed there had been mild improvement in his median nerve function, but obviously his discomfort in his right upper limb is due to a number of factors, one of which is his shoulder, and apparently neck investigations have revealed disc pathology at that level.

I feel confident that Celestone and local anaesthetic injected at today’s consultation (25 August 2008) will reveal that his major pain derives from the subacromial bursa and this will give him the stimulus to stretch his posterior capsule and stabilise his shoulder blades to lessen his impingement.”

[52] On 16 June 2009 Dr Nutting provided a second report in relation to Mr Forbes in the following terms:

“To whom it may concern:

I have today examined Bruce Forbes (dob 9/4/59) and can find no basis on which he could not return to driving buses in a graduated return to work.”

[53] On 23 September 2009, Dr Nutting issued a third report in relation to Mr Forbes. In that report Dr Nutting states:

“I have been asked to provide an orthopaedic appraisal of Mr Forbes’ shoulder condition. I have been associated with his care over the period of 8.5.1996 until the present.

His most recent cause for concern, being his right shoulder, examines normally on this evaluation being 22.9.2009 and also examined normally when he attended the Q-Comp Tribunal and was examined by 3 other Orthopaedic Surgeons on 12.6.2009. Under these circumstances I am happy to suggest Mr Forbes is eminently suitable for the position of bus assistant.

In saying this I am aware that this involves parking and cleaning of buses as well as refuelling, checking oil and water and driving the bus through a bus carwash. I can see no reason on the evaluation on 22.9.2009 that Mr Forbes would not be fit to drive buses. It seems to me that it is simply a matter of conditioning and of course the conditioning and graduated return to work has failed to materialise since my last assessment of him on 16.6.2009.” 33

[54] In his evidence to the Tribunal, Dr Nutting said that he was aware in general terms that Mr Forbes had a neck complaint but had not been asked to see Mr Forbes in relation to that matter. Dr Nutting agreed that consideration of Mr Forbes’ neck complaint and disc pathology would have been within his expertise and that he had made reference to the neck in his report as a likely contribution to Mr Forbes’ condition. Dr Nutting also said that Mr Forbes had not told him that he had a diagnosed neck issue but added that the fact that he had mentioned it in his report meant that he was aware of it. Mr Forbes also made Dr Nutting aware that he had disc problems at C4/5 and C 6/7, which had been identified in a scan.

[55] Under cross-examination Dr Nutting agreed that when he offered an opinion as to Mr Forbes’ eminent suitability for positions, he was offering that opinion by reference to the state of recovery of Mr Forbes’ right shoulder. Dr Nutting also agreed that if Mr Forbes had a range of other back injuries that were contributing to his medical condition, this was not a consideration that he looked at or reported on. Mr Forbes’ disc pathology was not part of Dr Nutting’s mandate, and had only been considered in relation to the cross-over and relevance to Mr Forbes’s shoulder condition. In relation to the Bus Assistant’s role, Dr Nutting said that Mr Forbes had a written description of the job, but he could not recall actual numbers and time limits associated with various tasks required to be performed.

[56] Dr Nutting could not recall being provided with reports of an occupational therapist or other medical practitioners, and would ordinarily have recorded such reports in his notes if asked to take them into account. If it had been reported that Mr Forbes had significant pain and difficulty associated with a herniated cervical disc, or was having difficulties walking or sitting for more than one hour, Dr Nutting said that he would only have considered this insofar as it reflected on how Mr Forbes was using his shoulder, and would not have entered into the assessment as to whether Mr Forbes could do the Bus Operator or Bus Assistant role.

[57] Dr Nutting agreed that in concluding that he could see no reason why Mr Forbes would not be fit to drive buses, he was really concluding that there was no reason why Mr Forbes’ shoulder would prevent him from driving buses. In re-examination, Dr Nutting agreed that Mr Forbes had not mentioned his neck complaint in the consultation of 22 September 2009.

Evidence of Mr Forbes in relation to his injuries

[58] Mr Forbes gave evidence about the history of his work related injuries and WorkCover claims. Mr Forbes maintained that his dismissal was unfair because no proof was provided by the Council that a return to work would definitely cause him further injury and that there was no definite proof that he could not perform his duties as a Bus Operator. Further, Mr Forbes maintained that he had been ready, willing and able to perform the role of Bus Assistant since September 2009 when he had been cleared to do so by Dr Nutting. Mr Forbes also maintained that he was ready, willing and able to perform the Bus Operator role and while it is his preference to return to that role, he is amenable to doing so via a return to the Bus Assistant role.

[59] Mr Forbes said that he currently weighs 146kg and his weight has not exceeded 150kg since this issue was raised by the Council in 2005. Mr Forbes accepts that the Council’s operational requirements dictate that his weight not exceed 150kg. Mr Forbes also contended that at the time he was dismissed, he was one of four employees who were on the Council’s restricted roster due to their weight and had been on that roster since 2005, without being a significant burden on the Council. Mr Forbes also maintained that at the time of his dismissal there were four individuals including him, who were on the Council’s restricted roster due to their weight. Each of these employees had been on that roster from 2005 and the fact of them being on the roster was not a significant burden to the Council. As stated by Ms Dale in her evidence, there are 15 buses at the Carina depot and there are currently only two drivers that remain on the restricted roster.

[60] On 11 February 2010, Mr Forbes commenced employment with Bus Queensland Pty Ltd on a casual basis as a Bus Operator. Mr Forbes received a medical clearance from a general practitioner dated 9 February 2010 before commencing this role. In the course of his employment with Bus Queensland Pty Ltd Mr Forbes:

• Drives a 62 seater semi-automatic coach which is taller, longer and heavier than the Council’s vehicles;



• Works 5 shifts per week of 5 hours and 35 minutes;



• Drives the bus for approximately 5 hours of each shift;



• Refuels, cleans and maintains the bus on a daily basis;



• And receives $19.80 per hour plus a further $1.00 per day for conducting.

[61] Mr Forbes maintained that this role is more physically and mentally demanding than the role of Bus Operator or Bus Assistant with the Council. Mr Forbes also contended that the Council had blocked him from returning to work and had not complied with clauses 8 and 9 of Schedule 5 to EB6.

[62] Under cross-examination, Mr Forbes agreed that he came to work at the Council because he was unable to work as a storeman again after suffering from a back injury. Mr Forbes agreed that by November 2005 he had sustained injuries to his shoulder, wrists and back and could not work as a conductor because his back injury meant that he could not carry a coin pouch or ticketing machine. Mr Forbes also agreed that from May 2008 until April 2009 he was unable to resume full duties, and worked a maximum of 5 hours per day rather than the 8 or 9 hours required of a full time Bus Operator employed by the Council.

[63] Mr Forbes agreed that the complaints recorded by Dr Robinson, Mr Morgan and Dr McGrath were an accurate representation of what he had told them. Mr Forbes also said that when he saw Dr McGrath, his cervical disc protrusions had only just been discovered during treatment at the PA Hospital. Mr Forbes agreed that at that time he had neck and shoulder problems deriving from two different sources, with the neck causing hand problems and the shoulder causing movement problems. Mr Forbes further agreed that as a result, when he saw Mr Morgan he had been unable to drive more than a few hours a day and more than a few days a week, for some 8 months and that when he saw Dr McGrath he had not worked an 8 hour day for 15 months. Further, Mr Forbes agreed that Dr McGrath had regard to both his neck and shoulder problems in her report, and that he was still getting symptoms from his neck and back occasionally at that time.

[64] In relation to the duties required to be performed by a Bus Operator, Mr Forbes agreed that persons in that role were required to lift strollers and wheel chairs on to buses and that if the Bus Operator could not assist passengers with these things then it was possible that those passengers could not travel on the bus. Mr Forbes maintained that he could do these things, but agreed that he had been injured while lifting a stroller on to a bus, and that it was possible that he could be injured doing simple things that were part of his job. In response to the proposition that he was complaining of pain while driving during Mr Morgan’s assessment, Mr Forbes said that he told Mr Morgan that his shoulder ached, but this was not stopping him from driving. Mr Forbes agreed that he reported pain associated with shoulder movements with his arm extended and altered sensation in both hands.

[65] In relation to Dr Nutting’s reports Mr Forbes said that his neck was not giving him trouble in 2008, and that he had not known that he had a neck problem at that time as it had not been diagnosed. Mr Forbes agreed that he had reported a neck problem to Ms Pazell some 8 months before he first saw Dr Nutting. Mr Forbes also agreed that he later told Dr McGrath that he had ongoing problems of exactly the kind he had reported to Ms Pazell. Mr Forbes said that these problems seemed to come and go. Further, Mr Forbes agreed that in the examination of 23 September 2009, Dr Nutting had not been asked to evaluate the condition of his cervical spine and that Dr Nutting’s report following that examination did not address his neck, cervical or lumbar spine. Mr Forbes conceded that he may have had neck problems that he did not report to Dr Nutting in 2008.

[66] It was put to Mr Forbes that he could not do the work associated with the role of Bus Assistant. Mr Forbes said that he had done this work before and did it in his current position. Mr Forbes agreed that he cleaned one bus per shift in his current position and not 45 buses as required of Bus Assistants employed by Council. Mr Forbes also said that on the Saturday before the hearing of his application for an unfair dismissal remedy, he worked an 8½ hour bus driving shift, but agreed that this was the first time in two years he had worked a shift of this duration.

[67] Mr Forbes said that in his view there was no reason why he could not have driven a bus for 5 hours per day for the Council, as part of a suitable duties program. Mr Forbes agreed that this was not what he had been employed by the Council to do, but that it would have helped his rehabilitation. Mr Forbes also agreed that he still did not know whether he was capable of doing the hard shifts of 8 or 9 hours that he had been employed by the Council to do.

Alternatives to dismissal

Report of Ms Jacqui Rochester

[68] Ms Rochester conducted an assessment of Mr Forbes on 20 March 2010 for the purpose of ascertaining appropriate vocational direction and support for rehabilitation case management, given Mr Forbes’ educational and employment background, current circumstances, aptitudes, abilities, personality, interests and the nature of his disability or condition. Ms Rochester reports that Mr Forbes has largely accepted that he is unable to return to bus driving, although he is disappointed by this finding.

[69] Ms Rochester reports that Mr Forbes has no significant literacy or numeracy barriers for roles to which he aspired – customer contact roles and/or depot despatch roles. It is noted that if Mr Forbes is required to compile written communication of any complexity, his spelling would need to be assisted by a computer spell checker or manual dictionary. Roles for consideration are customer service, stores and warehousing operations, security patrol, courier or delivery driver, although it is noted that manual handling and vehicle operation may be an issue in some roles, due to Mr Forbes’ lower back and shoulder conditions.

[70] To facilitate Mr Forbes’ redeployment, it is recommended by Ms Rochester that he be referred to computer skills training; on the job and internal training in areas such as use of internal computer systems packages, service provision guidelines and reporting systems; and assistance with job search training including resume preparation and assistance with applications and interview skills.

[71] Ms Rochester’s assessment also indicates that perusal of the current vacancies on the Council website did not reveal any suitable vacancies at this time, but that some may emerge for consideration over the coming weeks/months. It is also noted that if Mr Forbes is able to enhance his computer skills via further training and practice, this is likely to broaden his prospects in terms of the range of positions he can apply for.

Report of Mr Peter Lofgren

[72] Mr Lofgren conducted a vocational assessment in relation to Mr Forbes, dated 6 August 2010. According to Mr Lofgren’s report, Mr Forbes has a wide range of experience and transferable skills. Mr Forbes would suit a job in which there was a requirement for working with data or facts, where there are rules and procedures to follow, a need for accuracy and precision and the requirement to take supervisory responsibility for his work. It is noted that Mr Forbes is comfortable working in jobs that require risk or pressure, but that these jobs often have physical or other strength requirements which would not match Mr Forbes’ current physical limitations. Mr Lofgren states that Mr Forbes is more comfortable with clear/set procedures to follow and not to be caught up in dealing with high level needs and issues of other people, although at occupational interest level Mr Forbes does like doing things for people which would be suitable in customer service type roles.

[73] A number of areas of possible employment are discussed, but it is noted that the local labour market across these areas indicates few current opportunities and many jobs require training and experience which Mr Forbes may lack. It is also noted that bridging training may be a suitable option. It is concluded that Mr Forbes is interested to stay with Council but is also motivated to investigate alternative options. It is also concluded that Mr Forbes is prepared to complete year 12 or other tertiary preparation and that in the short term he will need to gain computer skills.

Evidence of Ms Shirley Dale

[74] Ms Dale said that EB6 commits Council and its workforce to a “zero harm” policy. This is a cornerstone to how Council conducts its business. The decision to dismiss Mr Forbes only occurred after Council conducted extensive enquiries with a range of experts to ascertain his capacity to perform his substantive role. The evidence considered by Council indicated that Mr Forbes could not return to his substantive role and to do so would have been in breach of the “zero harm” policy and Council’s duty of care. Council investigated placing Mr Forbes in another role with its operations but was unable to identify a position for which he was suitable. In the absence of work which Mr Forbes could perform without further endangering his health, Council had no option but to terminate his services.

[75] According to Ms Dale Council devoted substantial resources attempting to return Mr Forbes to his substantive role. It became increasingly obvious that Mr Forbes’ difficulties in returning to work arose from his underlying pre-existing conditions rather than the injury which had been subject of his workers’ compensation claim, as evidenced by the postural analysis conducted by Ms Pazell on 22 February 2008. Ms Dale also said that the effectiveness of rehabilitation was also limited by Mr Forbes’ own lack of motivation and referred to a letter from Ms Jane Warner Physiotherapist 34, indicating that Mr Forbes admitted not being compliant with advice to change his posture and undertake exercise at home, and concluded that Mr Forbes would not benefit from physiotherapy until he committed to participation and lost some weight. Mr Forbes had also been enrolled by the Council in a weight loss program and had withdrawn from that program.

[76] On the basis of the conclusion in the report of Dr Robinson commissioned by City WorkCover, that it was unlikely that Mr Forbes would ever return to his substantive role as a bus driver, the Council commissioned a report from Mr Morgan which concluded that Mr Forbes should not return to bus driving. Council obtained a vocational assessment from Ms Rochester to identify alternative work for Mr Forbes. On the basis of this assessment, Council investigated the feasibility of redeploying Mr Forbes in accordance with clause 12 of EB6. Mr Forbes was only entitled to be redeployed to a position at the same level as his current position, at Band 1. There are very few positions at this level, with the only one identified by Council being that of a Library Assistant. It was concluded that Mr Forbes would not be able to perform this position because it required repetitive bending and lifting.

[77] Ms Dale received advice from a senior recruitment consultant with responsibility for the Council’s training and placement programs, to the effect that there was no suitable position for Mr Forbes at Band 1 level. Ms Dale concluded that it was highly unlikely that such a position could be found for Mr Forbes within a 6 month period as required by EB6. As Mr Forbes’ workers’ compensation claim was ceased on 7 April 2009, Council was unable to offer him any more alternative duties and a “show cause” letter was issued asking Mr Forbes to explain why his employment should continue. According to Ms Dale, the Council has spent in the area of $100,000.00 in the past two years, attempting to rehabilitate Mr Forbes so that he could return to work. This expenditure comprised wages paid to Mr Forbes while on sick leave and alternative duties, and the costs of assessments by medical and other health practitioners, as well as Mr Forbes’ participation in health programs.

[78] Under cross-examination Ms Dale said that Mr Morgan had conducted a risk assessment with respect to Mr Forbes but she was not aware that such an assessment had been conducted by any of the other medical or health practitioners who saw and reported on Mr Forbes. In relation to the vocational assessment, Ms Dale said it was directed at redeployment opportunities and indicated that Mr Forbes preferred a behind the scenes role rather than a customer service role. The risk assessment was about Mr Forbes being able to perform his substantive role as a Bus Operator. The process of assessing this risk was undertaken by Mr Morgan who conducted a task analysis.

[79] Ms Dale disagreed with the proposition that a report from February 2009 was too old in the context of considering the dismissal of Mr Forbes in October 2009, and said that based on the medical information received by the Council and the risk factors associated with Mr Forbes returning to work, it had been concluded that Mr Forbes had changed in the past and then slipped back and would not be able to return to his substantive role as a Bus Operator. Ms Dale also said that there had been dispute processes before the former Australian Industrial Relations Commission in relation to the issue of Mr Forbes returning to work, and that no other information had arisen out of that process that was sufficient for the Council to change its position.

[80] In response to a question as to why the Council was entitled to consider Mr Forbes’ neck and back complaints in deciding to dismiss him, Ms Dale said that all of Mr Forbes’ medical conditions needed to be taken into account. Ms Dale maintained that there are very few levels of positions available below Band 1, and that such positions require labouring, or in the case of a Library Assistant position, lifting books. Ms Dale also maintained that Mr Forbes was not capable of performing the role of Bus Assistant. Ms Dale agreed that a risk assessment had not been conducted in relation to Mr Forbes performing these alternative roles, but maintained that Doctors had known the requirements of these positions.

[81] In response to the proposition that Dr Nutting had cleared Mr Forbes to return to work as a Bus Operator or Bus Assistant, Ms Dale said that this was not a full clearance and that Mr Forbes had constantly come back with restricted duties or indications that he could return to work on a graduated basis. This was not accepted at the time the decision to dismiss Mr Forbes was made, because Mr Forbes had been involved in several unsuccessful attempts to make a graduated return to work in the past. It was also put to Ms Dale that it had been recommended on two occasions by Mr Forbes’ treating orthopaedic surgeon that Mr Forbes return to work on a graduated basis, and that this was simply a matter of conditioning, and that the Council had departed from this principle and deprived Mr Forbes of a graduated return. Ms Dale indicated that there were medical reports to the contrary and those had been accepted because Dr McGrath and Dr Robinson had been provided with the job and task analysis and understood Mr Forbes’ other medical conditions.

[82] Ms Dale said that she was not aware of Mr Forbes’ weight but agreed that where an employee weighed more than 130kg but less than 150kg, adjustments would be made for a reasonable period of time by rostering employees to drive a limited number of buses with seats that could accommodate them. Ms Dale maintained that Mr Forbes’ weight was a component of his medical condition and in an indication that he had not demonstrated any changes in terms of his wellbeing. Ms Dale conceded that if Mr Forbes was reinstated there would be sufficient buses to carry him if his weight was under 150kg, but maintained that it was impracticable to reinstate Mr Forbes when he could not return to his full substantive role.

Bus Assistant position

[83] Mr Forbes said that prior to his appointment with Dr Nutting in September 2009, he was advised by Council that he would be given an alternative role of Bus Assistant, and that a prerequisite for taking up that role was a medical clearance from Dr Nutting. Mr Neville accompanied Mr Forbes to a consultation with Dr Nutting on 22 September 2009, for the purpose of verbally informing Dr Nutting of the requirements of the Bus Assistant role. Mr Forbes said that he had previously performed that role as a casual employee early in his career.

[84] Mr Neville said that he had never performed the role of Bus Assistant, but was aware of the requirements of the role, having observed it being performed on thousands of occasions and represented members of the RTBU who are Bus Assistants. Mr Neville told Dr Nutting that the Bus Assistant role requires employees to refuel buses and clean their interiors, and that the role is not physically demanding. Mr Neville said that although the Bus Assistant role is not physically demanding, it is more so than the Bus Operator role.

[85] Under cross-examination, Mr Neville agreed that he had not taken any paperwork to the appointment with Dr Nutting to show him an analysis of what was involved in the Bus Assistant role. Mr Neville could not remember whether he told Dr Nutting that Bus Assistants were required to check oil and water, or the number of employees working on buses in an 8 hour shift. Mr Neville agreed that a team of 4 or 5 Bus Assistants worked on 160 or 170 buses in a shift and that it is an active job. Mr Neville also agreed that it would not be sufficient to tell Dr Nutting about the duties of a Bus Assistant without also telling him about the speed and intensity at which the work was required to be performed.

[86] Mr Neville said that Dr Nutting was not told during the consultation about matters such as that Mr Forbes had a herniated disc in his cervical spine and has had significant pain problems depending on how he moves his neck. Mr Neville said that he was led to believe that Mr Forbes only had problems with his shoulder and he was not aware that Mr Forbes had issues with his back.

[87] Mr Layt said that on an afternoon in September 2009, on a date he could not recall, he had a telephone conversation with Mr Newman who was then Council’s Human Resources Manager. According to Mr Layt, he asked Mr Newman whether Mr Forbes could return to work as a Bus Assistant if he obtained a clearance from his Doctor. Mr Layt said that he told Mr Newman that the Doctor would be informed of all of the work logistics of the garage and the requirements of the job, so that there was no misunderstanding of what Mr Forbes could and could not do.

[88] According to Mr Layt, Mr Newman said that if Mr Forbes could obtain a medical clearance from his specialist, Council would put him on in the garage as a Bus Assistant. After becoming aware that Mr Forbes had obtained a clearance from Dr Nutting, Mr Layt said that he contacted Mr Newman, and was told that Council was no longer prepared to give Mr Forbes a Bus Assistant role.

[89] Under cross-examination, Mr Layt rejected the proposition that Mr Newman agreed that he would consider any medical evidence to see whether Mr Forbes was capable of performing a Bus Assistant role. Mr Layt said he was not aware that Mr Forbes and Mr Neville asked Dr Nutting to look at only one injury – the injury to Mr Forbes’s shoulder - and to offer an opinion about whether that would stop Mr Forbes driving a bus or working as a Bus Assistant. Mr Layt agreed that if a person suffers from three medical conditions, and gets a clearance for two of those conditions, the person does not have a clearance, but could not state whether this was the case with Mr Forbes as he had not attended the examination and had not seen Dr Nutting’s report. Mr Layt was not aware that Mr Forbes had a herniated disc in his cervical spine, or that he had been undertaking physiotherapy and other significant interventions in relation to that injury.

[90] Mr Newman said that he had a note of a conversation with Mr Layt on 17 September 2009. According to Mr Newman, the appointment for Mr Forbes to see Dr Nutting had already been arranged because he noted the date of the appointment and that the RTBU would be paying the cost of the consultation. Mr Newman said that he told Mr Layt that he would consider medical evidence obtained by Mr Forbes as to his fitness for a position as a Bus Assistant, but did not give any assurance that Mr Forbes would be given this job. Mr Newman said that such an assurance would have been inappropriate and an abandonment of his responsibility on behalf of Council to ensure that no employee was subject to workplace health and safety risk. Mr Newman also said that he would have expected that any further medical evidence presented by the RTBU would be closely scrutinised to ensure that it amounted to satisfactory evidence of Mr Forbes’s fitness for work in light of other evidence before Council at that time.

[91] Ms Dale said that in her view, the role of Bus Assistant is more physically demanding than that of Bus Operator, and involves parking and cleaning of buses, refuelling, checking oil and water and driving buses through a bus wash. These tasks must be performed in a tight time frame, to ensure that buses are back on the road as soon as possible. Under cross-examination, Ms Dale said that she had not put to Mr Forbes the possibility of his returning to work as a Bus Assistant, and that this had only been raised as a last minute opportunity to keep Mr Forbes at the Carina Depot.

[92] Ms Dale said that she had never performed the role of Bus Assistant, but maintained that she had observed the role being performed. In response to the proposition that Mr Forbes had performed the role for three months, Ms Dale said that he had performed part of the role as suitable duties and had not performed the role to full capacity. Ms Dale agreed that Mr Forbes was better able to assess his ability to perform the role of Bus Assistant than she was.

[93] Mr Berghofer said in his evidence that the role of Bus Assistant is arduous and requires a reasonable level of physical fitness. Further, Mr Berghofer said that in his view the work of a Bus Assistant is more physically demanding than that of a Bus Operator. In particular, refuelling of buses must be completed within tight time frames to ensure that buses are back on the road as soon as possible. Bus Operators work as a team and to complete their tasks all team members must put in 100% effort. Mr Berghofer said that the analysis undertaken by Ms Pazell comprised an accurate description of this role. In addition, Bus Assistants are required to steam clean under buses, fit new tyres and lubricate buses. This required them to lift a large flap at the back of each bus.

[94] Under cross-examination Mr Berghofer disputed that the role of Bus Assistant is not physically demanding and said that someone who had performed the role would not necessarily be more qualified than him to make that assessment.

[95] A Functional Job Task Analysis Report in relation to the role of Bus Refueller was undertaken by Ms Pazell on 17 December 2007 and was appended to her affidavit. 35 According to the Report, that role requires work at a rapid pace to service a high volume of vehicles, including: refuelling; checking and cleaning interiors; tyre checks; mirror checks; checking oil twice a week; and organising buses for efficient deployment for next-day routes. The Report records that the task of checking oil was referred for analysis owing to staff complaining of discomfort to back, hips and shoulders after oil checks are performed, and that other complaints included contact stress and repetitive impact to knee joints as a result of staff jumping in and out of buses when inspecting and cleaning the interiors. The Report also records risk factors associated with awkward postures involving twisting of back, neck and wrists, and repetition.

The Enterprise Agreement

[96] Schedule 5, clause 8 of EB6 contains detailed provisions in relation to rehabilitation. Paid sick leave is said to be designed to support employees with the capability, intention and desire to return to work in their substantive role. The provisions set out the responsibility of Council to rehabilitate ill employees and assist them to return to work. Employees have a responsibility to co-operate in the rehabilitation process. Council has the right to refer employees to a consultant to make an assessment on the appropriateness of rehabilitation, and if appropriate, a plan is to be developed and commenced. Council’s responsibility to provide rehabilitation ceases once the employee’s injury is stable and stationary, or if medical advice indicates that the employee is no longer able to perform the inherent requirements of their substantive role.

[97] Clause 9 provides for a medical review where an employee is on paid sick leave for an extended period, that is six months from the date of the illness or injury, and the treating medical practitioner is unable to confirm a return to work with full clearance to the employee’s pre-illness role. Such a review is to be undertaken by an independent specialist at the Council’s expense or by the employee’s treating medical practitioner. The medical review is undertaken to determine the employee’s ability to return to work in some capacity; the ability to continue on paid sick leave; or eligibility for permanent disablement.

[98] If the medical review confirms the employee will be able to return to their substantive role with full medical clearance within three months from the date of review, paid sick leave and rehabilitation continues. If the employee does not return within this time frame, or if the review confirms that the employee will not be able to return, paid sick leave ceases with 14 days notice and the employee continues to participate in rehabilitation with payment for time worked in suitable duties.

SUBMISSIONS

[99] It is submitted for Mr Forbes that his dismissal was harsh, unjust or unreasonable because:

• There was no valid reason for the dismissal related to Mr Forbes’ capacity or conduct (including its effect on the safety and welfare of other employees);



• There were no discussions relating to the dismissal at which Mr Forbes could have had the opportunity to be accompanied by a support person;



• In light of the size of the Council’s enterprise it should have considered redeploying Mr Forbes elsewhere within the enterprise as an alternative to dismissal; and



• Mr Forbes was not afforded a “fair go all round”.

[100] It was also submitted that the Council prematurely finalised the employment contract 36 without a valid reason.

[101] For the Council it was submitted that in light of the whole of the medical evidence, its obligations under EB6 and workplace health and safety legislation and the lack of well founded or justified evidence that its evidence as to Mr Forbes’ fitness for work was not accurate, the Council was compelled and entitled to dismiss Mr Forbes. The Council made reasonable enquiries to find alternative work in a Band 1 position, within Mr Forbes’ limited range of skills and abilities. It was concluded that no position was likely to become available within the next six months.

[102] The whole of the independent expert evidence indicated that Mr Forbes was incapable of safely performing the inherent requirements of his role as a Bus Operator. The only other opinion was to the effect that the Doctor could find no basis as to why Mr Forbes could not return to only part of his duties followed by a gradual increase to full duties at some indeterminate time. The Council had evidence that provided a cogent basis for the opposite conclusion. On the basis of that evidence it would have been unconscionable for the Council to reintroduce Mr Forbes to the duties of a Bus Operator. It was not necessary for the Council to be satisfied that an accident would occur, but was entitled to rely on the opinions of experts and Mr Forbes’ history, in forming a view about what was likely to occur. There was no requirement for the Council to indefinitely continue the employment of an injured worker. Mr Forbes was fully notified of the reason for his dismissal and was afforded the opportunity to obtain medical opinion to support his position. Mr Forbes was represented by the RTBU at all times and filed two disputes which proceeded to conciliation in the AIRC. Further, Mr Forbes’ representations to the Council’s Chief Executive Officer were investigated and responded to.

CONCLUSIONS

Was there a valid reason for the dismissal?

[103] I am satisfied that there was a valid reason for the Council to conclude that there was a significant risk of further injury, or aggravation of Mr Forbes’ existing injuries, if he returned to work as either a Bus Operator or a Bus Assistant. Mr Forbes had a history of serious work related injury prior to commencing work with the Council. Mr Forbes was absent from a previous workplace for a period of twelve months due to a back injury and was unable to return to his employment as a store person. During his employment with the Council, Mr Forbes had a total of 7 accepted claims for workers’ compensation. Mr Forbes also sustained serious injuries in an accident while he was on annual leave. Mr Forbes had extensive periods of absence from work.

[104] At the point the Council decided to dismiss Mr Forbes, it had medical opinions from a number of sources indicating that it was unlikely that Mr Forbes would be able to return to his substantive role as a Bus Operator. Dr Robinson reached this conclusion after seeing Mr Forbes on 17 December 2008 and noting the history of his injuries and that in the six months following his most recent injury, Mr Forbes had only achieved a maximum of five hours work per day, before developing symptoms in his shoulder. Mr Morgan assessed Mr Forbes in February 2009, and after considering the injuries reported to him by Mr Forbes, concluded that he should not return to bus driving because of physical constraints that are incompatible with that role. It is notable that Mr Forbes suffered pain during a 25 minute period of driving undertaken as part of Mr Morgan’s assessment.

[105] Dr McGrath, who saw Mr Forbes in August 2009, also concluded it was unlikely that Mr Forbes could return to his substantive role without significant risk of aggravation of his right shoulder and neck condition. At the point Mr Forbes was dismissed, he had not worked an 8 hour day for some 17 months and was not capable of driving a bus for the duration of a shift. Further, Mr Forbes had experienced pain and discomfort while working for short periods of time, including while he was undergoing assessments by Ms Pazell and Mr Morgan. The Council also had an opinion from Dr McGrath that Mr Forbes’ condition was stable and would not improve in the next 12 months, and that he was not likely to be able to work more than part-time hours. The same opinion had previously been given by Dr Robinson.

[106] I prefer the evidence of Dr Robinson, Mr Morgan and Dr McGrath to that of Dr Nutting. The evidence of Dr Nutting was heavily qualified and his opinion was limited to Mr Forbes’s shoulder condition. It is apparent that Dr Nutting was not provided with the reports of other medical practitioners when he made his assessment of Mr Forbes’ capacity to return to the position of Bus Operator or Bus Assistant. It is also apparent that Mr Forbes did not report his neck and back conditions to Dr Nutting. The heavily qualified opinion given by Dr Nutting is in contrast with the opinions of the other medical practitioners, who considered all of Mr Forbes’ medical conditions.

[107] It is clear from the evidence of Mr Forbes and the reports of Ms Pazell, Dr Robinson, Mr Morgan and Dr McGrath, that Mr Forbes’ medical conditions were not limited to his shoulder.  In addition to his shoulder problems, Mr Forbes suffered disc protrusions affecting his neck and spine, symptoms in his wrists and arms, morbid obesity and diabetes.  I do not accept that when Mr Forbes saw Dr Nutting he did not know that he suffered from a neck condition or that this condition had not been diagnosed.  Mr Forbes saw Dr Nutting in August 2008, June 2009 and September 2009.  In February 2008 Mr Forbes reported to Ms Pazell that he had herniated discs; in September 2008 Mr Forbes told Dr Robinson of neck and back problems; in February 2009 Mr Morgan noted that cervical problems were likely contributing to Mr Forbes’ shoulder condition; Dr McGrath reported fully on Mr Forbes’ medical conditions including his shoulder, neck and back in August 2009. The source of the information in these reports was Mr Forbes.

[108] I also do not accept that when Mr Forbes saw Dr Nutting in September 2009 for the purposes of obtaining a medical clearance, he could have reasonably believed that the only medical condition for which he required that clearance was his shoulder.  Mr Forbes had reported neck and back issues to other medical experts who had assessed him and he did not do so to Dr Nutting. Further, Mr Forbes had felt the effects of those conditions while performing the role of Bus Operator, even in a limited capacity. Mr Forbes had also worked as a Bus Assistant when he commenced employment with the Council, and should have known that the full range of his medical conditions was relevant to a medical clearance in relation to his capacity to perform that role, in September 2009. As a result, the opinion of Dr Nutting given in September 2009, was of little, or no value, in any assessment of Mr Forbes capacity to perform the role of Bus Operator or Bus Assistant.

[109] It is notable that a number of Mr Forbes’ injuries arose out of incidents which occur in the normal course of employment of a Bus Operator - driving a bus, lifting a pram on to a bus, grabbing a bar when a driver under supervision brakes suddenly and opening doors manually when an automated mechanism fails. It is not to the point that these incidents may arise infrequently or not at all, or that mechanical failures may result from inadequate maintenance of buses. Whatever the reasons for them, mechanical failures occur and it is an inherent requirement of the position of Bus Operator that employees must be physically capable of dealing with them. Bus Operators must also be capable of assisting passengers if required by manoeuvring prams, wheelchairs and the like. I am unable to accept that Mr Forbes can do so. At the point Mr Forbes was dismissed, his incapacity was of such a nature and, on medical and/or expert evidence, was likely to continue for such a period that further performance of his future obligations as a Bus Operator would be impossible. To the extent that Mr Forbes could perform some of those obligations or perform them for a limited time, he could not do so without experiencing pain and discomfort.

[110] In the circumstances of Mr Forbes’ diagnosed medical conditions; the time he had away from work or performing alternate duties; and the resources the Council expended on rehabilitation; it is not reasonable that Mr Forbes be allowed to choose to expose himself to further pain and injury.

[111] At the time this matter was heard, Mr Forbes sought a return to work on a graduated rather than a full time basis. Dr McGrath and Dr Robinson had both provided opinions to the effect that Mr Forbes was unlikely to ever be capable of returning to full time work. Mr Forbes was employed on a full time basis, and the performance of his obligations as a Bus Operator on the limited basis he was physically capable of, or would be likely to be physically capable of, was radically different from the agreed terms of his employment.

[112] I also accept that Mr Forbes was not capable of performing the duties of a Bus Assistant. It is clear that this role is more onerous and arduous than that of Bus Operator. Further, I am satisfied that given Mr Forbes’ failure to return to work on a graduated basis on previous occasions, the Council was entitled to form a view that this would not be a viable option. I do not accept that Mr Newman gave an unqualified undertaking in relation to this matter. In reaching this conclusion I do not believe that Mr Layt was not truthful in his evidence about the discussion. Rather, I am of the view that there was a miscommunication between Mr Layt and Mr Newman. In any event, for the reasons set out above, Mr Forbes did not have an unqualified clearance from Dr Nutting in respect of his physical capabilities to undertake this role and in those circumstances the refusal on the part of the Council to allow Mr Forbes to return to work in the role of Bus Assistant, whether on a graduated basis or otherwise, does not make his dismissal unfair.

[113] I am also of the view that the Council took reasonable steps to rehabilitate Mr Forbes, and to provide him with suitable duties. In this regard, I accept the evidence that Mr Forbes was provided with access measures such as gym programs and physiotherapy. This is not a case where there was an incomplete rehabilitation process underway, or where there was medical evidence that such a process would have achieved a full return to work. It is also the case that previous attempts to return Mr Forbes to work on a graduated basis had not been successful, and had resulted in further injury to Mr Forbes. Mr Forbes does not complain about these attempts, but rather maintains that further attempts should be allowed. Given the history of the matter, I do not accept that the Council should be required to make further attempts to return Mr Forbes to work on a graduated basis. These circumstances can be contrasted with those in Lynette Hastie v Impress Australia Pty Ltd 37 where the injured employee was still undergoing a rehabilitation process, was performing duties that were of value to the employer as part of a suitable duties program, and had good prospects of improving her physical capacity to undertake the inherent requirements of her position.

[114] On balance, I accept that the Council took reasonable steps to redeploy Mr Forbes. A number of assessments were conducted in relation to Mr Forbes’ skills and suitability for other positions. While the evidence of Ms Dale overstated the conclusions in those reports about Mr Forbes’ lack of suitability for customer service positions, her evidence that there were no positions at Band 1 level, and that it was unlikely that this situation would change in the six months following the dismissal, was not challenged. I do not accept that the Council should have been required to conduct a risk analysis of alternative positions in circumstances where Mr Forbes’ physical limitations were well documented.

[115] I am also unable to accept that argument that the Council failed to comply with its obligations under EB6. The Council fulfilled its obligations to rehabilitate Mr Forbes and took reasonable steps in this regard. The Council also had a medical opinion that Mr Forbes’ injury was stationary and stable, and it obligations with respect to rehabilitation ceased at that point. There is no evidence that the Council wrongly ceased any entitlement Mr Forbes had under EB6.

[116] Accordingly I am satisfied that there was a valid reason for the Council to dismiss Mr Forbes, and that reason was related to his capacity to perform the inherent requirements of the position for which he was employed.

Notification of the reasons for dismissal

[117] Mr Forbes was notified of the reasons for his dismissal. The “show cause” letter of 26 June 2009 clearly set out the factors that the Council was considering relevant to the future of Mr Forbes’ employment and placed him on notice that dismissal was being considered.

Opportunity to respond to reasons related to capacity or conduct

[118] Mr Forbes responded to the show cause letter in writing. Other than submissions in this case, there is no evidence that Mr Forbes or the RTBU sought a meeting to discuss the show cause letter. Ms Dale’s evidence that there were a number of attempts to meet with Mr Forbes and representatives of the RTBU which were unsuccessful due to the RTBU or Mr Forbes cancelling those meetings, was not contradicted. Mr Forbes made a complaint to the Chief Executive Officer of the Council, and as a result, a review of the management of his case was conducted. Mr Forbes also brought a dispute before the AIRC in relation to his treatment by the Council. The Council stayed its hand while these processes were underway. Mr Forbes was given an opportunity to provide medical evidence to counter that which was relied on by the Council and when he provided a report from Dr Nutting, that report was considered. For the reasons set out above, the decision of the Council to prefer the reports of Dr McGrath and other medical and expert advisors, to those of Dr Nutting, was not unreasonable.

Presence of a support Person

[119] The “show cause” letter did not invite Mr Forbes to attend a meeting to discuss the matter raised therein. There is no evidence that such a discussion took place. However, at all times, Mr Forbes was represented by the RTBU. Further, proceedings were instituted in the AIRC in relation to Mr Forbes’ situation, at which he was represented by the RTBU. There is no evidence of any refusal by the Council to meet with Mr Forbes or the RTBU, or of a refusal to allow Mr Forbes a representative. Ms Dales’ evidence is to the contrary, that there were attempts to meet which were unsuccessful due to cancellation by Mr Forbes or the RTBU. In all of the circumstances I do not accept that there was an unreasonable refusal by the Council to allow Mr Forbes to have a support person.

Work Performance

[120] The dismissal did not relate to Mr Forbes’ work performance. However, Mr Forbes was warned, prior to being asked to show cause as to why his employment should not be terminated, that his continued absence from work and resultant inability to perform his role as a Bus Operator, may place his future employment in jeopardy. The show cause letter reiterated that Mr Forbes’ absenteeism level was unsustainable and was impacting on the operational requirements of the Council.

Size of the Council’s enterprise

[121] The Council is a significant enterprise and this is not a factor that warrants consideration in respect of any deficiencies in the manner in which the Council dealt with Mr Forbes. In my view the Council devoted its resources to dealing with Mr Forbes’ case in a manner that was appropriate in the case of a worker, with a long and unblemished work history, who was injured in the course of employment.

Human Resource Management Expertise

[122] The Council has significant human resource management expertise, and the absence of such expertise is not a matter that could have had any impact on the procedures followed in effecting the dismissal.

Other relevant matters

[123] In addition to those set out above, I have considered the following relevant matters. Mr Forbes had a lengthy work history, and there was no evidence of any issues with his conduct. Mr Forbes expressed a strong desire to return to the position of Bus Operator, albeit on a graduated basis. I have also considered that Mr Forbes suffered injuries in the course of his employment. However, I am unable to accept the contention that these injuries were caused by unreasonable conduct of the Council. The fact that Mr Forbes was required to assist a passenger to lift a pram on to the bus he was operating, is an incident of the work of a Bus Operator. The fact that a mechanism to open bus doors failed, and that Mr Forbes was required to open them manually, is unfortunate rather than unreasonable. In circumstances where the Council has a large fleet of buses it is not surprising that there will be mechanical failures and it is an incident of the employment of a Bus Operator that doors or hatches that are operated mechanically may have to be operated manually for a temporary period.

[124] It is notable that there is evidence of Mr Forbes being offered a voluntary redundancy on medical grounds in March 2005 and refusing that offer. Mr Forbes requested that this option be considered in his response to the “show cause” letter in 2009. Dr McGrath said in her evidence that this was not an option as Mr Forbes was suitable for redeployment. Ms Dale indicated that there were no positions into which Mr Forbes could have been redeployed as an alternative to redundancy. There was no evidence about why the option of voluntary redundancy on medical grounds was offered in 2005 and was not considered in 2009. Ms Dale was not cross-examined about the matter, and it was not pressed on behalf of Mr Forbes. In the circumstances there is no basis upon which I can make a finding that Mr Forbes’ dismissal was unfair because this option was not offered to him.

[125] I accept that Mr Forbes’ dismissal was harsh, because of the economic consequences for him. However, this factor is not sufficient to outweigh the balance of the evidence which establishes that it was reasonable for the Council to conclude that Mr Forbes would not be able to perform the inherent requirements of his position; that to return him to the role of Bus Operator or Bus Assistant would pose a significant risk of re-injury or aggravation of pre-existing injuries; and that after consideration of Mr Forbes’ physical capacity and skill levels, redeployment was not an option. Accordingly, Mr Forbes dismissal was not unfair. The application is dismissed. I Order accordingly.

COMMISSIONER

Appearances:

Mr L. Tiley and Mr D. Matters on behalf of the Applicant.

Mr A. Herbert of Counsel on behalf of the Respondent.

Hearing details:

2010.

Brisbane:

April 20; 21.

 1   Exhibit 1 “BF 9”.

 2   Exhibit 1 “BF 10”.

 3   Affidavit of Bruce Forbes - Exhibit 1; Affidavit of Bruce Forbes - Exhibit 2.

 4   Affidavit of Peter Neville – Exhibit 4.

 5   Affidavit of Michael John Layt – Exhibit 5.

 6   Affidavit of Shirley Dale – Exhibit 9.

 7   Affidavit of Therese McGrath –Exhibit 12.

 8   Affidavit of Mark Robinson –Exhibit 13.

 9   Affidavit of Glen Berghofer – Exhibit 10.

 10   Affidavit of Gregory Newman – Exhibit 11.

 11   Affidavit of Sara Pazell – Exhibit 6.

 12   Affidavit of Bruce Morgan –Exhibit 3.

 13   Affidavit of Peter Lofgren – Exhibit 6.

 14   Affidavit of Jacqui Rochester – Exhibit 8.

 15   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 16 See for example s. 170DE(1) of the Industrial Relations Act 1990.

 17 (1995) 62 IR 371.

 18   Ibid at 373; citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7.

 19   See for example the observation of Richards C (as he then was) in Breene v Jenny Craig Weight Loss Centre Pty Ltd (U2003/6811) PR943950 and a Full Bench of the AIRC in Rode v Burwood Mitsubichi (C No. 30556 of 1999) Dec 451/99 M Print R4471.

 20   (U2003/110) PR944238.

 21   Smith v Moore Paragon Ltd PR942856, 20 January 2004, Lawler VP, Kaufman SDP and Mansfield C at [48] citing Simmons Ltd v Hay (1964) 81 WN Pt 1 (NSW) 358 and Marshall v Harland & Wolff Ltd [1972] 1 WLR 899.

 22   Marshall v Harland & Wolff Ltd [1972] 1 WLR 899 at 903-904.

 23   Finch v Sayers [1976] 2 NSWLR 540 at 558.

 24   Exhibit 1 “BF 9”.

 25   Exhibit 1 “BF10”.

 26   Exhibit 1 “BF 16”.

 27   Exhibit 9 Affidavit of Shirley Dale Appendix B.

 28   Exhibit 7 Appendix B.

 29   Exhibit 3.

 30   Exhibit 12.

 31   Exhibit 1 “BF15”.

 32   Exhibit 1 Affidavit of Mr Forbes “BF4”.

 33   Exhibit 1 Statement of Bruce Forbes Appendix “BF14”.

 34   Exhibit 9 Affidavit of Shirley Dale Annexure C

 35   Exhibit 7 Appendix A.

 36   Lynette Hastie v Impress Australia Pty Ltd [2009] AIRC 358 (6 April 2009) at [109].

 37   [2009] AIRC 358 (6 April 2009)

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