Mr David Mitchell v Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group
[2011] FWA 3162
•20 MAY 2011
[2011] FWA 3162 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Mitchell
v
Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group
(U2010/12100)
DEPUTY PRESIDENT MCCARTHY | PERTH, 20 MAY 2011 |
Termination of employment.
Background
[1] Mr David Mitchell (the Applicant) was employed by Coles Supply Chain Pty Ltd T/A Coles Liquor Group (Coles) on 26 August 2004. Initially, the Applicant was employed at Coles Canning Vale Grocery Distribution Centre (Coles Canning Vale) as a Store Person and he was initially trained as a Picker. He commenced working in a clerical position around August 2005 in a relief capacity performing a mix of clerical work and "picking" (picking involves mainly the putting together of cartons by selecting them according to orders received). Over time the clerical work increased and his picking duties diminished so that the predominant duties became clerical. Picking duties became duties that were performed on a casual basis.
[2] Coles Canning Vale ceased operations in September 2008. The Applicant then worked at the Coles Liquor Distribution Centre, Kewdale (Coles Kewdale). Prior to this change, the Applicant underwent a functional capacity evaluation by a medical practitioner. Apparently any employee who had not picked in the previous six months was assessed. The Applicant says that he was offered the position at Coles Kewdale in September at a meeting with Ms Smith, the Distribution Centre Manager for Coles Kewdale. The Applicant asserts that he was not told what the job would involve other than it would be his current position and grade.
[3] The Applicant says he was transferred to that Centre at his current grade and position. The position he says he held at the Grocery Distribution Centre was as a relief Team Leader and Assistant to the Team Leader in charge of Stock Integrity. He says he also worked as an all-rounder in the office and he had been trained as a clerk prior to promotion to a Team Leader. Coles does not admit that the Applicant was engaged in a clerical role.
[4] Coles says the Applicant was offered, and he accepted, a new employment contract as a Team Member Level 2 under the Coles Liquor Distribution Centre WA Agreement 2009 (the 2009 Agreement).
[5] In March 2009, the Applicant was working subject to a return to work plan as he had injured his back. He continued working subject to a series of return to work plans until December 2009. The return to work plans involved restricted and alternative duties. In December 2009, Coles decided that they could no longer provide alternative duties for the Applicant to perform. He was directed not to attend for work. In August 2010, the Applicant’s employment was terminated by Coles as they had formed the view that the Applicant could no longer perform the inherent requirements of the job.
[6] The Applicant asserts that his employment was terminated unfairly on a number of grounds. He says that he was not given a reasonable opportunity to respond to the evidence about his capacity to perform his role and that he was willing and able to perform work for Coles within the scope of his position.
The History of the Applicant’s Classification and Functions
[7] The Applicant was a "Team Member Level 2" under the 2009Agreement. The functions within that classification of the agreement are as follows:
“An employee at this level performs work above and beyond the skills of a Team Member Level 1 and to the level of their training. Such an employee can perform tasks with general supervision, exercising limited discretion within defined procedures, and one or more of the following tasks:.
i. Is trained in and applies advanced quality/service requirements.
ii. Be seen as a safety leader when providing training to fellow Team Members
iii. Can perform a range of tasks across all areas of the Distribution Centre.
iv. Is able to provide training for fellow employees within their work area and skills limitations on skills development and workplace health and safety matters, as well as performing training duties as an accredited Train the Trainer
v. Is responsible for assuring the quality/service of their own work.
vi. Is able to exercise good interpersonal and communication skills in dealing with fellow workers
vii. Continues to be trained as required by the company
viii. Involved in complex checking duties to ensure the correct stock is being received when suppliers produce invoice for company payment
ix. Is responsible for the supervision and task allocation of duties for a team of up to 10 Team Members.
Duties that are required of this position may include checking and labelling at receiving, Input into payroll system, Inventory liaison between Supply Chain, National Office and Coles Myer brands and work with Customs and Quarantine departments.
A Team Member 2 who is an accredited trainer and provides training to another employee/s will do so for twenty (20) days per calendar year. Periods of training in excess of 20 days will attract an average bonus payment if applicable to the type of work performed.”
[8] A “Team Member Level 1” is defined as follows:
“An employee at this level performs work above and beyond the skills of a Team Member in Training and to the level of their training. Such an employee:
Can perform tasks with general supervision, exercising limited discretion within defined procedures.
i. Is trained in and applies basic quality/service requirements
ii. Has knowledge of health and safety in relation to tasks performed.
iii. Can perform a range of tasks across all areas of the Distribution Centre.
iv. Is able to provide training for fellow employees within their work area and skills limitations on skills development and workplace health and safety matters.
v. Is responsible for assuring the quality/service of their own work.
vi. Is able to exercise good interpersonal and communication skills in dealing with fellow workers.
vii. Continues to be trained as required by the company
viii. Participates in team based workplace activities as required.
Duties that are required of this position include, but are not limited to: Cleaning, Repack, stock counting, Stock selection, Stock rotation, Receipt of stock, Despatch of stock, Gift wrapping, Customer service, Consolidation of stock, Forklift operation, Truck loading and General administration and clerical tasks.”
[9] The Applicant says that from 22 September 2008 until 15 December 2009, he was an Assistant to the Team Leader in charge of Stock Integrity and he also acted as the Team Leader in charge of Stock Integrity as a Relief Team Leader. He says his duties involved working in the office and occasionally he was required to drive a forklift for checking stock integrity.
[10] In March 2009, as a result of back soreness, the Applicant was placed on a return to work plan. As part of his duties during that time the Applicant drove a forklift. In June 2009, the Applicant was involved in a safety breach while driving a forklift and as a consequence was suspended from forklift duties. The Applicant says that he then continued to perform what he regarded as his normal duties, viz: working in the office. Coles denies that the Applicant's normal duties were working in the Distribution Centre office and says that as part of the Applicant's rehabilitation from his March 2009 injury, he was provided with alternative duties which included office work during the relocation of the Distribution Centre from Canning Vale to Kewdale.
[11] From June 2009, the Applicant continued to be working subject to various return to work plans. Those plans included "trial picking" with different plans providing for picking from 200 to 500 cartons. Under the terms of the 2009 Agreement, it is clear that Coles was entitled to require that the Applicant perform picking tasks. It is also clear that Coles intended that the Applicant would be performing picking duties primarily, if not exclusively, when he was fully fit for that task.
[12] On 15 December 2009, a meeting was held in which the Applicant was advised that Coles was no longer able to provide alternative duties. The Applicant was directed not to attend for work after the meeting and had been in receipt of Workers Compensation payments at least until, and most likely after, his termination of employment.
[13] On 2 August 2010, Coles held a meeting with the Applicant. There are different accounts of what transpired during that meeting but it is not in dispute that Coles decided that the Applicant did not have the ability to perform the inherent requirements of his role and he was given notice of termination of his employment. The termination took effect on 30 August 2010.
Events Surrounding the Termination of the Applicant’s Employment
[14] There are differing accounts of what occurred at the meeting held on 2 August 2010. Indeed, initially and prior to the proceedings, there was a conflict over whether the termination of employment took effect from the date of that meeting or whether it took effect at the expiration of the notice given.
[15] I accept and prefer the evidence of Ms Smith's version of what transpired at that meeting. In particular, I accept the evidence of Ms Smith that:
“During the meeting, I advised the Applicant that:
(a) the Respondent intended to make a decision on his ongoing employement [sic] and we would be using the medical information at hand to determine our decision; and
(b) if there was any further medical information that he was aware of that had not been provided to the Respondent, to provide it.
[16] Ms Smith also stated that:
“I explained to the Applicant that he needed to be able to perform all the duties of his role as a TML2. I quoted the restraints that were listed in Dr Lucas's Report dated 15 April 2010 (ES-IO) and noted that Dr Lucas did not consider that the Applicant was likely to further improve.”
....
“I asked the Applicant on a number of occasions during the meeting if there was any medical information at all that could assist us in making the decision regarding his ongoing employment.
As the Applicant did not answer the question. I then said to the Applicant words to the effect that I had to assume he did not have any further information because you will not answer the question.”
….
“After the second break, Burgess and I returned to the meeting room. I said to the Applicant that we were considering terminating his employment based on the information we had discussed with him and asked if there was anything further that he could provide us.
The Applicant didn't answer the question.
I advised the Applicant that I was terminating his contract of employment and that we would provide 28 days notice. I then left the meeting room and typed the termination letter.”
[17] I also note that I do not regard the Applicant as having been untruthful or dishonest regarding his account of the meeting. Rather he, and his father who was present, seem to have misunderstood what occurred and not conveyed to Coles what the Applicant thought he was conveying.
Consideration
[18] Coles contend that the Applicant’s employment was terminated because he could no longer perform the inherent requirements of the job. They assert that one of the essential functions of the Applicant’s role is picking. Employees involved in picking are expected to pick between 1000 and 1200 cartons per day. Coles assert that the Applicant could not pick that many cartons and he was unlikely to be able to do this within a reasonable period of time, if ever. They relied on medical advice in support of their contentions.
[19] The Applicant contends that whilst picking formed part of his duties they were not the only duties that he could be required to perform. He appeared to be contending that he had the capacity to perform other less physical tasks encompassed within his classification. Further, he appeared to contend that other tasks could be performed in conjunction with picking duties as long as the picking duties were limited in duration on any day. Indeed the Applicant seemed optimistic that with a gradual increasing in picking duties his fitness would improve to the extent that he could eventually perform picking duties full time.
[20] A number of considerations arise in assessing these contentions, as well as the shifting attitude of the Applicant as to what he considered he could be required to do.
Firstly, picking is a role included in the classifications in the 2009 Agreement the Applicant was employed under. Coles was within its rights to require that task to be performed by the Applicant. The 2009 Agreement makes this clear by providing that an employee may be required to perform one or more tasks.
[21] The description by Coles of the reason for termination and its justification appears to me to be the Applicant’s main complaint. The Applicant, in my opinion, has some justification for that complaint. He had been, and was, competent to perform other tasks within his classification and he had good reason to believe work could be organised in such a way that he could perform a reasonable level of picking duties.
[22] Coles had involved the Applicant in return to work plans in an endeavour to place him on picking duties full time but had medical advice that it would not be achievable. I accept the evidence Coles provided regarding this and that it establishes Coles' contentions in that regard.
[23] In my view, the reason for the termination was that Coles wished to organise its operations whereby any employee under the classification that the Applicant was employed under could be required to pick for extended periods of time and the Applicant was not able to be safely allocated work in conformity with that intention.
[24] I find that Coles did have a valid reason for the termination of the Applicant's employment.
[25] The notification of the termination occurred at a meeting on 2 August 2010.
[26] It appears to me that at the meeting conducted on 2 August 2010, that the Applicant became confused, uncooperative, obstructive or all of those. Rather than give notice of termination of the Applicant’s employment at that time Coles could have, and in my view should have, arranged a further meeting with the Applicant. The urgency to make and implement a decision to dismiss the Applicant at that meeting does not seem to me to be an appropriate manner in which to consider, make and notify such a decision.
[27] The Applicant wrote to Coles on 6 August 2010 raising issues he had concerns about in the medical reports of Dr Lucas of 15 April and 27 May 2010. The concerns mainly relate to some inaccuracies in the reports but also interpretation of those reports. The Applicant concluded the letter by indicating he would be filing an application for unfair dismissal remedy and requesting that Coles withdraw the notice of termination of employment.
[28] However, despite the concluding tone of the letter it was clear that the Applicant wished his employment to continue, albeit in work that he considered he should be engaged performing rather than picking. Importantly, he thought he had grounds to challenge the conclusions Coles had made arising from Dr Lucas’ medical reports. The Applicant, in my view, misinterpreted the essential aspects of those reports, but he had reasonable grounds to raise his concerns.
[29] Coles chose not to respond to the letter of 6 August apparently because they had formed the view that all that the letter did was to ask Coles to reconsider its decision but that no further medical evidence was provided. It appears to me that Coles had also erroneously formed the view that the Applicant’s employment ended on 2 August and that influenced the approach they took to the letter of the Applicant of 6 August.
[30] Notwithstanding the Applicant’s flawed interpretation of the reports, in my view a prudent human resources approach would have been for Coles to meet again with the Applicant or at the very least respond to his letter. Coles chose to do neither. Coles is a large enterprise and has dedicated human resource expertise. It was not beyond their capacity or expertise for them to respond and it would have not only been reasonable but appropriate for them to do so. In making those observations I am conscious that it can be a very frustrating experience to converse with the Applicant and be able to convey to him what it is that is being addressed and requested of him. During proceedings, he displayed a propensity to divert matters into issues he wants to pursue, rather than concentrating on the issue at hand.
[31] I find that the Applicant was notified of the reason for termination and he was given an opportunity to respond, but when the sequence of events and meetings is considered in its entirely, it is an unsatisfactory manner for an employer of Coles’ size and the dedicated Human Resources expertise that was available to Coles.
Conclusion
[32] Considering all of the above I find that the termination was harsh, unjust or unreasonable.
[33] In respect of remedy I request that the parties have discussions with the aim of agreeing on the terms of a remedy. The Applicant should advise me within two weeks of the date of this decision if agreement has not been reached, if he wishes me to decide the remedy and issue an order in respect of it.
DEPUTY PRESIDENT
Appearances:
Mr M Mitchell on his own behalf.
Mr D Pearson for Coles.
Hearing details:
2011.
Perth:
February, 24; March 17.
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