Mr Thanarooban Thanabalasingham v Swan Transit Services Pty Ltd
[2023] FWC 61
•13 JANUARY 2023
| [2023] FWC 61 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Thanarooban Thanabalasingham
v
Swan Transit Services Pty Ltd
(U2022/8203)
| DEPUTY PRESIDENT BINET | PERTH, 13 JANUARY 2023 |
Application for an unfair dismissal remedy
On 9 August 2022, Mr Thanarooban Thanabalasingham (Mr Thanabalasingham) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). Mr Thanabalasingham alleges he was unfairly dismissed by Swan Transit Services Pty Ltd (Swan Transit) and seeks a remedy of reinstatement.
On 28 August 2022, Swan Transit filed a Form F3 - Employer Response to an unfair dismissal application (Form F3) denying that Mr Thanabalasingham had been dismissed from his employment (Jurisdictional Objection).
On 22 September 2022 and 24 October 2022 the parties participated in conciliation conferences, but the issues in dispute could not be resolved. The Jurisdiction Objection was discussed in depth at the conferences. Mr Thanabalasingham and his legal representative were counselled that proceeding with an Application in circumstances where the Application has no reasonable prospect of success might result in a successful application for costs being brought against Mr Thanabalasingham and/or his legal representative.
On 2 November 2022 Swan Transit applied for the Application to be dismissed pursuant to section 587(1)(c) of the FW Act on the grounds that the Application had no reasonable prospect of success (Dismissal Application).
Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Dismissal Application. Consequently, the Dismissal Application was listed for a hearing in Perth on 11 January 2022 (Hearing).
Directions for the filing of materials in advance of the Hearing were issued to the parties on 27 October 2022 (Directions).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to Mr Thanabalasingham to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, Mr Thanabalasingham was represented by Mr Sivan Jayakody of Sivan Legal Lawyers (Mr Jayakody). Mr Simon Clayer (Mr Clayer), in house counsel for Swan Transit, appeared on behalf of Swan Transit.
Evidence
The Directions required the parties to file their witness and documentary evidence in advance of the Hearing. Mr Thanabalasingham filed a witness statement on his own behalf, gave oral evidence at the Hearing and was cross examined by Mr Clayer.
Witness statements from the following witnesses were filed by Swan Transit:
a.Mr Daljit Bains (Mr Bains) – Mr Bains is the Area Manager for Southern River and responsible for managing the Southern River Depot.[2]
b.Mr Damon J Hancey (Mr Hancey) – Mr Hancey is the Operations Manager for the Southern River Depot. He has been responsible for managing Mr Thanabalasingham’ s day to day work activities since December 2021.[3]
c.Ms Beth Sissing (Ms Sissing) – Ms Sissing is the People and Culture Manager for Swan Transit.[4]
Mr Bains was cross examined by Mr Jayakody. Swan Transit’s other witnesses were not required for cross examination.
In accordance with the Directions a Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as Exhibit DCB at the Hearing.
In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
Background
Swan Transit provides public transport services in Western Australia.
Mr Thanabalasingham commenced employment with Swan Transit as a bus driver in November 2009 pursuant to an offer of employment dated 3 November 2009.[5]
Mr Thanabalasingham was involved in an incident on the 4 October 2020. As a result he developed a psychiatric injury and was unable to continue carry out his duties as bus driver.[6]
Mr Thanabalasingham submitted a workers compensation claim in relation to the incident which was accepted on the 3 November 2020. Mr Thanabalasingham received workers compensation payments commencing 4 October 2020 as he was, and continues to be, deemed unfit for bus driving duties.[7]
Swan Transit’s injury management provider Aurenda Injury Management (Aurenda) arranged for the rehabilitation provider Star Injury Management (Star) to develop a Return-to-Work Program (RTWP) to facilitate Mr Thanabalasingham’s return to his pre injury duties of bus driving.[8]
Star completed an initial workplace assessment on 2 November 2022. At the time of initial assessment, Mr Thanabalasingham was certified as fit for 4 hours per day, 5 days a week of alternative duties. Star developed a graduated RTWP which was revised throughout the rehabilitation process, and as medically required.[9]
The first RTWP stated the workplace rehabilitation goal was to assist Mr Thanabalasingham return to work as a bus driver with Swan Transit, on a full-time basis of 38 hours per week, by August 2021.[10]
Subsequent RTWPs amended the workplace rehabilitation goal to:[11]
“… assist [Mr Thanabalsingham] to return to work with a new employer undertaking new duties, on a full-time basis of 38 hours per week, by March 2022”
The time frame for a return to full time work was later changed to June 2022.
The duties contemplated by the RTWP included:[12]
a.Updating driver assist books,
b.Performing training
c.Conducting fleet and depot checks,
d.Light cleaning
e.Revenue counting,
f.Other administration duties as required.
g.Driving buses with no passengers within the Depot for refuelling.
The RTWP stated that Star would monitor the program by telephone and worksite visits as considered necessary.[13]
Copies of each amended RTWP was sent to Mr Thanabalasingham and his General Practitioner, Doctor Veeraputhran.[14]
Contractors to Star conducted a vocational assessment of Mr Thanabalasingham on 9 April 2021 under the RTWP (Vocational Assessment Report). The Vocational Assessment Report identified the following job roles: [15]
a.Bus / Coach Driving Instructor
b.Accounts Clerk / Bookkeeper
c.Assistant Real Estate Property Manager; and potentially
d.Control Room or Mobile Patrol Security Officer
e.Trainee Shire / Council Ranger
Swan Transit did not offer and could not offer Mr Thanabalasingham any of these roles as it did not have any vacancies or suitable positions available. In accordance with the RTWP, the Applicant provided the Respondent with suitable alternate duties it had available at its Southern River Depot.
In accordance with the graduated Return-to-Work program approved by Workcover WA Swan Transit allocated Mr Thanabalasingham alternative duties from 2 November 2020 at the Southern River Depot. The duties allocated to Mr Thanabalasingham were taken from other full time employees and included tasks such as:[16]
a.Updating driver’s work books
b.Checking depot perimeters for security and car permits.
c.Depot cleaning.
d.Driving to other Depots to collect drivers or to shops to purchase items required at the Depot.
e.Conducting oil checks on buses.
The tasks performed varied from day to day and no two days duties were the same.[17]
According to Swan Transit Mr Thanabalasingham did not perform the duties of a trades assistance or mechanic because he was not suitably qualified or experience.[18]
The injury management plan was terminated after 82 weeks when Swan Transit’s insurer reached the conclusion that discontinuance of the RTWP would reduce the risk of Mr Thanbalasingham suffering further injury.[19]
On 19 July 2022 Ms Liz Cohalan, Injury Management Team Manager with Aurenda sent Mr Bains an email informing him that it had been agreed at the insurer’s Injury Management Conciliation Conference on 12 July 2022, that Mr Thanabalasingham’s alternative duties should be withdrawn as his Return-to-Work program had ended.[20]
On 20 July 2022, Mr Bains and Southern River Depot Operational Manager Mr Damon Hancey met with Mr Thanabalasingham to advise him that there were no further alternative duties in the Depot (20 July Meeting). During this meeting, Mr Thanabalasingham was specifically told that:[21]
a.he was still employed with Swan Transit;
b.his name would remain on the roster
a.he would continue to receive weekly workers compensation payments; and
b.Swan Transit would inform him if any alternative duties became available for him to perform.
Although the RTWP ended Mr Thanabalasingham remained on workers compensation continuing to receive weekly payments.[22]
Mr Thanabalasingham remained on the bus driver roster and retained possession of his uniform, airkeys and RFID equipment.[23]
Following the meeting on 20 July 2022 the Mr Thanabalasingham’s lawyer sent a letter to Swan Transit seeking clarification as to whether Mr Thanabalasingham’s employment had been terminated.[24]
On 22 July 2022 Mr Daniel Costanzo, a partner in Swan Transit’s workers compensation insurance lawyers, Moray & Agnew, responded by email stating that:[25]
“I am instructed that, whilst your client’s employment has not been terminated, the employer is unable to accommodate the duties which he has been performing as part of his rehabilitation/return to work programme on an ongoing basis.”
On the 4 August 2022, Swan Transit’s workers compensation insurance lawyers (Moray & Agnew) sent a letter to Mr Thanabalasingham’s lawyer stating:[26]
“2. Further to the email from our Daniel Costanzo on 22 July 2022, we confirm that we are
instructed as follows:(a) your client’s employment has not been terminated;
(b) rather, the employer is unable to accommodate the duties which your client has been performing as part of his rehabilitation/return to work programme on an ongoing basis”.
Notwithstanding this correspondence on 9 August 2022 Mr Thanabalasingham filed the Application. Mr Thanabalasingham seeks an order for reinstatement.[27]
On 10 October 2022 Swan Transit sent a letter to Mr Thanabalasingham via his lawyer advising Mr Thanabalasingham of its intention to terminate his employment under Section 84AA of the Workers’ Compensation and injury Management Act 1981 as Swan Transit had no suitable duties for him to perform and as he is unable to carry out the inherent duties of his position as a bus driver.[28]
On 1 November 2022 Swan Transit sent a letter to Mr Thanabalasingham’s lawyer confirming that Mr Thanabalasingham’s employment had been terminated on the grounds that Mr Thanabalasingham was unable to carry out the inherent duties of his role as a bus driver (Letter of Termination).
Consideration
An order for reinstatement or compensation may only be made if Mr Thanabalasingham was unfairly dismissed and Mr Thanabalasingham was protected from unfair dismissal at the time of his dismissal.
Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a.the person has been dismissed;
b.the dismissal was harsh, unjust or unreasonable;
c.the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d.the dismissal was not a case of genuine redundancy.
The term ‘dismissed’ is defined in section 386 as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Sub section 386(2) contains some exceptions which are not applicable to this Application.
Mr Thanabalasingham submits that he was employed by Swan Transit as a maintenance worker from November 2020 until 20 July 2022 and that his employment was terminated at the 20 July Meeting when he was informed that the duties he had been performing had been removed.
Swan Transit submit the Application made by Mr Thanabalasingham has no reasonable prospects of success because there has been no dismissal.
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[29] There is no evidence that at any time prior to the date the Application was filed that Mr Thanabalasingham was notified that his employment was being or had been terminated.
This is consistent with the Form F2 - Unfair Dismissal Application filed by Mr Thanabalasingham on 9 August 2022 where he stated at Question 3.1:[30]
“I was advised that the work I was doing is no longer aviaablbe and requested not to attend work any more from the 20 July 2022. No other explanation provided and no letter of dismisa also provided.”
In fact, Swan Transit and its legal representatives reaffirmed orally and in writing on multiple occasions prior to the date the Application was filed that Mr Thanabalasingham remained employed by Swan Transit. Swan Transit again reaffirmed this in its Form F3.[31]
Until 1 November 2023 Mr Thanabalasingham remained on the Swan Transit payroll records and roster as a bus driver albeit he was unable to perform his duties as a bus driver. Mr Thanabalasingham continued to receive workers compensation payments. The fact that an employer can not or does not provide suitable duties for an employee for a period of time does not preclude the employment relationship continuing.[32]
The evidence is that the duties performed by Mr Thanabalasingham were removed from other employees to create meaningful work for him to perform on a temporary basis while he undertook the RTWP with the ultimate goal of initially returned to his substantive role as a bus driver or subsequently to secure employment in one of the vocations identified in the Vocation Assessment. This is consistent with the type of duties Mr Thanabalasingham performed, the evidence that the duties he performed varied and the evidence that the duties were not fixed. The provision of alternative duties in accordance with the Return to Work Program did not create a new position or constitute an offer of employment to a new position.
Mr Thanabalasingham has produced no evidence that the duties he performed align with any existing job description or role in the Swan Transit organisational structure or that such a role had or needed to be created. The evidence is that Swan Transit use qualified mechanics undertake maintenance work and that Mr Thanabalasingham is not qualified as a mechanic.
Similarly, he has provided no evidence of a new employment contract or letter of appointment to a new role.
Mr Thanabalasingham asserts that his duties were not part of a RTWP because he was supervised by employees of Swan Transit when performing these tasks not a rehabilitation provider and because the RTWP extended beyond a few weeks or months.[33] This submission reveals a lack of understanding of the workers compensation scheme and the role of rehabilitation providers and RTWPs.
Mr Thanabalasingham also asserts in his witness statement that the duties were not part of a RTWP because he says that:[34]
“I was never advised that the duties I undertook for my employer were part of any rehabilitation/return to work programme.”
This assertion is clearly false. A matter which Mr Thanabalasingham ultimately conceded in cross examination. The evidence is that Mr Thanabalasingham and his general practitioner were sent copies of each version of the RTWP.[35]
Mr Thanabalasingham’s own submissions that the rehabilitation provider was focused on him returning to work as a bus driver and that his medical reviews focused on whether he was fit to return to work as a bus driver is consistent with the duties he performed from 2 November 2020 to 20 July 2022 as being temporary and genuinely part of a program intended to see him return to work as a bus driver.[36]
The letter sent by Swan Transit to Mr Thanabalasingham via his lawyer dated 10 October 2022 advising of its intention to terminate his employment under Section 84AA of the Workers’ Compensation and injury Management Act 1981 and the Letter of Termination corroborate Swan Transits evidence that it did not terminate Mr Thanabalasingham’s employment prior to the date the Application was filed.
In Mihajlovic v Lifeline Macarthur[37] the Full Bench of the Fair Work Commission found that an application which is filed prematurely should be considered to be an application which was not made in accordance with s.394(1) of the FW Act.
In all the circumstances I am not satisfied that Mr Thanabalasingham was dismissed for the purposes of section 385 of the FW Act at the time he lodged the Application. He is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act.
In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. Swan Transit’ jurisdictional objection to the Application is upheld and the Application is dismissed pursuant to section 587 of the FW Act.
Accordingly, an order[38] dismissing the Application will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr S Jayakody, for the Applicant.
Mr S Clayer, for the Respondent.
Hearing details:
2023
PERTH
11 January
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 74-75.
[3] Ibid 82.
[4] Ibid 95-96.
[5] Ibid 36-38.
[6] Ibid 409.
[7] Ibid 407.
[8] Ibid 74.
[9] Ibid 407, 39.
[10] Ibid 39.
[11] Ibid 49.
[12] Ibid 40.
[13] Ibid 43.
[14] Ibid 27, 42, 44, 47, 52.
[15] Ibid 60-73.
[16] Ibid 74, 82.
[17] Ibid 82.
[18] Ibid 74.
[19] Ibid 96.
[20] Ibid 74-75.
[21] Ibid 74-75, 82.
[22] Ibid 82.
[23] Ibid 82, 87.
[24] Ibid 83.
[25] Ibid 84.
[26] Ibid 85-86.
[27] Ibid 26.
[28] Ibid 89.
[29] Burns v Aboriginal Legal Service of Western Australia (Inc) AIRCFB 21 November 2000, Print T3496 at para. 24.
[30] DCB above (n 3) ,6.
[31] Ibid 18-19.
[32] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at para. 75.
[33] DCB above (n 3) 409-410.
[34] Ibid 409.
[35] Ibid 27.
[36] Ibid 409-410.
[37] [2014] FWCFB 1070.
[38] Print PR749655.
Printed by authority of the Commonwealth Government Printer
<PR749513>
0
3
0