Mr Wayne David Shortland v The Smiths Snackfood Co

[2011] FWA 88

Note: An appeal pursuant to s.604 (C2011/3142) was lodged against this decision - refer to Full Bench decision dated 29 April 2011 [[2011] FWAFB 2303] for result of appeal.

[2011] FWA 88

FAIR WORK AUSTRALIA

DECISION

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

Mr Wayne David Shortland
v
The Smiths Snackfood Co
(U2010/5459)

COMMISSIONER WILLIAMS PERTH, 7 JANUARY 2011

Application for unfair dismissal remedy.

[1] This matter involves an application made by Mr Wayne Shortland (the Applicant) on 25 January 2010 under section 394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed from his employment by The Smith's Snack Food Co Ltd (the Respondent).

[2] This application has already been the subject of a decision of Commissioner Cloghan with regard to preliminary objections of the respondent, PR997197, and a subsequent appeal to, and decision of a Full Bench of Fair Work Australia [2010] FWA FB 5709. The Full Bench decision upheld the appeal by Mr Shortland and referred the application for arbitration.

[3] This decision deals with the arbitration of the substantive application.

Introduction

[4] Mr Shortland was employed by the respondent as a packer. He was engaged as a casual and first worked for the respondent in July 2006.

[5] Around April 2009 the applicant experienced soreness in his arms and in June 2009 lodged a worker’s compensation claim with the respondent. In September 2009 the applicant was advised that his workers compensation claim had been denied by the respondents insurer.

[6] For a period the respondent provided alternative duties for the applicant however this ceased on 22 September 2009 and the applicant has not worked since that date.

[7] By letter dated 11 January 2010 the respondent advised Mr Shortland that because he had been absent from work on unpaid leave for an extended period, in excess of three months, and because there was no prospect of a return to work in the foreseeable future his employment was terminated.

The hearing

[8] At the hearing of this matter the applicant was self represented and the respondent was represented by Mr Van de Hoef.

[9] The applicant gave evidence on his own behalf.

[10] Evidence for the respondent was given by Ms Taraborrelli who is employed as the respondent's Occupational Health and Safety Manager and Mr McGhee who is employed as the respondent's Human Resource Manager for Western Australia.

The applicants submissions

[11] Mr Shortland made oral submissions and provided a written outline of submissions for these proceedings. He also relies on the written materials he provided in the prior proceedings before Commissioner Cloghan. The materials in those proceedings were identified as Exhibits A 1, 2 ,3 and 4. These materials have been identified with the same exhibit numbers for the current proceedings.

[12] Some of Mr Shortland's written submissions in the prior proceedings were made in response to the jurisdictional objections and other preliminary matters being considered by Commissioner Cloghan at that time and so are not relevant to the question of whether his dismissal was unfair.

[13] Relevantly Mr Shortland submits that his dismissal was unfair because the company said at induction that they have many policies and procedures that protect their employees from being treated unfairly which was a big factor in Mr Shortland's decision to work with the respondent. Mr Shortland asserts that the company's actions generally are in breach of the respondents code of conduct.

[14] Mr Shortland submits that a report of a medical assessment by a Dr Silbert is inadmissible because he did not consent to it being created and used for the purposes for which it has now been used by the respondent.

[15] Mr Shortland says the respondent is wrong to say that the tasks he carried out were limited to packing because he says he had worked as a potato loader on the forklift. Mr Shortland submits that whilst conceding he had some limitations in the movements he could do because of his arm soreness the company should have been able to rearrange his duties so that he could continue working. He also submits it was unfair to put someone off when the respondent was employing more casuals for the roles in which he was qualified for and had the capacity to undertake.

[16] I note that some of the applicant submissions and some of his evidence are about events that occurred much earlier than the critical events in this case which arose in early to mid 2009. In some instances these submissions and evidence dealt with events in 2007 and 2008 which whilst providing some background to later events, do not appear to be materially linked to the central issues relevant to this application.

The respondent submissions

[17] The respondent says that Mr Shortland was employed on a casual basis to undertake a range of duties involving manual tasks.

[18] Mr Shortland advised in June 2009 that he had incurred an injury and could not carry out many of the tasks required in his role. Consequently the respondent arranged alternative duties for him while the injury was assessed as to whether it was work related or not.

[19] A medical assessment of Mr Shortland was conducted on 31 July 2009 by a consultant occupational physician Dr Silbert. That report indicated that Mr Shortland presented with ongoing pain and dysfunction which meant he was not able to undertake his pre-accident duties on an unrestricted basis and that Mr Shortland would have restrictions on the nature and extent of his manual dexterity and capacity to maintain a frequency or pace of work.

[20] The conclusion of Dr Silbert was that on balance Mr Shortlands condition was not work-related. Consequently the respondents insurer rejected Mr Shortlands workers compensation claim.

[21] On 22 September 2009 the production manager and shift supervisor discussed with Mr Shortland that the respondent was concerned about further exacerbation of his injuries and the possible development of new injuries if he continued to work. Mr Shortland was further advised that due to do the risk to himself and that alternative duties would no longer be available the respondent could no longer offer him work.

[22] In this discussion it was stressed that the applicant was not terminated and that he would be offered work when he was declared fully fit.

[23] He was asked to keep in regular contact with the respondent and provide updates on his condition. The discussion of this meeting was confirmed to Mr Shortland in a letter given to him the same day.

[24] On 30 September 2009 Mr Shortland provided the respondent with a medical progress certificate and this was the final update on his health that he provided to the respondent.

[25] In October 2009 Mr Shortland lodged a claim for unfair dismissal with Fair Work Australia and he was represented by the National Union of Workers. Following a conference, during which the matter was not resolved, the application was discontinued as it had become clear that Mr Shortland had not been dismissed.

[26] In late November or early December a representative of the National Union of Workers acting on behalf of Mr Shortland met with the respondent's Human Resources Manager Mr McGhee and discussed the possibility that alternative duties would again be offered to the applicant. Mr McGhee explained that this was not possible and why this was the case.

[27] In early January 2010 the respondent reviewed the situation and decided that given the lack of contact from the applicant and the passage of time since the applicant had first identified to the respondent his injury it was now appropriate to terminate his employment and this was carried out by letter dated 11 January 2010.

[28] The respondent submits that there was a valid reason for termination of employment being that the applicant was incapable of performing the role for which he was employed.

[29] The applicant was notified by the respondent and fully aware prior to ceasing work on 22 September 2009 that he could not resume work unless he was fully fit.

[30] The applicant had almost 4 months between ceasing work and termination of his employment to advise the respondent if he regained the capacity to perform his role but did not do so.

[31] The applicant twice had recourse to a support person in a National Union of Workers representative.

[32] In the circumstances the decision of the respondent to terminate was not harsh unjust or reasonable.

Evidence and findings

[33] Much of the evidence is not in dispute between the parties.

[34] It is clear that Mr Shortland was first engaged and continued to be engaged as a casual employee. His job predominantly involved packing product plus some other tasks and at various times also involved forklift driving.

[35] The evidence of Ms Taraborrelli is that Mr Shortland provided a first medical certificate dated 3 June 2009 which described the problem Mr Shortland had as being a repetitive strain injury of both thumbs. The certificates placed him on restricted duties and specified limits on lifting and to avoid repetitive use of the affected body parts.

[36] She explained she met with the applicant on 22 June 2009 and they discussed the history of onset of his pain and the restrictions that were applied by his medical practitioner and what type of duties would be available. Following this meeting a graduated return to work programme was developed and forwarded to Mr Shortland's general practitioner whom approved this on 24 June 2009.

[37] Her evidence was that based on the restrictions applied by the general practitioner Mr Shortland was only able to perform a portion of the full duties associated with his packer role. He was able to perform some packing duties and light cleaning but was not able to undertake, monopac, dexion, potato inspection and general cleaning duties such as emptying bins. She says the general practitioner approved for Mr Shortland to undertake potato inspection however Mr Shortland reported to his supervisor that he was uncomfortable with attempting this task and so he was not required to do this. Over the period the alternative duties were provided she says there were three or four calls made to the general practitioner to clarify the work restrictions.

[38] Her evidence was that in order to accommodate this graduated return to work programme an extra employee was required to be rostered on the same shift as Mr Shortland to allow him to undertake the limited tasks he was able to perform.

[39] Ms Taraborrelli says that on 31 July 2009 Mr Shortland was requested to attend an independent medical review by Dr Silbert to assist in determining liability for the workers compensation claim he had made. Dr Silbert concluded in his report that the symptoms Mr Shortland was experiencing were not consistent with the typical presentation of work related repetitive strain injury and he diagnosed non-specific biomechanical bilateral thumb pain. As a result liability for Mr Shortland's workers compensation claim was declined on 3 September 2009.

[40] With respect to Mr Shortland objections to the medical report provided by Dr Silbert. 1 This OH and S report, as Mr Shortland has referred to it, followed a consultation Dr Silbert had with Mr Shortland. Mr Shortland complains that Dr Silbert's report goes beyond what he was authorised to deal with. Mr Shortland's argument is that the doctor was only authorised to report on the medical issues and the report should not have reported on issues such as what activities Mr Shortland was involved in outside of work such as bicycle riding.2

[41] This complaint Mr Shortland has about Dr Silbert's relates to a few sentences in what is a lengthy and comprehensive document. Much of Dr Silbert's report involves recounting the explanations Mr Shortland gave to the doctor regarding his condition. The reference to bike riding by Dr Silbert is in the context of the doctor recounting Mr Shortland's answers to questions regarding the activities Mr Shortland commonly undertakes outside of work. Self-evidently such questions by an examining doctor would be routine ones as part of an attempt to identify whether there are any non-work-related activities that a person is involved in that may have some bearing on the persons symptoms. I can see no basis to view the doctors recounting of these matters as in any way improper nor do I accept the references to bike riding in some way impugns Dr Silbert's report as Mr Shortland argues.

[42] Further to Mr Shortland's complaint regarding Dr Silbert's report is a statutory declaration included in exhibit A 4 that was sworn by Mr Shortland on 16 September 2009. I note that the consultation with Dr Silbert was on 31 July 2009. Mr Shortland swears that the report is not an accurate record of the “ interview”. Mr Shortland swears in his statutory declaration that what occurred was a “ ... five-minute interview..” . However doubt is cast on the correctness of this statement because later in his statutory declaration Mr Shortland goes on to say that “'...as he was still busy for the first 10 minutes, then the next 30 to 40 minutes was defending his integrity as an independent uncoersible (sic) doctor ...” .

[43] In addition this statement by Mr Shortland as to the brevity of the examination by Dr Silbert is not consistent with the fact that the report contains 3 1/2 detailed pages of information Dr Silbert has provided covering the history Mr Shortland related to him during the consultation regarding his arm soreness. The detail covers his current symptoms, his current treatments, his past medical history, his social and occupational history and what examinations were carried out by Dr Silbert. The suggestion that all of this detailed information resulted from a five-minute consultation with the doctor on balance is not believable. Rather the amount of detail in the report is consistent with Dr Silbert’s statement on page 5 of the report that the consultation took one hour.

[44] Mr Shortland has not provided any cogent reason as to why Dr Silbert's report should not be accepted for what it is. The report is a detailed explanation of the consultation and examination by Dr Silbert of Mr Shortland and a consequential statement of medical opinion by the doctor who has examined Mr Shortland.

[45] Having considered Mr Shortlands evidence and submissions I find that the report of Dr Silbert should be considered by the tribunal in this matter and on balance I find that the assessments and opinions of Dr Silbert contained in his report are to be accepted.

[46] Consequently I accept the assessment of Dr Silbert that that there was insufficient evidence to support an assertion that Mr Shortland's symptoms were work-related 3, that there was no evidence to support a diagnosis of occupational overuse syndrome4 and that Mr Shortland was restricted from undertaking his pre-accident duties on an unrestricted basis and will have restriction on the nature and extent of his manual dexterity and capacity to maintain a frequency or pace of work.5

[47] Mr Shortland's family general practitioner, Dr Khan also conducted several reviews of the applicant. From each of these a progress medical certificate was provided to the respondent, all of which advised of the applicants symptoms continuing and, with some variation, that the work restrictions were ongoing. Dr Silbert's assessment of the restrictions caused by Mr Shortland's symptoms is consistent with these progress medical certificates from Dr Khan which through to the end of September 2009 continued to state that Mr Shortland was subject to work restrictions to at least the middle of November 2009.

[48] Dr Khan did include a diagnosis simply identified as “RSI” but without any further detail as to any of the relevant issues that were explored by Dr Silbert in his report. It might be suggested that Dr Khan's diagnosis of RSI is different to that of Dr Silbert’s however Dr Khan's reference to RSI is not expanded upon and does not of course necessarily involve a conclusion that this was due to occupational overuse. Dr Silbert in his detailed report specifically concluded there was not sufficient evidence to support a diagnosis of occupational overuse. There is no conflict between Dr Khans diagnosis and Dr Silberts. If it was necessary to choose between the two doctors positions my decision is to accept the assessment of Dr Silbert because Dr Silbert's detailed report extensively considered the possibility of occupational overuse before reaching his assessment that this was not on the balance of the evidence the cause of Mr Shortland's symptoms. Further Dr Silbert's conclusions are to be preferred given he is practising as a consultant occupational physician rather than as a general practitioner.

[49] Mr Shortland in exhibit A4 has provided copies of a number of medical certificates from Dr Khan. Ms Taraborrelli’s evidence was she understood the information being provided by Mr Dr Khan via the medical certificates was that until 28 September 2009 Mr Shortland was subject to a lifting restriction of nothing heavier than 2 kg but that on 30 September 2030 the final progress medical certificate received changed this restriction to lifting nothing heavier than 5 kg. Her evidence was that this change had no effect on the return to work programme because the general cleaning and dexion duties required of a packer involved a lifting capacity of up to 10 kg.

[50] Mr Shortland cross-examined Ms Taraborrelli to the effect that the lifting restrictions set by his doctor of 2 kg and then 5 kg were references to the amount of weight that could be lifted with each hand, effectively arguing that these restrictions were double the nominal weights stated in the progress medical certificates. Ms Taraborrelli did not accept this view that the reference to 2 kg and then 5 kg was to be interpreted as being “per hand”.

[51] Having considered this issue and reviewing the progress medical certificates I note that the stated lifting restrictions are not elaborated on such as to support the interpretation Mr Shortland argues for. These words should be given their ordinary meaning. I am satisfied that the lifting restrictions imposed by Mr Shortland's own doctor were that he lift, whether with one or two hands, at various times no more than 2kg or 5kg.

[52] Ms Taraborrelli’s evidence was that the maximum weight required to be lifted in the task of packing was approximately 3 kg. However I note her evidence that other tasks within the duties of Mr Shortland involved heavier lifting of up to 10 kg and I accept her evidence that while the lifting restrictions of 5 kg would not have prevented Mr Shortland doing the packing task a restriction of lifting nothing heavier than 5 kg still meant he was unable to do a range of other tasks he would normally be required to do.

[53] Attached to Ms Taraborrelli’s statement is a copy of a letter dated 22 September 2009 to Mr Shortland from Mr Staff the Production Manager which says that Mr Shortland should be aware that given he is unable to undertake his full duties the company is unable to roster him for any shifts as a casual packer.

[54] Mr Starr's letter goes on to say that:

“Should a medical practitioner declare you fully fit for work again, please advise us and provide a copy of the certificate so that we are able to roster you for work where required.”

[55] It is clear and I accept it to be the case that this letter was given to Mr Shortland at the meeting on the 22 September 2009 attended by Mr Staff, Mr Shortland and Ms Frampton who was Mr Shortlands shift resource (supervisor).

[56] Notes taken of this discussion 6 provided by the respondent and attached to Ms Taraborrelli’s witness statement show that it was explained to Mr Shortland that the company was concerned about his welfare and exacerbating his existing injuries if he continued to work. His response was that “that's it then I'm terminated” to which Mr Staff replied that he was definitely not being terminated and that if he re-read the letter it stated that this was only until his doctor declared him fully fit to work again.

[57] The notes show Mr Staff and Ms Frampton explained to Mr Shortland he was not capable of carrying out the full duties of his role and that there were no alternative duties they could give him and coupled with the risk of him being injured they could not continue with the current work arrangement. Mr Shortland responded by saying that he would need to seek advice on this and that the doctor's report, Dr Silbert's report, was false and misleading, that he had woken up that morning and his hands were in a lot of pain which wasn't right and he shouldn't have to take drugs because of this. Mr Shortland said that perhaps he should become a car salesman or something and that he had lots of skills that most people would want and he wasn't frightened about going forward. Mr Staff reiterated that he hoped he would eventually be fully fit to return to work and that Mr Shortland was not yet terminated.

[58] The notes show Mr Staff asked Mr Shortland to keep in regular contact with them and to provide updates on his condition and the outcomes of his visits to his doctor.

[59] Mr Shortland has not taken issue with this note of the discussions as outlined above, that was included in the witness statements. Mr McGhee gave evidence as to his enquiries as to the accuracy of these notes of that discussion. 7

[60] Mr Shortland's evidence was that he did have a meeting and discussion with Mr Starr and Ms Frampton on 22 September 2010 and was given a letter at that meeting. 8

[61] Whilst Mr Shortland does not concede that exhibit R 3 is totally accurate on balance I do accept that these notes are generally an accurate account of the discussions that occurred on 22 September 2009.

[62] Mr McGhee's evidence was that on 18 November 2009 a letter was received from the National Union of Workers explaining that the union wished to meet with the respondent on behalf of Mr Shortland.

[63] Mr McGhee explained that prior to this on 5 October 2009 Mr Shortland had lodged an application for unfair dismissal and a conciliation conference was held on 23 October 2009 at which Mr Shortland was represented by the National Union of Workers. No agreement was reached during the conference and the respondent was notified on 3 November 2009 that the application had been discontinued. Mr McGhee explained that of course Mr Shortland had not been dismissed at the time of making this application.

[64] Mr McGhee explains that he met with the NUW representative Mr Alex Falconer at the end of November or early December and Mr Falconer asked if Mr Shortland could be rostered to return to work on alternative duties in line with the arrangement the respondent had provided from June 2009 to 22 September 2009. Mr Falconer also asked if the respondent could employ Mr Shortland as a forklift operator in the potato loader role.

[65] Mr McGhee's evidence was that he explained to Mr Falconer that the alternative duties that had previously been provided required the respondent to employee an extra labour hire employee to carry out the tasks which Mr Shortland was unable to do. This was an additional cost which could not be supported on an ongoing basis. Mr McGhee said he told Mr Falconer that if Mr Shortland disagreed with the assessment that his injury was not work-related then he should appeal that through the workers compensation process. Mr McGhee says he is aware this has not occurred.

[66] Mr McGhee also told Mr Falconer the respondent had a duty of care not to place Mr Shortland's health at risk by possibly exacerbating his injury and therefore they would not be rostering him to work until he was fully capable of performing the duties for which he was employed. Mr McGhee advised Mr Falconer that the last medical evidence available which was dated 30 September 2009 indicated the applicant was still subject to work restrictions into the future and that a permanent member of the respondent's staff was currently employed as a potato loader and that role was not vacant.

[67] Mr McGhee's evidence was that he understands that the applicant was informed on 22 September 2009 that he would not be rostered for work until he was capable of performing his role in full and since then all that had been received was one medical certificate dated 30 September 2009 indicating that the lifting restrictions for Mr Shortland had increased from 2kg to 5kg.

[68] Mr McGhee says that since that last progress medical certificate was received around 30 September 2009 the respondent has received no contact from the applicant to advise of any change in his medical circumstances and certainly no information was provided that he was fully fit to perform the duties for which he was employed.

[69] Mr McGhee says that on 11 January 2010 given it had now been more than three months since the applicant had performed any work he sent a letter informing Mr Shortland that his employment was terminated. The only reason for the termination was the fact that Mr Shortland was unable to perform the role for which he was employed due to his non-work-related injury and that this been the situation for more than three months.

[70] The letter of termination is set out below.

11 January 2010

Wayne Shortland

115 Challenger Avenue Parmelia WA 6167

Dear Wayne

You have been absent from casual work with The Smith's Snackfood Company since 22^nd September 2009,

On 18^th September 2009, we advised you by letter that as you were unable to undertake your full duties, we would not be able to roster you for any shifts as a casual packer.

We also informed you that should a medical practitioner declare you fully fit for work again, we would roster you for work where required.

Following your discontinued Unfair Dismissal application, I met with Alex Falconer of the National Union of Workers to discuss your case on 25 November 2009. At this meeting I reiterated to Alex that we would only be able to accommodate your return to work once you were fully fit and able to perform all of your standard duties.

Both company policy and legislation protect the continuity of employment during absences due to temporary illness or injury. Temporary is defined under workplace legislation as a period/s on unpaid leave of up to three months' duration.

As you have now been absent from work on unpaid leave for a period well in excess of three months — and there is no prospect of a return in the foreseeable future - your employment is to be terminated, effective Monday 11 January 2009.

Your superannuation provider will be notified to provide you with information regarding your superannuation benefit, rollover options etc. Please arrange for the return of any company property in your possession.

Yours faithfully,

Ryan McGhee

Human Resources Manager, Western Australia

[71] Mr Shortland took issue with the fact that the body of the letter says his employment is terminated effective 11 January 2009 rather than 2010. Mr Shortland argued that Mr McGhee was an unreliable witness because of this error. Mr McGhee says that the mistake was his and was a typographical error. I accept this to be the case and reject that this error affects Mr McGhee’s credibility in any way. I found him to be an entirely credible witness and I accept his evidence in full.

[72] Nothing in any event turns on this. Mr Shortland in his application stated the termination took effect on 10 January 2010, as it clearly did.

[73] Mr Shortland acknowledges that he was involved in discussions between June and September 2009 about his injury and the alternative duties program. 9

[74] Relevantly Mr Shortland’s evidence was that the restrictions and limitations the doctors imposed on him were small ones as far as his role with the respondent went. On some nights he might not to do the restricted tasks at all but on other nights he might do those for two hours. 10

[75] His evidence was that the respondent badgered his treating doctor to get him to sign off on some procedures that the doctor really didn't understand and his treating doctor authorised a procedure where Mr Shortland used a knife with a vertical handle and this action was actually aggravating his injury. 11

[76] Mr Shortland's evidence, repeated in his submissions, was that in his view the doctors restrictions placed on his lifting were either 2kg “per hand” or 5kg “per hand”. Because these lifting limitations were “per hand” the packing role did not exceed these limits other than when he would be required to lift a gas bottle onto the forklift. 12

[77] Mr Shortland's evidence was that he was restricted in being unable to do a repetitive action for a couple of the tasks of a packer but that if the company had been properly staffed and there were enough packers, that a packer would really only pack for probably half the time in a week instead of packing for 80 to 90% of the time which is what occurred for him on night shift. 13

[78] Mr Shortlands evidence was that he was 95% capable of doing his job with the exception of using a knife to push forward and with the exception of the packing of the 45g chips. 14

[79] Mr Shortlands evidence was that Dr Khan was his family doctor who had treated him over many years who coincidentally practiced at the respondent’s preferred medical centre. 15

[80] Mr Shortland's own evidence involves concessions that he was not able to carry out the tasks required of him. He says his limitations were as little as 5% however he also says that at times the tasks he was not able to do would be ones that he would normally be working on for an extended period of time but says this is because the respondent was not properly staffing the work area.

[81] Having observed and listened to Mr Shortland give his evidence and having reviewed the transcript of his evidence and submissions it is my conclusion that Mr Shortland has understated the extent of the restrictions on his work his condition caused and he has tended to exaggerate the proportion of his full duties he was fit to perform.

[82] Having reviewed his evidence and the evidence of the other witnesses and considering the medical information provided by Dr Silbert and Dr Khan I find that Mr Shortland between June and September 2009 was not able to carry out his full duties as would normally be required of him and that his reduced capacity to do these duties was significant.

[83] Following the meeting on 22 September 2009 the only contact Mr Shortland had with the respondent, were the proceedings about his unfair dismissal application in October 2009, and then the meeting between Mr Falconer on his behalf with Mr McGhee in late November or the first week of December. I find that since 22 September 2009 Mr Shortland had not taken any action to inform the respondent of any changes in his medical situation.

[84] Mr Shortland's evidence was that his current treatment, at the date of the hearing, has revealed that his arm soreness might just be a pinching of a nerve that goes through one of the muscles and so he has been having cortisone injections to solve this issue. 16

[85] Mr Shortland’s evidence was that at the time of hearing he did not have a medical clearance stating he is able to perform the full range of his duties in an unrestricted manner. He says he does not have such a medical clearance because he cannot afford to obtain one and because he slept in past the time of an appointment with his doctor. 17

[86] There is no evidence that on or after 11 January 2010, when Mr Shortland's employment was terminated, he was or became fully fit to undertake the normal duties for which he was employed.

[87] Finally, I have considered the concerns about the respondents Code of Conduct and the accusation that others were employed to do Mr Shortlands work. I find that he has not discharged the onus on him to provide evidence to substantiate these complaints.

Consideration

[88] Section 387 sets out the criteria the tribunal must take into account when considering whether a dismissal was harsh, unjust or unreasonable.

s.387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

[89] These criteria are considered in turn below.

Whether there was a valid reason for the dismissal

[90] When Mr Shortland was terminated he was not fully fit to perform the normal duties of the role in which he was employed.

[91] Mr Shortlands incapacity did not arise from a work related injury. There was therefore no obligation on the respondent under state workers compensation legislation to provide continued employment.

[92] At the time of termination the extent of Mr Shortlands limitations caused by the incapacity to do his full duties were significant. The limited tasks that he was able to perform were less than the full range of duties he was employed to carry out. When prior to 22 September 2009 Mr Shortland had worked this had required the respondent to provide an additional person to take up the balance of the tasks he was unable to do which imposed a real cost burden on the respondent.

[93] Mr Shortlands ongoing incapacity to perform his full duties in all the circumstances here was a valid reason for his termination related to his capacity.

Whether the person was notified of that reason

[94] The applicant was notified in discussions on 22 September 2009 that the respondent would not be offering him work until he was medically demonstrated to be fully fit to resume his normal duties. This was confirmed in a letter to him on the same date. Further, the letter of termination explained in detail the reasons for termination. Consequently I am satisfied that the applicant was adequately notified of the valid reason for his termination.

Whether the person was given an opportunity to respond to any reason

[95] I have no doubt that at all times from 22nd of September 2009 onwards the applicant understood that he would not be returning to work unless he was fully fit. During the discussion on this date his initial reaction was to interpret the explanation of the respondent's position as meaning he was terminated then and there. Indeed the respondent had to reassure him that this was not the case.

[96] Shortly thereafter he lodged an unfair dismissal case with the assistance of the National Union of Workers. This matter was discontinued apparently because it was recognised correctly that at this point in time he had not been terminated.

[97] Next the discussions between the Mr Falconer expressly acting on behalf of Mr Shortland and Mr McGhee in late November or early December involved Mr Falconer arguing that Mr Shortland should be allowed to resume work notwithstanding the medical information regarding his limitations and the concerns explained by the respondent.

[98] Whilst at the time of making the decision to terminate Mr Shortland he was not asked to respond to the reason for his termination, from 22 September 2010 onwards he did have opportunity to respond to the reason for termination and indeed did so.

Any refusal to allow the person to have a support person present

[99] There was no refusal to allow a support person to be present at any discussions relating to Mr Shortland's dismissal.

Whether the person had been warned about unsatisfactory performance

[100] The dismissal did not relate to unsatisfactory performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed

[101] The respondent is a large organisation and appropriate procedures were followed consistent with the respondent's size

The degree to which the absence of dedicated human resource management specialists would impact on the procedures

[102] The respondent does have dedicated human resource management specialists and the procedures followed reflect this.

Any other matters that FWA considers relevant.

[103] Other matters that are relevant are that the applicant had been working for approximately three and half years, which weighs in his favour, however against this is the fact that he was engaged as a casual employee and worked only a limited number of shifts, sometimes as few as one per week.

[104] It is relevant in this instance that for a period of time the respondent did support the applicant by putting in place the alternative duties program and that this involved the respondent incurring additional costs in terms of using an extra employee.

[105] Also relevant is that after being advised on 22 September 2009 that when he was fully fit to work he would be welcome to return and to keep the respondent informed of any developments, nothing more was heard from Mr Shortland regarding his medical situation.

[106] Finally, it is relevant to note that the respondent allowed a period of over 3 months to pass to see if Mr Shortlands incapacity would be resolved and terminated him only after this time had passed.

Conclusion

[107] In this case through no fault of Mr Shortland's, but equally through no fault of the respondent, the situation has arisen whereby he is unable because of incapacity to perform the full duties for which he was employed. Mr Shortland believes that the respondent should have taken further steps to accommodate his incapacity and whilst acknowledging he was not able to do all of the tasks he would normally do, believes that he could have continued to work doing some tasks. Whilst appreciating that he is upset at the situation he finds himself in it is fair to recognize that the respondent has been sympathetic to his plight, has expended significant time and effort attempting to address his situation and has allowed him an extended period of time to see whether his medical situation would improve so that he could resume his full duties.

[108] Whilst it might be argued that the respondent should have met with Mr Shortland immediately prior to the termination to discuss their intention to terminate his employment and to allow him a formal opportunity to respond, such a procedural lapse in the particular circumstances of this case, is a deficiency of form rather than of substance.

[109] Considering all of the circumstances here my decision is that that on balance the respondent's decision to terminate Mr Shortlands employment was not harsh, unjust or unreasonable.

[110] Accordingly this application is dismissed.

COMMISSIONER

Appearances:

Mr W Shortland, the Applicant, on behalf of the Applicant

Mr D Van De Hoef, National Employee Relations Manager for Pepsi Co Australia, on behalf of the Respondent

Hearing details:

2010.

Perth:

November 18.

 1   Exhibit A4

 2   PN 962

 3   Exhibit A4, Page 5

 4   Exhibit A4, Page 6

 5   Exhibit A4, Page 8

 6   Exhibit R3

 7   PN764 and 765.

 8   Exhibit R4 PN604

 9   PN585 and 586

 10   PN479

 11   PN483 - 485

 12   PN490

 13   PN490 and 491

 14   PN497, 563, 575

 15   PN577 - 579

 16   PN483

 17   Pn 640. 641 and 649

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