Noel Ellis v Toll Transport Pty Ltd T/A Toll Customised Solutions
[2012] FWA 6640
•16 AUGUST 2012
[2012] FWA 6640 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Noel Ellis
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(U2012/6433)
COMMISSIONER BISSETT | MELBOURNE, 16 AUGUST 2012 |
Application for unfair dismissal remedy.
[1] This is an application by Mr Noel Ellis (the Applicant) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Ellis commenced employment as a direct employee in the Knoxfield warehouse of Toll Transport Pty Ltd t/as Toll Customised Solutions (Toll or the Respondent) on 17 October 2005. Prior to this Mr Ellis had worked as a regular casual employee at the site for a period of just over four years through a labour hire agency.
[3] Mr Ellis had his employment terminated for gross misconduct on 22 March 2012.
[4] On 14 February 2012 Mr Ellis experienced back pain when he bent over to pick some broken pallet off the ground. As he continued to work his back did not bother him but when he stopped for his ‘smoko’ break and cooled down an intense pain developed in his back. He collapsed to the floor and was unable to get up. An ambulance was called and took him to hospital. He was kept in hospital for about five hours and then sent home.
[5] A report of the event was entered into the Toll Injury Management System (IMS). Added to this was a report of a witness who heard Mr Ellis make some statements about his back at the time he was injured at work.
[6] As a result of the comments said to have been made by Mr Ellis with respect to a pre-existing back injury his pre-employment medical form was checked. A subsequent meeting was held with Mr Ellis on 13 March 2012 to discuss discrepancies between what witnesses say they heard him say when injured and past injuries he disclosed on the medical form.
[7] Mr Ellis lodged an application for workers’ compensation. As part of the investigation conducted by the Respondent in relation to the workers’ compensation claim Mr Ellis provided a detailed statement to an investigator where he particularised a range of previous injuries. This investigative report indicted injuries also not disclosed on the medical form or in Mr Ellis’ statements in the meeting on 13 March 2012.
[8] A further meeting was held with Mr Ellis on 22 March 2012 where he was asked about the inconsistencies. At the conclusion of the meeting his employment was terminated.
[9] Mr Ellis’ employment was terminated on 22 March 2012 for reasons of serious misconduct. The reason for dismissal was the ‘deliberate intent [Mr Ellis] demonstrated in misleading the business which in turn placed [him] and the business at risk’. 1 Whilst the conduct justified summary dismissal the Respondent elected to pay Mr Ellis five weeks’ pay in lieu of notice.
[10] Mr Ellis subsequently lodged an application for unfair dismissal on the basis that the termination of his employment was harsh, unjust or unreasonable.
The evidence
[11] Evidence was given in the proceedings by Mr Ellis and Mr Andrew Riley for the Applicant. Mr Matthew Smith of the Respondent gave evidence on subpoena and Ms Cheryl Meik and Mr Phillip Dempster gave evidence for the Respondent.
Noel Ellis
[12] On 14 February 2012 Mr Ellis bent over to pick up some pieces of broken pallet on the ground. In doing so he felt some pain in his back. Not long afterwards he had his smoko break where he stopped moving and ‘cooled down’ for about 15 minutes. When he got up to move he felt severe pain in his back. He could not walk, called out to Dave, a fellow employee, and then fell on all fours. An ambulance was called and arrived 15-20 minutes later. He told the ambulance attendant what was wrong and was given a ‘puffer’ for the pain. He was then placed on a stretcher and taken to hospital where he was treated.
[13] Mr Ellis said to the ambulance attendant that he had an injury to his back and that when he has niggles and strains he deals with them himself by using deep heat and having a hot bath. He also told the ambulance attendant that he had had a problem with his back when he was a teenager.
[14] Following some time off work with the injury Mr Ellis returned to work on 13 March 2012. Not long after arriving he was called to a meeting with Matthew Smith from HR and Cheryl Meik. Mr Ellis thought the meeting was about his return to work.
[15] Mr Smith said at the beginning of the meeting that he wanted to ask some questions about the responses Mr Ellis included on his medical pre-employment form that he had completed when he commenced work as an employee of Toll in 2005.
[16] As to the specific details on the form and why certain questions had been answered in particular ways Mr Ellis says that he told Mr Smith he could not remember as it was such a long time ago.
[17] Mr Ellis’ evidence is that at the meeting Mr Smith asked if he had a pre-existing back injury, to which he replied that he has ‘niggles and strains’ like everyone else and had had a ‘pinched nerve’ three or four years ago. Initially he told Mr Smith he did not have time off work for that event but then, when he had time to think, said he might have taken a ‘couple of days off.’ He denied that he came to work and ‘took it easy’ to get over the condition. Mr Ellis told Mr Smith that he treats such niggles with deep heat rub and a hot bath but that such niggles were not regular with the last one occurring 3-4 years ago.
[18] Mr Ellis said that the terms ‘niggle,’ ‘strain’ and ‘pinch’ all meant the same to him and that he is ‘not a medical expert’.
[19] Mr Ellis told Mr Smith that he had worked in the building trade when he was a teenager [when he was 15 or 16. Mr Ellis was 49 years old at the time of the hearing] but had not said it was a ‘disc’ problem. Mr Ellis had not included this on his pre-employment medical form as it never went on ‘compo or anything.’
[20] At the conclusion of the meeting Mr Smith told Mr Ellis that he would be investigating the matter and that Mr Ellis was stood down.
[21] Mr Ellis cannot recall being asked by Mr Smith if he wanted a support person with him in the meeting.
[22] Mr Ellis met with the investigator with respect to his workers’ compensation claim on 20 March. He was given a number of days’ notice of this meeting.
[23] Mr Ellis was called back for a further meeting with Mr Smith on 22 March 2012. Mr Ellis had with him his partner and a union organiser. Mr Smith was accompanied by Mr Phillip Dempster, the senior operations manager.
[24] Mr Ellis’ evidence is that at the meeting on 22 March 2012 Mr Smith asked him similar questions to those he asked on 13 March 2012, questioned him about inconsistencies between what he had said to the investigator and what was on his pre-employment medical form and asked why he had not declared certain injuries on his pre-employment medical form. Mr Ellis told Mr Smith that he had not included a number of matters on his medical form as it was an oversight.
[25] Mr Ellis said he did not use the term ‘niggle’ to describe his back condition to downplay that he had used the term ‘pinched nerve’ to describe it at the meeting on 13 March 2012.
[26] Mr Ellis believed, from the questioning, that Mr Smith was accusing him of lying. He says he did not deliberately mislead Mr Smith.
[27] Mr Ellis has no recollection of having made a WorkCover claim for a back injury in 1997 but agreed that if there was evidence of such a claim then he must have made it.
[28] In his written statement Mr Ellis said that he had not been subject to formal discipline at work although he was ‘spoken to’ by management after an argument with a truck driver. Mr Ellis considers formal discipline to be a written warning. He agreed he was spoken to twice but considers this not the same as formal discipline.
Matthew Smith
[29] Mr Smith’s evidence is that at the commencement of the meeting on 13 March 2012 he told Mr Ellis he could have another person present. When Mr Ellis rejected this offer, Mr Smith told him that if he changed his mind the meeting could be stopped to allow him to get a support person. He also told Mr Ellis that the meeting was about his pre-employment medical form.
[30] Mr Smith called the meeting because he was concerned about statements made by Mr Ellis with respect to a previous back injury. He needed to understand if there was pre-existing injury and had questions as to whether this had been disclosed on the pre-employment medical form.
[31] Mr Smith says that, during the meeting, Mr Ellis said he had a pinched nerve 3-4 years ago and that it was related to a disc injury he had sustained when working in the building trades. When Mr Smith asked Mr Ellis why he had not included this injury on his pre-employment medical form, Mr Ellis replied that it ‘never went on compo or anything’. When Mr Smith asked for an explanation as to the inconsistency between this statement and matters he had declared on the pre-employment medical form that included compensable and non-compensable injuries, Mr Ellis failed to provide a satisfactory answer.
[32] On receipt of the statement Mr Ellis made to the investigator (which Mr Smith was not responsible for instigating) Mr Smith was concerned about inconsistencies between what Mr Ellis had told him on 13 March 2012 and the statement made to the investigator a week later. He did not find it credible that Mr Ellis had no recollection of some previous injuries in the meeting on 13 March 2012 but gave a full disclosure of these to the investigator on 20 March 2012. In this respect Mr Smith believed that Mr Ellis had misled him but not the investigator.
[33] Mr Smith told Mr Ellis at the meeting on 22 March 2012 that a key issue was the integrity and conduct of Mr Ellis with respect to his pre-employment medical form and statements he made to the business during the current investigation. Mr Smith told Mr Ellis that he had serious concerns as to Mr Ellis’ integrity as an employee as evidenced by his lack of disclosure on his pre-employment medical form and his conduct during the investigation. Mr Smith also said he was concerned by Mr Ellis’ inability to maintain a consistent version of events affected the ability of Mr Smith to gain a true picture of Mr Ellis’ on-going physical capability.
[34] Mr Smith said to Mr Ellis in the meeting that he was surprised Mr Ellis could ‘remember a tonsils procedure but not his knee surgery.’
[35] Mr Smith gave Mr Ellis the opportunity to conclude the meeting and schedule another meeting to give Mr Ellis an opportunity to respond to the allegations. Mr Ellis rejected this and asked that the matter be finalised that day.
[36] Mr Smith then organised a short break following which Mr Ellis could provide him with reasons as to why his employment should not be terminated.
[37] Mr Smith formed the opinion that the reasons given by Mr Ellis for not disclosing his injuries on the pre-employment medical form were not credible. He formed this opinion ‘in part because Mr Ellis modified his statements and version of events on more than one occasion without explanation and that his reasons for non-disclosure of various aspects of his medical history at the time of his pre-employment medical were inconsistent’. 2 Mr Smith also stated that a key input into forming this view was that Mr Ellis was directly asked, in the meeting of 13 March 2012, if there were any other omissions on the medical form apart from the back injury to which Mr Ellis replied that there was nothing else to be included.
[38] Mr Smith said that Mr Ellis’ employment was terminated because he failed to disclose a number of injuries on the pre-employment medical form and because of his intent to mislead the investigation conducted by Mr Smith.
[39] Mr Smith accepts that two differing statements do not necessarily mean a person is being dishonest.
[40] With respect to the 1997 WorkCover claim, Mr Smith says he has not seen a copy of the claim but accepts the word of Mr Spence in the insurance group as to its existence.
Cheryl Meik
[41] Ms Cheryl Meik is the OH&S Risk Administrator for Toll. She was present at the meeting on 13 March 2012 with Mr Ellis. She said that the purpose of the meeting on 13 March 2012 was to discuss Mr Ellis’ pre-employment medical form.
[42] Ms Meik says the outcome of the meeting was two inconsistencies. First that Mr Ellis had not mentioned his back injury on the pre-employment medical form and that 3-4 years ago he had pinched a nerve in his back.
[43] Ms Meik says she cannot remember all of what Mr Ellis said at the meeting. She said Mr Ellis got upset during the meeting because he thought he might lose his job. She indicated that she had no reason to think Mr Ellis was not telling the truth when he said he did take time off 3-4 years ago when he injured his back.
[44] Ms Meik was responsible for entering a report of the incident with Mr Ellis in February into the Toll IMS. Whilst she attended the incident she did not write the report, as an employee who had been present for most of the time was the appropriate person to do so.
[45] Later on the day of the incident or the next morning she received an email from Mr Dempster which detailed what he had heard Mr Ellis say whilst he was waiting for the ambulance and then to the ambulance driver. This reminded her of what she had heard Mr Ellis say to the ambulance driver although she agreed that she had not heard everything Mr Ellis said because she was moving around at the time.
[46] Ms Meik input into the IMS word for word what Mr Dempster had said in his email. 3
[47] Ms Meik said that the purpose of the pre-employment medical form is to see if there are any pre-existing medical injuries so that the company can know that a person can fulfil their duties without causing injury to themselves or harm to others.
Phillip Dempster
[48] Mr Phillip Dempster is the Senior Operations Manager for Toll Customised Solutions. He is the person in charge of the warehouse where Mr Ellis worked prior to the termination of his employment.
[49] Mr Dempster attended the meeting on 22 March 2012 with Mr Ellis. Mr Dempster says that the description of events as set out in the outline of submissions filed by the Respondent 4 in this matter as far as it relates to the meeting of 22 March 2012 is correct.
[50] Mr Dempster says that that the meeting of 22 March 2012 discussed the matters raised at the meeting of 13 March, the outcomes of the subsequent investigation undertaken by Mr Smith and what would happen next. The finding of the investigation was that Mr Ellis did have a back injury which he had not included on the pre-employment medical form [completed in 2005] when he commenced direct employment with Toll.
[51] Mr Dempster said he had known Mr Ellis for 10 years, considers him ‘down to earth’ and has never found him dishonest within the workplace.
[52] At the meeting on 22 March Mr Ellis was withdrawn and quiet. Mr Dempster considered that he was being honest.
[53] Mr Dempster said that Ms Meik had accurately transcribed the note he sent to her of what he heard Mr Ellis say to the ambulance attendant and what was on the file note on IMS was what he heard Mr Ellis say.
[54] Mr Dempster was with Mr Ellis from not long after he injured himself. He sat on the ground with Mr Ellis for about 20 minutes prior to the ambulance arriving. Mr Ellis was in a lot of pain and when Mr Dempster asked what was wrong Mr Ellis informed him he had an ‘issue with his disc in his back’ from many years ago and said that he wanted to go home, have a bath, rub some deep heat into it. When the ambulance arrived Mr Dempster assisted Mr Ellis onto the stretcher.
[55] The report on the Toll IMS is what he heard Mr Ellis say to the ambulance attendant.
[56] Mr Smith and Mr Dempster discussed the incident, although not in great depth, prior to the meeting with Mr Ellis on 22 March 2012 and Mr Smith had indicated that termination of employment was very likely. In the break taken during the meeting on 22 March he and Mr Smith discussed the potential outcome and Mr Smith informed Mr Dempster that Mr Ellis would be dismissed for gross misconduct. Mr Dempster told Mr Smith he did not personally agree with that decision but would stand by it because it was Toll’s decision. Mr Dempster asked Mr Smith if there was any other option to dismissal and Mr Smith replied that there was not.
[57] Mr Dempster said Mr Smith was professional in the meeting on 22 March and was not aggressive. He may have asked some questions a couple of times so Mr Ellis understood what was being asked of him.
Mr Ellis is protected from unfair dismissal
[58] The requirements for protection from unfair dismissal are set out in s.382 of the Act.
[59] There is no dispute between the parties and I find that Mr Ellis is protected from unfair dismissal.
Was the termination of Mr Ellis’ employment harsh, unjust or unreasonable?
[60] In determining if the termination was harsh, unjust or unreasonable s.387 of the Act sets out those matters that must be considered:
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.
A valid reason
[61] Where the reason for termination relates to a person’s conduct it is necessary for the tribunal to determine if the conduct occurred. 5 A finding as to whether the conduct took place must be based on the evidence before the tribunal.6
[62] Mr Ellis’ employment was terminated because of his deliberate intent demonstrated in misleading the business which in turn placed him and the business at risk. 7
[63] The deliberate intent to mislead the business was Mr Ellis’ failure to disclose a number of injuries on the pre-employment medical form and his further lack of disclosure of these injuries to the investigation conducted by Mr Smith. 8
The pre-employment medical form
[64] The pre-employment medical form 9 requires a prospective employee to complete Section B by placing a tick in the Yes or No column in Section B(i) and then by signing the statement at B(ii) in the presence of the examining doctor’s staff.
[65] In Section B(i) of the form Mr Ellis ticked ‘yes’ to the questions: have you had any back, leg or joint injury or problem (he circled ‘leg’); have you had any broken bones; and have you had a blood test or x-ray in the past 12 months. To the question: have you had any neck, arm or shoulder injury or problem, Mr Ellis ticked ‘yes’, crossed this out, and then ticked ‘no’.
[66] Mr Ellis also indicated on the form that he had not received, applied for nor intended to apply for a pension or compensation for an existing or previous disability; had not been unable to hold a job because of sensitivity to dust, chemicals or other medical reasons; was not contemplating medical or surgical treatment and was not aware of any circumstances with his health that would prevent him performing the duties of the position he applied for.
[67] Mr Ellis indicated that he had had an operation for his tonsils.
[68] The examining doctor added some comments with respect to specific injuries on the form.
[69] At B(ii) Mr Ellis signed a statement that the information recorded [in B(i)] was true and correct to the best of his knowledge and that he was prepared to undergo a medical examination.
[70] The pre-employment medical form appears to be generic form and not specific to Toll.
The back injury of 30 years ago
[71] Mr Ellis was advised by a doctor some 30 years ago that he should not continue working as a labourer. At that time Mr Ellis had sustained some injury to his back (although exactly what this was is not established by evidence). The extent of this injury, whether it was degenerative or chronic is not known and cannot be speculated on.
[72] There is no evidence of any other injury suffered by Mr Ellis to his back prior to the time he completed the medical form in 2005.
[73] Following the injury he sustained at work on 14 February 2012 Mr Ellis was sent by his treating doctor for a scan on his back. The report of this scan 10 was attached to Mr Ellis’ statement in the proceedings. It indicates a ‘central disc protrusion’. The report was not subject to any scrutiny during proceedings and there is nothing that links the status of his back in this report to any pre-2005 back complaint.
[74] Despite this Mr Ellis does admit that he had a back complaint dating from 30 years ago.
[75] This injury was not disclosed on the pre-employment medical form. Mr Ellis said that he did not include it on the form as he probably did not have enough time and it was probably an oversight.
[76] Mr Ellis should have included this information on the pre-employment medical form.
Other injuries
[77] In his statement to the investigator with respect to his claim for workers’ compensation Mr Ellis gave a detailed statement of all of his illnesses and injuries. 11 In that statement Mr Ellis said that:
- When he worked as a builders labourer he had a few niggles and went to see a doctor. The doctor suggested he change jobs so he ceased working as a labourer;
- When working for a furniture company he cut his hand and required stitches. This was subject to a WorkCover claim;
- When working as a forklift driver for a timber company he was in an accident and sustained whiplash in his neck and shoulders. He was off work for 3 or 4 days. The injury was subject to a WorkCover claim;
- When working at Australia Post he fell on some stairs and injured his knee. This required arthroscopic surgery and he was off work for 2 or 3 weeks. This was subject to a WorkCover claim;
- About 3½ years ago he injured his back (not at work). He saw his own doctor who suggested he rest. He took a few days of personal leave to recover.
[78] The dates of these injuries are not identified.
[79] Only the first of these injuries was identified on the pre-employment medical form. Mr Ellis did not advise on the pre-employment medical form that he had undergone arthroscopic surgery on his knee or that he sustained some injury to his neck and shoulders.
[80] These are pre-existing injuries that should have been disclosed on the pre-employment medical form.
The back injury of 3-4 years ago
[81] Some 3-4 years ago - that is in 2008 or 2009 - Mr Ellis hurt his back at home. He saw his doctor, took a couple of days off work and treated the injury with deep heat and a warm bath. This incident was a number of years after he completed the pre-employment medical form.
[82] In the interview of 13 March 2012 Mr Ellis first said he did not take time off work for this injury and later in the same meeting said he may have had a few days off.
Did Mr Ellis make a prior workers’ compensation claim with respect to a back injury?
[83] Mr Smith gave evidence that he was advised by Steven Spence, a Toll employee in the Self Insurance Business unit, that the Victorian WorkCover Authority hold a record of a claim lodged by Mr Noel Francis Ellis for an injury sustained to his back on 3 April 1997. A copy of the email from Mr Spence to this effect was included with the submissions of Toll. 12 Mr Smith did not indicate that he had seen the claim.
[84] Mr Ellis said he did not recall that he had made such a claim but if it exists then he must have.
[85] No evidence of the claim itself, beyond an email from Mr Spence that went to the existence of the claim, was presented during the hearing. Mr Spence was not called as a witness and a copy of the claim alleged to have been made was not provided.
Did Mr Ellis deliberately mislead Toll and/or Mr Smith?
[86] It is alleged that Mr Ellis deliberately misled Mr Smith. This is said because Mr Ellis:
- at the meeting on 13 March 2012 failed to disclose other injuries that should have been included on the pre-employment medical form that were not. These injuries came to light when disclosed to the investigator; and/or
- first said that he had not included his old back injury on the pre-employment medical form because it was not a ‘compo matter’ then changed to say it was an oversight;
- changed his description of his back problems from a pinched nerve to a niggle from the meeting on 13 March 2012 to the meeting on 22 March 2012;
- first said at the meeting on 13 March 2012 that he had no time off when he injured his back 3-4 years ago and then said he had taken a few days off;
- had made a previous workers’ compensation claim for a back injury in 1997.
[87] Mr Smith accepts that Mr Ellis’ statement to the investigator suggests candour and honesty although cannot explain why he would not have been honest with Mr Smith.
[88] Whilst some of Mr Ellis’ conduct may have been misleading the question to be answered however is if Mr Ellis deliberately misled Mr Smith.
[89] To deliberately mislead suggests some ulterior motive in not telling the truth. It suggests an intentional decision, in this case, to not reveal all of the pre-existing injuries.
[90] It is true that on 13 March 2012 Mr Ellis said he could not recall any other injury but his back injury that he failed to disclose on his pre-employment medical form when clearly there were further matters that should have been disclosed. On the basis of the evidence before me I find that Mr Ellis did fail to disclose a number of injuries on his pre-employment medical form. In particular he did not disclose on the pre-employment medical form the injury to his back some 30 years ago, the injury to his knee and the whiplash he sustained to his neck and shoulders. In this respect he did mislead the Respondent with respect to those answers he gave on his pre-employment medical form. In this respect Mr Ellis did mislead Mr Smith.
[91] It is true that Mr Ellis gave a different reason for not including the back injury on his pre-employment medical form on 13 March to that given on 22 March 2012. On the basis of the evidence I am not satisfied that the change in reasons as to why his back injury wasn’t included on the pre-employment medical form from the meeting on 13 March 2012 to that of 22 March 2012 was misleading. It does no more, in my opinion, than reflect the time Mr Ellis had to think about the matter. He was not aware of the reason for the meeting on 13 March 2012 and was asked to recall matters from seven years ago. It is reasonable that he postulate a reason on 13 March that might change upon reflection by 22 March 2012.
[92] I accept the evidence that at the meeting of 13 March 2012 Mr Ellis described his back problem as a pinched nerve and that at the meeting on 22 March he said it was a niggle. On 21 February at the time he injured himself at work he apparently described it as a disc problem.
[93] It is true that on 13 March Mr Ellis said he could not recall any other injury but his back injury that he failed to disclose on the pre-employment medical form when there clearly were matters that should have been but were not reported on the pre-employment medical form.
[94] There appears to me a general imprecision in the language of non-medically qualified people when describing back pain. This has been evident in these proceedings. Without a medical assessment few people would know if their back pain was muscular, a pinched nerve, a compressed disc or some other ailment. Mr Ellis himself described his pain as a pinched nerve, a niggle and an ache (to Mr Smith) and a disc problem (to the ambulance attendant). It is not, in my experience, unusual for people to give some quasi-medical explanation for back pain, as if to make the pain more legitimate to others. Such utterances by untrained people should not be attributed with some true medical significance without further evidence.
[95] My observations of Mr Ellis in the witness box suggest that he is not a man whose attention is focussed on words and perhaps does not appreciate the need to display precision in the use of words. As he said himself, a ‘formal counselling’ to him means written warnings, not verbal warnings, and a ‘niggle’, a ‘pain’ and a ‘pinch[ed nerve]’ are all the same. This is not to suggest that I don’t think Mr Ellis was telling the truth but it is a relevant consideration as to whether he deliberately misled Mr Smith in the investigation or Toll in completing the pre-employment medical form.
[96] I am not satisfied that Mr Ellis sought to mislead Mr Smith with his changed description of his back complaint at the meetings on 13 March and 22 March 2012.
[97] I am not satisfied that Mr Ellis sought to mislead Mr Smith as to whether he had time off work when he hurt his back at home 3-4 years ago. Initially he said he did not have time off work but during the meeting corrected this statement. Much was made by the Respondent of the fact that, in saying he did have time off, Mr Ellis did not say words to the effect that ‘now I’ve had time to think about it, actually I did [have time off].’ This is not an argument that carries any weight. I accept that Mr Ellis thought he had taken time off and, having reached this view, said so. There is no basis on which to find that Mr Ellis misled Mr Smith when he changed his answer as to taking time off work with a back injury 3-4 years ago.
[98] There is little evidence of any probative value to suggest that Mr Ellis had lodged a workers’ compensation claim for some back injury in 1997. If in fact he had, Toll could have produced this. It did not. I am therefore not convinced that Mr Ellis engaged in misconduct by not disclosing a 1997 workers’ compensation claim for a back injury.
[99] Whilst I accept that Mr Ellis did mislead Mr Smith in the investigation and Toll in the pre-employment medical form with respect to injuries other than his back injury not included on the form I do not consider these were deliberate acts. No plausible explanation was given as to why Mr Ellis would deliberately mislead the Respondent in this way. He had no reason to think he was not fit to work in the warehouse - he had been doing the work, albeit through a labour hire agency, for close to four years without incident or question.
[100] The Applicant’s response to the investigator does not suggest a person who would intentionally withhold information of previous injuries. As Mr Smith observed Mr Ellis appears to have been quite candid and honest with the investigator. I find that the advance notice he was given of the interview may have assisted in this regard.
[101] I consider that Mr Ellis’ statements in the meeting of 13 March can be discounted by the fact that he had no advance notice of that meeting. He thought it was about his return to work. He arrived at the meeting to be shown a form he had completed some seven years previously and asked about the truthfulness of its contents. That he responded in the context primarily of his recent injury is not surprising - this was his first day back at work and this is what he thought the meeting was about. As Mr Ellis said he could not fully remember the medical and associated matters from seven years ago.
[102] By the time the meeting of 22 March was held Mr Ellis had met with the investigator. A number of other injuries had been brought to the fore and were honestly reported.
[103] Whilst Mr Smith may have been misled in his investigation and the Respondent misled in the completion of the pre-employment medical form by Mr Ellis, in doing so I find Mr Ellis did not set out to deliberately mislead either Mr Smith or the Respondent.
[104] The effect of those things that Mr Ellis did mislead the Respondent about has not been substantial. In some cases misleading conduct will provide a valid reason for the dismissal of an employee. In this case the Applicant had worked for the Respondent, albeit through a third party, for some four years where his medical state and past injuries were not at issue even though he was doing exactly the same work. This heavily weighs against any finding that the conduct constitutes a valid reason for termination. Further, there is no evidence that suggests that, at the time of completing the pre-employment medical form, Mr Ellis was told that any failure to disclose past injuries would lead to disciplinary action.
[105] In this case, based on these circumstances, I do not consider that the conduct of the Applicant that I have found provides a valid reason for the termination of his employment.
Was he notified of the reason?
[106] Mr Ellis was notified of the reason for his dismissal.
Was he given a opportunity to respond?
[107] Mr Ellis was given an opportunity, at the meeting of 22 March 2012, to respond to the reason for his dismissal. He was given the opportunity to have the meeting adjourned until a later date to provide his response but he asked for the matter to be finalised that day. He was, even in these circumstances, given an opportunity to respond.
Refusal of a support person
[108] Mr Ellis says that at the meeting on 13 March 2012 he was not given an opportunity to have a support person present although he also said he could not recall if he was given an opportunity. Both Mr Smith and Ms Meik say he was offered the opportunity.
[109] On balance I accept the evidence of Mr Smith and Ms Meik that Mr Ellis was given the opportunity to have a support person present.
Size of the employer’s undertaking and access to dedicated human resources staff
[110] No submissions were made on these issues and they are not relevant to my considerations.
Other matters
[111] Mr Ellis had worked directly for Toll at the Knoxfield warehouse since 2005. It was at that time he was required to complete a pre-employment medical form. Ms Meik says the purpose of the completion of the form is to ensure the prospective employee can fulfil their duties without causing harm to themselves or anyone else.
[112] Mr Ellis had, in fact, worked at the site since 2001. From 2001 until his employment in 2005 Mr Ellis was a casual employee at the warehouse employed through a third party provider of labour (Catalyst).
[113] Toll says that the failure of Mr Ellis to disclose his pre-existing back injury is a significant matter given that he was employed as a storeperson and that a significant part of his role was manual in nature. 13 At no time prior to 2005 was Mr Ellis asked about any injuries he may have that might affect his ability to fulfil his duties without harm to himself or to anyone else. It would appear from this that Toll’s concern only extends to its direct employees and not others who may work in the warehouse.
[114] A true commitment to the capacity of those in its warehouse to fulfil their duties without harm to themselves or to anyone else must extend beyond those directly employed if the true purpose of the pre-employment medical is about the welfare of the employee and others.
[115] I have considered the statements Mr Ellis was said to have made to the ambulance attendant. These comments, as reported by Mr Dempster, were entered into the Toll IMS data base. I accept that Mr Dempster honestly reported what he believes he heard. That report suggests that what Mr Ellis said to the ambulance driver was:
I normally keep moving and when I get home I have a bath and rub some deep heat on it and it comes good.
20 years ago the doctors told me if I kept doing what I was doing for work that I wouldn’t be able to walk. So that’s why I changed jobs and moved into something else.
I have a problem with my disc in the lower back. 14
[116] It is not clear from the report in IMS if the other words are what Mr Ellis actually said or contextualisation by Mr Dempster.
[117] The statements said to have been made by Mr Ellis to the ambulance attendant are not dissimilar to what he has maintained generally - if his back gets sore he treats it with deep heat and a bath and he was told many years ago that he should not continue to work as a labourer. His description of the injury has varied on a number of occasions. My comments on this above are relevant.
[118] I accept that Mr Ellis said the words reported, or similar words, to the ambulance attendant. I also accept that he was given a puffer for the pain by the ambulance attendant. I do not know what influence the pain medication may have had on Mr Ellis. In any event these words by Mr Ellis do not change any of my findings.
[119] It is not clear to me if the pre-employment medical form was given to Mr Ellis to complete prior to attendance at the medical examination, and if so with how much time, or if it was given to him that day. There is no evidence that any additional instructions for filling out the form are supplied to a prospective employee. On this basis I accept Mr Ellis’ statement that he probably did not have enough time to think of and include everything on the form.
Harsh, unjust or unreasonable?
[120] In all of the circumstances I find that the dismissal of Mr Ellis was harsh, unjust or unreasonable.
[121] Even if I were wrong and there is a valid reason for the termination of the Applicant’s employment, that the concern for the health and welfare of employees and those they work with is only extended to direct employees of Toll at the warehouse, as evidenced by the reason for the pre-employment medical form, would lead me to conclude that the termination of employment in this case was harsh, unjust or unreasonable.
Remedy
[122] Section 390 of the Act states:
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[123] Section 390(3) of the Act requires that reinstatement be considered before the consideration of any other remedy.
[124] In this matter the Applicant seeks reinstatement.
[125] The requirement of s.390(3) is that I should not order compensation unless I am satisfied that reinstatement, as sought by the Applicant, is inappropriate.
[126] Toll submits that the employment relationship has broken down irretrievably due to the lack of integrity displayed by Mr Ellis.
[127] Mr Ellis has a very good work record with Toll. He has been subject to a verbal warning related to arguing with a truck driver in 2007. Otherwise there appears to be nothing to indicate a troublesome work record. Mr Dempster gave evidence that he considers Mr Ellis to have been honest at work in the 10 years or so that he has known him. Mr Dempster personally did not agree that Mr Ellis’ employment should be terminated although he supports the decision of the Respondent. Mr Dempster would have managerial control over Mr Ellis should he be reinstated.
[128] On the basis of the evidence I do not consider that the employment relationship has broken down to the extent that reinstatement is inappropriate on this ground.
[129] The Respondent further submits that
the key question to address if reinstatement is to be considered is whether the tribunal can be satisfied [that Mr Ellis] is indeed fit to perform his job without risk, and with regard to that...we do request strongly that should an order for reinstatement be made, it would be subject to a successful independent medical assessment with direct reference to the inherent requirements of the position from which he left. 15
[130] Mr Ellis injured his back at work. His claim for workers’ compensation was accepted. He underwent medical treatment and received a certificate of capacity to return to work on a return to work plan from 12 March 2012. He returned to work on 13 March 2012 (12 March was a public holiday). It was on this day he was suspended while an investigation took place.
[131] Mr Ellis has now subsequently received a certificate of capacity issued by his treating doctor to return to full time work. 16 On the basis of the certificate of capacity there is no reason that any order for reinstatement should be subject to an independent medical assessment. There is no basis to assume that the medical clearance provided by Mr Ellis’ treating doctor is not sufficient. Had Mr Ellis not been suspended or dismissed there is nothing to suggest that Toll would not have accepted the medical certificate of capacity as at 11 May 2012.
[132] In Qantas Airways Limited v Meyer 17a Full Bench of the AIRC said:
In this matter it was necessary for the Commissioner to have formed a positive view or conclusion that an order under s.170CH(3)(a) was appropriate. To do so, the evidence needed to establish that Mr Meyer, in a practical and realistic way, was able to return to the position of a Ramp Services Officer. In this case the evidence was that he lacked the capacity and ability to do that job. In those circumstances we are unable to see how it could be said to be appropriate to reinstate him in that former position. In doing so the Commissioner was in error. 18
[133] In that matter the Commissioner had made an order for the reinstatement of Mr Meyer when it was clear he had no capacity to do the work of the position he had occupied prior to his dismissal. The incapacity of Mr Meyer continued to exist post his dismissal. That is not the case here.
[134] In this matter the evidence before the tribunal is that Mr Ellis does have a certificate of capacity to undertake the work he performed prior to his dismissal.
[135] There is no evidence to suggest that reinstatement is inappropriate because of Mr Ellis’ capacity to undertake the work required. His medical clearance is unambiguous.
[136] I have, in all of the circumstances, determined that there is no basis on which I could find that reinstatement is inappropriate. I shall therefore issue an order for the reinstatement of Mr Ellis. Such reinstatement is to occur within 14 days of the making of the order.
[137] Under s.391(2) of the Act I consider it appropriate to make an order to maintain continuity of service and the continuous service of Mr Ellis with Toll.
[138] In accordance with s.391(3) I also consider it appropriate to order that Toll should pay to Mr Ellis an amount to compensate for lost remuneration. That amount should be an amount based on the amount Mr Ellis would have earned had he remained employed by Toll on the return to work plan that was to be put into place on 13 March 2012 less the notice period already paid. It should be assumed that that plan would have operated until 15 May 2012 when Mr Ellis received a certificate of capacity for work.
[139] Toll and Mr Ellis’ representative are to confer as to the precise amount. Should agreement not be reached either party may request the matter to be relisted for further submissions on this point.
COMMISSIONER
Appearances:
D Mujkic of the National Union of Workers for the Applicant.
M Smith of the Respondent.
Hearing details:
2012.
Melbourne:
July 5.
1 Exhibit A3, attachment NE9.
2 Exhibit A1, paragraph 60.
3 Exhibit R3, attachment 2.
4 Exhibit R3.
5 Edwards v Justice Giudice and others [1999] FCA 1836, at [7], (1999) 94 FCR 561, 565.
6 King v Freshmore (Vic) Pty Ltd, Print S4213, at [24].
7 Exhibit A3, attachment NE9.
8 See evidence of Matthew Smith, above.
9 Exhibit R3, attachment 1.
10 Exhibit A3, attachment NE2.
11 Exhibit R3, attachment 3.
12 Exhibit R3, attachment 5.
13 Exhibit R4, paragraph 16.
14 Exhibit R3, attachment 2.
15 Transcript PN1035.
16 Exhibit A3, attachment NE10.
17 PR946584 (13 May 2004).
18 PR946584 at [33].
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