Pero Grujicic v Lineage Aust Trs Pty Ltd - [2024] FWC 3526

[2024] FWC 3526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Pero Grujicic
v

Lineage Aust Trs Pty Ltd

(U2024/5222)

DEPUTY PRESIDENT LAKE

BRISBANE, 18 DECEMBER 2024

Application for an unfair dismissal remedy – capacity – inherent requirements – doctor’s letters – dismissal harsh and unreasonable – remedy to be determined

Mr Pero Grujicic (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Lineage Aus TRS Pty Ltd (the Respondent).

A conciliation was held on 18 July 2024 and the matter was not resolved. The matter was listed for hearing on 29 August 2024 and 17 September 2024. The Applicant was represented by Mr Aaron Santelises of the Australian Workers’ Union (AWU). The Respondent was represented by Mr Albert Umansky, General Manager of Employee Relations and HR Policy for the Respondent.

Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as a business with more than 15 employees.

Background

The Applicant commenced work for a company that would be later acquired by the Respondent on 31 October 1996 and was employed most recently as a Storeworker (Grade 4) under the Brisbane Distribution Lineage AUS TRS Pty Ltd Brisbane Distribution Operations Enterprise Agreement 2020 (the Enterprise Agreement).[1]

The Respondent operates a cold storage site at Cannon Hill. This is the site where the Applicant worked. The site has a chiller facility, which is between zero and five degrees Celsius, and a freezer room, which is down to minus 22 degrees Celsius. The Applicant operated a forklift that would work in both areas. There are no other operations on the site.

In around July 2021, the Applicant was diagnosed with stomach cancer which required surgery.[2]

Due to the surgery, the Applicant was unable to attend work from July 2021 until December 2022.[3] In December 2022, the Applicant was offered a suitable duties plan which gave the opportunity for the Applicant to work temporarily with restrictions.[4]

This plan included limiting some physical tasks, a reduction of working hours and additional rest breaks of 15-minute breaks following 2 hours of work. The suitable duties plan was updated in March 2023 to provide for a gradual increase in hours of work.[5]

The work performed by the Applicant while on the suitable duties plan involved using a forklift to move pallets from the palletiser, which is in a chiller room, into either the Chiller facility or the Freezer chamber.[6] The Applicant spent the majority of his time working in “chiller” areas where the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pero Grujicic v Lineage Aust Trs Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 3526
Decision Date: 18 DECEMBER 2024

CaseChat Overview and Summary

The case of Pero Grujicic v Lineage Aust Trs Pty Ltd before the Fair Work Commission involves an application by Pero Grujicic for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Grujicic, who had worked for Lineage Aust Trs Pty Ltd for over 23 years, was dismissed after being diagnosed with stomach cancer and undergoing surgery, which resulted in him being unable to work from July 2021 to December 2022. Upon his return, Grujicic was given a suitable duties plan that allowed him to work with restrictions, including reduced working hours, more rest breaks, and limited exposure to cold environments due to his susceptibility to cold following the surgery. In November 2023, the new General Manager, Bradley O’Shea, requested updated medical evidence regarding Grujicic’s capacity to work. Grujicic’s treating physician, Dr Adam Frankel, provided two letters stating that while Grujicic was fit to work five days a week for 7.6 hours a day, he should not be exposed to cold environments for longer than 15 minutes at a time. Lineage Aust Trs Pty Ltd interpreted this to mean that Grujicic could not perform his duties as a Storeworker, which required working in cold environments, and dismissed him on this basis.

The legal issues before the Fair Work Commission included whether the dismissal was for a valid reason related to Grujicic’s capacity, whether Grujicic was notified of the reason and given an opportunity to respond, and whether the dismissal was harsh, unjust or unreasonable. The Commission found that while the reason for dismissal related to Grujicic’s capacity, the medical evidence was not clear enough to provide a valid reason for dismissal. The Commission noted that the Respondent should have sought an Independent Medical Examination (IME) instead of relying on Grujicic’s treating physician’s letters. The Commission also found that the dismissal was harsh in the context of Grujicic’s long service and personal circumstances. The Respondent did not conduct a trial of the working conditions suggested by Dr Frankel, which would have provided Grujicic with an opportunity to demonstrate his capacity to work under those conditions. The Commission concluded that the dismissal was harsh and unreasonable, and Grujicic was entitled to an unfair dismissal remedy.

The Fair Work Commission ordered that the matter be programmed for hearing to determine the remedy.

Orders