Pero Grujicic v Lineage Aust Trs Pty Ltd
[2024] FWC 3526
•18 DECEMBER 2024
| [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 temperature is approximately zero degrees, and less time in the freezer, where the temperature is down to minus 22 degrees.[7] The Agreement specifies that when working in the freezer, workers can have a 10 minute warm break every hour.[8]
In August 2023, Mr Bradley O’Shea commenced as General Manager of the Respondent’s operations in Cannon Hill and Hemmant.[9] In November 2023, Mr O’Shea noted that the Applicant’s medical certificate and supporting information was not up to date.[10] Mr O’Shea met with the Applicant to discuss his current rehabilitation arrangement. Mr O’Shea stated that the purpose of the meeting was to obtain up to date medical evidence and “understand the medical prognosis for Pero’s return to normal duties.”[11] During the meeting, Mr O’Shea requested that the Applicant make an appointment to see his treating physician and obtain a medical assessment.[12]
It is unclear exactly what the Applicant told his treating physician, Dr Adam Frankel, General Surgeon.
Dr Frankel produced a one-page letter addressed to Mr O’Shea on 8 December 2023 (“The First Letter”). The letter reads:
For some time, Pero was restricted in his ability to perform long hours but he now seems fit for five days a week and I would encourage you to engage him on that basis now.
He is unable to eat in a traditional fashion and he is restricted to eating smaller meals 5-6 times a day and hence, I would be grateful for your understanding in terms of his requirement for a slightly unusual pattern of breaks throughout the day. As a result of the surgery, he also has a permanent inability to put weight on and his body fat percentage is quite low. This means he is very susceptible to working in cold environments, which I understand is a necessary requirement in your workplace. I would suggest that he should not be exposed to a cold environment for longer than fifteen minutes at a time.
These will be longstanding changes that are required but I trust they will only be of minor inconvenience in the workplace and I can reassure you that they are necessary as a result of the medical condition that I have been treating him for.[13]
(emphasis added)
Mr O’Shea wrote to Dr Frankel on 29 January 2024 to seek clarity on the statements made in the letter. Mr O’Shea asked:
I note in your letter you indicated, Pero 'should not be exposed to a cold environment for longer than fifteen minutes at a time', can you please further clarify exposure to cold environment, more specifically:
· Can Pero Grujicic work 7.6 hours per day 5 days a week in a cold environment at 0 degrees?
· Can Pero Grujicic work 7.6 hours per day 5 days a week in a freezer environment at minus 20 degrees? NB: This work entails working in the freezer for 1-hour intervals followed by 10 minute warm breaks where workers can access a warm room.[14]
The response from Dr Frankel dated 28 February 2024 (“the Second Letter”) states:
Pero has recovered from his treatment physically to the point where he is fit enough to
work 5 days a week at 7.6 hours per day. However, it is difficult to state with any certainty exactly how long he could last in 0 or -20C environments. As previously described, because of his treatment, he is susceptible to cold and should not be expected to work under the same conditions as your other employees. This situation will continue
indefinitely. I would suggest a trial of 15 minutes followed by a brief warm break and then increase from there as able.[15]
(emphasis added)
On 28 February 2024, Mr O’Shea and the Applicant met and discussed the Second Letter. The Applicant was provided with a copy of the Second Letter from Dr Frankel.[16] The Applicant was advised to get a medical clearance from Dr Frankel.[17] As Dr Frankel is a specialist in the public health system, there is a significant waiting time for an appointment. The earliest appointment the Applicant was able to secure was in June 2024.[18]
On 8 March 2024, the Respondent sent a letter requesting a meeting for 12 March 2024 to discuss the medical report and potential outcomes. The Applicant declined to attend, stating that he was “not in the right headspace”.[19] On the same day, the Respondent received a work capacity certificate from the Applicant stating that he was suffering from depression/anxiety and that he was not able to work until the 7 April 2024.[20]
In the meantime, Mr O’Shea made enquiries with the operations manager of the Hemmant site to see if there were any forklift or picker/packer roles available.[21] The Hemmant site is an ambient temperature facility. The operations manager advised that there were no roles available due to lower volumes in the cooler months.[22]
On 16 April 2024, Mr O’Shea sent the Applicant a show cause letter. The letter states that the Respondent is considering terminating the Applicant.[23] Relevantly, the letter refers to Dr Frankel’s letters and summarises the contents of those letters as follows:
Reports from Dr Frankel dated 8 December 2023 and 28 February 2024 indicates the following:
· You have previously been on restricted duties, working reduced hours due to cold environment intolerances.
· You are currently fit to work full hours (5 days per week, 7.6 hours per day), with restrictions to time spent in specified cold environment temperatures.
· You are not able to perform the full inherent duties of your role as a Grade 4 Storeworker without the following restrictions indefinitely:
· Work longer than 15 minutes at a time in cold exposure environments between -20degree Celsius (freezer) to 0-degree Celsius (chiller) temperatures.
· Frequent meal breaks up to 5-6 times per day.[24]
(emphasis added)
The letter goes on to states that the company is not available to accommodate the restrictions above:
With regards to the medical assessment which confirms that you are unable to return to your pre-injury duties and safely perform the inherent requirements of your role as a Storeworker indefinitely, the Company has also given consideration as to whether there are reasonable accommodations that could be made. The Company has assessed that for operational reasons, the restrictions with working in a cold environment cannot be accommodated. For example, it would not be practicable to take frequent breaks every 15 minutes from the freezer during shift to access a warm room. The Company also took into consideration an alternative role in our convenience operations and due to low volumes heading into our cooler months, it would not be practicable to open a new position. Such operational arrangements would also create an unacceptable financial cost to the business.[25]
The letter concludes by stating that the Respondent had made “preliminary decision” to terminate the Applicant’s employment. The Applicant was invited to provide a response by 19 April 2024.[26]
The Applicant’s representative requested an extension of time to provide a response, which was granted. On 24 April 2024, the AWU provided a response on behalf of the Applicant. The Applicant’s response to the question of fitness for duty was as follows:
After completing my treatment, I began to slowly regain my strength and returned to work. I had hoped that due to my years of service, there would be a level of empathy and understanding towards what I had to endure during my treatment and recovery. I don’t believe the way I am being treated in this situation is fair. I cannot disregard what my doctor advises me to do, and what conditions he recommends. I understand that making certain accommodations can be difficult, however I don’t believe that the recommendation from my doctor is unreasonable.[27]
I note the AWU did not request that the Respondent send the Applicant to an Independent Medical Examination (IME).
On 29 April 2024 a meeting was held between Mr O’Shea, Ms Kirsty Astill of Human Resources for the Respondent, the Applicant and Mr James Downie of the AWU. The Respondent stated that medical evidence presented to them meant the Applicant could not return to his preinjury work duties and as such he could not fulfill the inherent requirements of the role. They further asserted that they had reviewed redeployment options and were unable to identify any suitable vacancies.
Following the meeting, Mr O’Shea sent a letter terminating the Applicant’s employment. The reason stated for the termination was as follows:
The reason the Company has taken this decision is that, based on the medical reports available to us from Dr Adam Frankel (General Surgeon), you do not have the physical capacity to meet the inherent requirements of your job as Storeworker, and there is no evidence that you will be able to safely carry out your pre-injury duties as a Storeworker in the foreseeable future.[28]
The Applicant lodged his unfair dismissal application on 8 May 2024.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:
(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);
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[29] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[30] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[31]
The stated reason for dismissal was that, according to the Respondent, Dr Frankel’s medical reports indicated that the Applicant did not have capacity to meet the inherent requirements of the role of Storeworker, and that there was no evidence that the Applicant would be able to carry out his pre-injury duties in the future.
Inherent Requirements of the Role
The Applicant submits that the Applicant had been able to conduct the role prior to being stood down and that working in the cold was not in fact an inherent requirement of the role.[32]
I note that the Applicant had been performing duties on the forklift in the Chiller facility and Freezer room prior to being stood down. He was working five days a week for eight hours a day with a 15-minute break every three hours as well as half an hour lunch break.[33] However, the Respondent does not appear to be disputing that the Applicant had been performing these duties in accordance with his suitable duties plan. Rather, the concern raised by the Respondent was that updated medical evidence was needed to ensure that the Applicant was not acting against medical advice.[34] I see this as an entirely reasonable concern. The Applicant had a serious illness requiring extensive surgery. It is prudent for an employer in these circumstances to seek updated advice as the employee progresses through their recovery. If that advice contradicts the duties the employee is currently performing, then those duties should be re-evaluated.
The Respondent noted that under the Agreement, a Grade 4 Storeworker is required to perform the following duties, in addition to Grade 3 duties:
(a) Identifying and selecting product for order picking;
(b) Checking use by dates;
(c) Maintain Records;
(d) Liaison with stock controller;
(e) Processing damaged stock;
(f) Checking stock inwards and outwards against documents;
(g) Contact with clients;
(h) Duties incidental or peripheral to the above; and
(i) Operate VDU for information, input and retrieval of information.[35]
The Agreement does not note working in cold as being a duty of a Grade 4 Storeworker, or any other Grade Storeworker. However, in other provisions the Agreement provide an allowance for employees working in cold. The allowance is payable for employees who regularly perform work where the warehouse temperature is below 4 degrees Celsius.[36] The Respondent relies on this provision to support the argument that working in cold is an inherent requirement of the role.[37]
The Respondent’s “Job Dictionary” provides a position summary for the position of “Put Away and Retrieval”[38]. The Respondent states that this broadly aligns with the Applicant’s Storeworker role. In the position summary, it is noted that the location of the duties performed include in the warehouse freezer.[39]
The Applicant’s argument is legalistic. It is that “if working in cold storage was a ‘inherent requirement’ then it would have been included within the definition of a Grade 4 employee in the Agreement and it is not.”[40] It is true that the Agreement can express inherent requirements for the role, but it does not follow that the inherent requirements of the role must be expressed in the Agreement. The Applicant cites Gaudron J in Qantas Airways Ltd v Christie (1998) 193 CLR 280. Her Honour expresses the test for whether a requirement is an inherent requirement as follows:
A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.[41]
The Agreement classification structure and Job Dictionary are not comprehensive documents, they are merely indicative of skill requirements. Although the requirement for an employee to tolerate working in cold is not expressed as a requirement of the role, it seems to be an inescapable conclusion that such a tolerance is necessary when employed as a Storeworker in a cold storage facility. All of the Applicant’s duties were performed inside, the majority being performed in temperatures of approximately zero degrees. The Respondent operates temperature-controlled warehouses in various locations, many of which are refrigerated.
However, I am not prepared to say that a tolerance for working in cold is an inherent requirement for Storeworkers employed by the Respondent. If the Applicant had been redeployed to one of the Respondent’s ambient temperature warehouses as a Storeworker, then the Applicant would still perform the same duties, but without needing to tolerate cold. However, Applicant was not able to be redeployed to the ambient temperature warehouse in Hemmant. Therefore, it was not possible for the Applicant to perform the inherent requirements of his role anywhere else.
Medical Evidence regarding capacity
The Applicant argued that the evidence does not provide a valid reason for dismissal and that the Respondent should have conducted the trial of 15 minutes followed by a warm break, building up over time, as suggested by Dr Frankel.[42]
The medical evidence is limited to two letters from Dr Frankel, as well as what the Applicant claims Dr Frankel told him.
The Applicant himself indicated to Mr O’Shea that he felt fit enough to perform his duties in the Chiller room, but after fifteen to twenty minutes in the Freezer room he starts to feel “sort of strange”.[43] However, with good reason, the Respondent was not willing to rely on the Applicant’s subjective assessment of his fitness for duty. Ultimately, as the Respondent is responsible for the Applicant’s safety at work, it is their risk to bear, not the Applicant’s.
The Applicant points out that Dr Frankel did not clearly state that the Applicant could only work 15 minutes at a time in cold environments.[44] This seems to be the Respondent’s interpretation of what Dr Frankel said. Dr Frankel’s exact words were:
“As a result of the surgery, he also has a permanent inability to put weight on and his body fat percentage is quite low. This means he is very susceptible to working in cold environments, which I understand is a necessary requirement in your workplace. I would suggest that he should not be exposed to a cold environment for longer than fifteen minutes at a time.”[45]
“[H]e is susceptible to cold and should not be expected to work under the same conditions as your other employees. This situation will continue indefinitely. I would suggest a trial of 15 minutes followed by a brief warm break and then increase from there as able.”[46]
The Respondent evidently made assumptions about what they thought Dr Frankel’s letters meant. Mr O’Shea stated in the hearing: “However, the dock is still cold, and that's sort of where we formed the view from that medical advice that the cold condition was not good for Pero's health, and that's what we tried to discuss with Pero at length.”[47] This is an extrapolation from what Dr Frankel stated and it does not match what the medical advice states.
The medical evidence does not provide clear evidence of incapacity. While Dr Frankel notes that the Applicant will be “indefinitely” susceptible to cold following the surgery, he does not provide a clear prognosis. Nor it is clear on the evidence before me that Dr Frankel has been advised of the Applicant’s duties and the time in which the Applicant is required to spend in the Chiller room or the Freezer chamber before writing his letters. The Respondent had asked if the Applicant was capable of working 7.6 hours per day for 5 days a week at 0 degrees or minus 20 degrees. In fact, the Applicant was not required to spend 7.6 hours per day in the freezer chamber. Additionally, Dr Frankel’s report does not state clearly what “cold” means. The Applicant argued that Dr Frankel was only referring to the Freezer, the Respondent interpreted the statement as meaning the entire warehouse.
The Respondent made no attempt to seek further clarification from Dr Frankel after the Second Letter, and instead relied on their own assumptions about the letter.
While the Respondent has good reason to be cautious, the letters of Dr Frankel are not clear evidence of incapacity, and they do not provide a valid reason for dismissal on the grounds of incapacity. I find that the Respondent substituted in their own opinion where the medical assessment was unclear, and that was inappropriate.
For the reasons outlined below, the appropriate course of action would have been for the Respondent to send the Applicant to an IME. This weighs in favour of finding that the dismissal was harsh, unjust and or unreasonable.
(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
The Applicant was provided with a show cause letter on 16 April 2024 indicating that the Respondent was considering terminating the Applicant on the basis that the Applicant would not be able to return to pre-injury duties.
The Applicant was given an opportunity to respond. The Applicant’s representative requested an extension for the due date for the response, and this granted.
On 24 April 2024, the Applicant’s representative provided a response.
This weighs against finding that the dismissal was harsh, unjust and or unreasonable.
I note that while the Applicant was given an opportunity to respond, he was not able to provide further medical evidence because he was not able to see his treating doctor in time. If the Respondent had arranged an IME, this would have provided the Applicant with an opportunity to respond to the question of incapacity by allowing him to be assessed by an independent specialist, and to be able to speak to the specialist and discuss his symptoms.
The Respondent believed that it was appropriate to send the Applicant to his treating physician, rather than an independent specialist. In these circumstances, employers should send employees to an IME instead.
Requiring the employee to make an appointment with their own treating physician is not always appropriate because it requires the employee to book an appointment, usually with a long wait time, and it means that it is not clear what information the doctor has been provided with. Additionally, the employee’s treating physician may tend to provide advice about treatment, instead of advice about capacity. These are distinguishable concepts.
When assessing an employee’s capacity after a period of protracted illness, the employer should send the employee to an IME. Any documents provided by the employee’s treating physician should be provided for review by the independent medical specialist. The employee should be provided an opportunity to speak with, and be examined by, the independent medical specialist. The questions put to the independent medical specialist should be clear and all relevant information about the employee’s work duties should be provided. It should be clearly stated that the report is required to assess the employee's capacity. The independent medical specialist should be asked to give a prognosis and if a definitive prognosis is not possible, the specialist should be asked to estimate the likelihood of the employee being able to return to full duties. The employee should be provided with a copy of the final report and it may be appropriate to have a meeting to discuss the contents of the report with the employee.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
There was no unreasonable refusal by the employer to allow the Applicant to have a support person.
This factor is a neutral consideration.
(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
The Applicant was not terminated for unsatisfactory performance.
This weighs neutrally.
(e) 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
The parties did not submit that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise did not have an impact.
(f) 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
The Respondent has dedicated human resources management staff. This is a neutral factor.
(g) any other matters that the FWC considers relevant.
A relevant factor in considering whether the Respondent should have followed the treatment advice of Dr Frankel prior to dismissing the Applicant. The Applicant’s argument is essentially that the Respondent relied on Dr Frankel’s letters as providing the reason for dismissal, but the Respondent did not follow the advice contained in those letters. I find this to be a relevant consideration.
Dr Frankel’s Second Letter stated: “I would suggest a trial of 15 minutes followed by a brief warm break and then increase from there as able.” The Respondent did not conduct this trial. The Applicant argued that the Applicant had been denied procedural fairness, as he had not been afforded with a chance to see if he was able to improve following the trial. I find that not conducting the trial was unreasonable. It was open to the Respondent to trial Dr Frankel’s advice, on a short-time basis. If the Applicant was not able to increase his time in the cold to a level which the employer could accommodate within two months, then he should have referred for an IME.
Another consideration put forward by the Applicant is harshness in the context of the Applicant’s personal circumstances. The Applicant has worked with the Respondent for 23 years with no formal disciplinary record. The Applicant is 56 years old and has limited formal qualifications. I find this weighs in favour of finding that the dismissal was harsh.
Conclusion
The dismissal was harsh and unreasonable. Therefore, I am satisfied the Applicant is entitled to an unfair dismissal remedy. I Order accordingly.
The matter will be programmed for hearing to determine the remedy.
DEPUTY PRESIDENT
Appearances:
A. Santelises appearing for the Applicant, from the Australian Workers’ Union.
A. Umanksy appearing for the Respondent.
Hearing details:
29 August and 17 September 2024
Brisbane
Hearing via Microsoft Teams
[1] Applicant First Witness Statement [1], [4].
[2] Form F3, page 7.
[3] Ibid.
[4] Ibid.
[5] Respondent Submissions [17].
[6] Statement of Bradley O’Shea [11].
[7] Ibid.
[8] Brisbane Distribution Lineage AUS TRS Pty Ltd Brisbane Distribution Operations Enterprise Agreement 2020 clause 4.3 (“The Agreement”).
[9] Statement of Bradley O’Shea [11].
[10] Ibid [12].
[11] Ibid [13].
[12] Ibid [14].
[13] Annexure PG-03
[14] Annexure BOS-5
[15] Annexure BOS-6
[16] Applicant First Witness Statement [11].
[17] Ibid.
[18] Ibid [11]
[19] Annexure PG-06
[20] Annexure BOS-8
[21] Statement of Bradley O’Shea [49].
[22] Ibid
[23] Annexure PG-06
[24] Ibid
[25] Ibid
[26] Ibid
[27] PG-07
[28] PG-08
[29] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[30] [2021] FWC 4 at 118.
[31] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[32] Applicant Submissions [10], [24].
[33] Transcript 17 September 2024 PN492
[34] Statement of Bradley O’Shea [41]-[44].
[35] Agreement clause 4.5
[36] Agreement clause 4.3
[37] Respondent Submissions [15]-[16].
[38] Annexure BOS-3
[39] Ibid, page 10
[40] Applicant Reply Submissions [13]
[41] Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295.
[42] Applicant Submissions [7], [24].
[43] Transcript 17 September 2024 PN511
[44] Applicant Submissions [26]
[45] Annexure PG-03
[46] Annexure BOS-6
[47] Transcript 29 August 2024 PN360
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