Peter Norman v Lion Dairy and Drinks Milk Limited

[2016] FWCFB 1887

[2016] FWC 840 [Note: An appeal pursuant to s.604 (C2016/2805) was lodged against this decision.] - refer to Full Bench decision dated 24 March 2016 [[2016] FWCFB 1887] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Peter Norman
v
Lion Dairy and Drinks Milk Limited
(U2015/7090)

DEPUTY PRESIDENT BARTEL ADELAIDE, 10 FEBRUARY 2016

Termination of employment.

Introduction and background

[1] Mr Peter Norman (the applicant) was dismissed from his position as Maintenance Technician (Fitter) at the Salisbury Plant of Lion Dairy and Drinks Milk Limited (the employer or the respondent) on 15 April 2015. The letter of termination of the same date stated that the applicant was no longer able to perform the inherent requirements of his position. 1

[2] The applicant had a skydiving accident in February 2014 in which he fell approximately 10 metres and sustained fractures to his left and right femurs and multiple facial fractures. He did not return to work after the accident. He maintains that there was no valid reason for his dismissal because he was fit to resume his normal duties in March 2015 and that he was denied procedural fairness.

[3] The respondent argues that its decision to dismiss was based on independent medical evidence which concluded that the applicant could not perform his pre-injury position. The decision to dismiss was taken after giving the applicant an opportunity to provide information in support of his continued employment and after the employer had held the applicant’s position open for more than 12 months.

[4] The applicant is a person protected from unfair dismissal within the meaning of s.382 of the Fair Work Act 2009 (the Act) and there are no jurisdictional impediments to the determination of his application.

[5] The applicant was represented by Mr Tim Hardie, Industrial Officer for the Australian Manufacturing Workers Union (AMWU). The applicant holds a firm belief that he was fit to return to his position when he was dismissed. I accept, and it is not suggested otherwise, that he was extremely diligent in his rehabilitation and highly motivated to return to his position. I consider that aspects of the applicant’s evidence were coloured by his disappointment over the dismissal and there were some inconsistencies with detail, but generally I found him to be a genuine and credible witness.

[6] The applicant called Professor Jaarsma, his orthopaedic surgeon. Professor Jaarsma prepared a report in October 2015 detailing his history with the applicant and his assessment of his condition. A witness statement for Stuart Gordon, AMWU organiser, 2 was admitted by consent and he was not required for cross examination. Mr Gordon had some involvement with the applicant in the process leading to his termination and attended the termination meeting on 15 April 2015.

[7] The employer was represented by Ms Preston of counsel. The following witnesses gave evidence:

• Dr Geoffrey Graham, Occupational Physician, who examined the applicant on 5 March 2015 and prepared two reports for the respondent;



• Martin Draper, Maintenance Leader at the Salisbury Plant and the applicant’s line manager;



• Eva Pool, People and Culture Leader, responsible for manufacturing sites, including the Salisbury Plant.



• Gabrielle Liston, the Site Leader at the Salisbury Plant.

[8] The evidence of Dr Graham and Professor Jaarsma is considered in detail later in the decision. The evidence of Mr Draper, Ms Pool and Ms Liston is accepted unless otherwise specified.

[9] The applicant commenced employment in May 2009. His performance was not a matter that informed the employer’s decision to dismiss. The employer regarded the applicant as a very diligent and skilled tradesperson, albeit that it held some concerns about his attention to certain ancillary duties, such as sweeping the workshop floor and data entry. The applicant has the support of his work colleagues, who provided letters attesting to his work ethic and competence.

[10] In the period following his accident the applicant received “salary continuance” for a period of time in accordance with clause 26 of the Lion Dairy & Drinks Salisbury Engineering Services Enterprise Agreement 2013 (the Agreement). 3 The salary continuance ceased in July 2014 and the applicant subsequently received income protection payments under his superannuation scheme.

[11] Mr Hardie made submissions to the effect that the employer was in breach of the salary continuance provisions of the Agreement but I am not satisfied that this is correct. Salary continuance can extend beyond an initial period of 3 months only by approval of the employer, which was absent in this case. I accept that the clause does contemplate, subject to the employer’s approval, that an employee may receive full and partial salary continuance for a period of absence of up to 24 months due to a non-work related illness or injury and also contemplates that an employee may return to work on reduced hours.

[12] The applicant had some initial problems with his left femur healing appropriately. As a result, in October 2014, Professor Jaarsma removed a metal plate and replaced it with a pin and locking screws. Otherwise the applicant’s legs and facial injuries healed appropriately and the correction to the left femur was successful. Post dismissal, the applicant had a minor procedure to remove the distal locking screw from his left femur that had been causing some local irritation.

[13] The following is a chronology of key events:

23 February 2014: Applicant’s accident.

19 February 2015: Employer requests that Dr Graham undertake a medical assessment of the applicant and provide recommendations on his capacity to perform his role.

5 March 2015: Dr Graham examines the applicant.

11 March 2015: Dr Graham’s report (“the initial report”) provided to the employer.

25 March 2015: Meeting with the applicant Mr Draper and Ms Liston. Initial report provided to the applicant. This was to be a show cause meeting, but was adjourned after the applicant presented a certificate from Professor Jaarsma clearing him to return to work on 30 March 2015.

27 March 2015: Employer requests a further report from Dr Graham in light of Professor Jaarsma’s clearance.

30 March 2015: Dr Graham provides a further medical report (“the supplementary report”) to the employer.

1 April 2015: ‘Show cause’ meeting with the applicant, Mr Draper and Ms Pool. The applicant is given a copy of the supplementary report. A ‘show cause’ letter is provided to the applicant, giving him until 7 April 2015 to provide further information.

7 April 2015: Applicant responds to show cause letter.

9 April 2015: Employer requests that the applicant provide permission to speak with Professor Jaarsma.

10April 2015: Applicant responds to employer request.

15 April 2015: Further meeting attended by the applicant, Mr Gordon, Mr Draper, Ms Liston. Ms Pool attends via telephone conference call. The applicant’s employment is terminated.

[14] Post-dismissal, the applicant obtained casual employment with Weldfab Engineering Pty Ltd (Weldfab) for a period of 28 days in July and August 2015, during which time he performed fitting and welding duties at Coca Cola and Schweppes production facilities. He worked for Weldfab on another occasion for a shorter period and also performed casual work at the Murray Vale Homestead over a period of 12 months. References from Weldfab and Murray Vale Homestead indicate that the applicant was held in very high regard and that he fulfilled all the requirements of the work without issue. 4

[15] As at the date of the hearing the applicant was in receipt of unemployment benefits. He stated that he has had difficulty obtaining employment because of his age and location. 5

The medical evidence

Dr Graham’s initial report

[16] Ms Janine Smith, Safety & Wellbeing Advisor at the Salisbury Plant, requested that Dr Graham provide recommendations concerning the applicant’s capacity to perform the inherent requirements of his role. 6 Ms Smith attached a list of the applicant’s pre-injury duties; a list of the most common tasks he performed as well as a copy of the respondent’s “Job Dictionary”. The latter document sets out the critical physical demands and the frequency of those demands in relation to each task performed.

[17] Dr Graham prepared a report on 11 March 2015. 7 He stated that the applicant “… is experiencing discomfort in the right leg after prolonged weight bearing and more significant problems with the left leg, including swelling and soreness around the knee and stiffness after sitting. Despite this, he carries out many of his normal activities at home including maintaining a 30 acre property.” Dr Graham also reported that the applicant had said that there were a number of physical requirements that he could not undertake, including working in awkward positions, squatting and climbing ladders and that he could not complete all tasks required of a maintenance fitter.

[18] Dr Graham observed muscle wasting in both legs; reduced bilateral internal rotation of the hips; and flexion in the left knee of 110^o and of the right knee of 130^o.

[19] In response to specific questions posed by the respondent, Dr Graham reported as follows:

“1. Please provide details of current clinical findings, diagnosed medical condition and prognosis for Peter.

My clinical findings have been detailed in the report. He has suffered fractures of both femurs as well as fractures of facial bones.

The prognosis is very difficult to suggest. He is gradually improving but it is not possible to say how far he will continue to improve. In addition, there must be a significant degree of degenerative change in the hips and knees which will limit recovery.

2. Is the condition considered to temporarily or permanently prevent Peter from performing the inherent requirements of as a Maintenance Fitter?

At the present time he is unfit to perform all the inherent requirements of the job of a maintenance fitter. He is continuing to improve but it is not possible to say if he will improve to a level which he can undertake all normal duties. He feels confident that he will achieve this but there must be some significant reservations.

3. What is his current capacity and/or any restrictions to perform all occupational requirements of his role as Maintenance Fitter in a safe, productive, sustainable, durable basis?

I would recommend that he not work in any safety critical situation where balance and stability are important. He should avoid working in awkward positions and avoid squatting. I would also recommend that he avoid climbing ladders and avoid frequent use of steps or stairs.

4. If any restrictions or reduced functional capacity are noted are these of a temporary or permanent nature?

As indicated previoiusly (sic), it is not possible to say whether they are temporary or permanent. It is hoped that he will improve further but this cannot be guaranteed.

5. Will Peter be able to perform the inherent requirement of the role as Maintenance Fitter in a safe, productive, sustainable and durable manner in the near future or is he permanently unfit for this role?

It is unlikely that he will be able to perform all the inherent requirements of the role in the near future.

6. What is the likelihood of risk for further injury for Peter? Can you please comment on any risk, and recommendations to reduce foreseeable risk?

The likelihood of risk of further injury is not great. His current problem is related to a lack of ability to get into awkward positions and soreness with activities.

7. Can you please outline any additional recommendations or comments with regards Peter’s capacity to safely, productive, sustainably and durably perform his role?

I have no further recommendations or comments. I believe that Peter can only continue his exercise program and physiotherapy treatment, monitoring his improvement.”

[20] In his evidence to the Commission, Dr Graham identified the major issue affecting the applicant’s capacity to undertake his position was degenerative change in his knees, and to a lesser extent some reduced rotation in his hips. The degenerative change was regarded as presenting a risk to the applicant in relation to a number of the physical requirements of his position. Of particular concern to Dr Graham was the potential for the applicant to suffer sharp pain and a feeling of instability in the knee when performing tasks where balance and stability are important.

[21] It was his opinion that the applicant was at risk if he returned to his pre-injury role. In this regard Dr Graham did not dispute that the applicant may be able to perform his role for a limited period of time, but considered that sustained performance would likely result in further degenerative change to his knee. He stated that his conclusion in the initial report, that there is a low level of “risk of further injury”, related to the injuries suffered by the applicant in the sky diving accident. He clarified that “the near future” was a reference to the next three months.

[22] Dr Graham’s assessment of the applicant included observing the applicant’s gait, which he described as “… an antalgic gait, aiming to minimise discomfort”. Dr Graham undertook a physical examination of the applicant’s hips and knees, and considered two radiology reports dated April 2014 of the applicant’s right knee and right hip and femoral/knee (the April 2014 reports). 8

[23] The applicant’s own view that he didn’t think he could return to the job and his statement to Dr Graham that taking care of his property was taking twice as long as it used to, were also given some weight in Dr Graham’s assessment.

[24] By email on 27 March 2015, 9 Ms Smith requested a further opinion from Dr Graham in light of Professor Jaarsma’s clearance. The request was framed as follows:

“…

Given your March 5 assessment report we have serious concerns about [Professor Jaarsma’s] clearance and [the applicant’s] ability to successfully return to work. Could you please confirm your opinion on Peter Norman’s fitness for work and whether he would have improved sufficiently in 3 weeks to be fit to return to normal duties? Please advise if you need to see Peter again.”

[25] On 30 March 2015 Dr Graham provided the supplementary report which stated that:

“At the time of that consultation on 5 March 2015 Mr Norman stated to me that he was accepting that he could not undertake all the requirements of his job. He felt that he could not work in awkward positions or climb ladders. He indicated that he had difficulty with squatting and difficulty also with steps and stairs. He also suggested to me that he may undergo further surgery, possibly in April to remove screws in the left leg.

Given this I am somewhat surprised at the certificate provided by Professor Jaarsma suggesting that Mr Norman will be fit to resume work on 30 March 2015. I would assume that he is indicating a fitness to return tosome form of work but I would not imagine that he is considering Mr Norman fit to return to his full duties as a maintenance technician at that time.

I emphasise that I have not seen Mr Norman since 5 March 2015 and my further opinion is based entirely on that consultation with Mr Norman. I would however not expect his condition to improve to that extent in the three weeks since the consultation.” 10

[26] Dr Graham indicated that he did not think it necessary to re-examine the applicant, given the short period that had elapsed since he last saw him and the fact that degenerative change would not be reversed with the passage of time. Under cross-examination, Dr Graham stated that he “backed his own judgement” concerning the applicant’s capacity and saw no need to discuss the applicant’s condition with Professor Jaarsma or any of the health professionals involved in the applicant’s rehabilitation. Dr Graham also stated that he did not have the right as an independent medical examiner to require the applicant to attend for a further examination. 11

Professor Jaarsma’s evidence

[27] Professor Jaarsma provided a report dated 22 October 2015 12 detailing his involvement with the applicant, the surgical procedures undertaken and his assessment of the applicant’s progress.

[28] In relation to his consultation with the applicant on 25 March 2015, upon which Professor Jaarsma provided the clearance that he could return to work, he reported as follows:

“Mr Norman returned to my clinic on the 25th March 2015 now more than five months after the revision procedure to his left femur. He explained briefly the requirements of his work as a mechanical maintenance technician but also explained to me that he was doing significant work on his farm which included maintaining and repairing trailers and cars. He explained that this included bending, lifting and kneeling. He also indicated that since his previous visit on the 28th January he had put himself on a regime and after initially being quite tired he was now doing this work for 10 hours per day. During the same visit on the 25th March 2015, he clearly indicated that the work he was doing at home for 10 hours per day was closely mimicking his work as a mechanical maintenance technician.

The x-rays performed on that day demonstrated significant healing of the left femur fracture without signs of loosening, instability or infection.

On clinical examination Mr Norman had achieved a functional range of motion although one of the distal locking screws was still causing some mild local discomfort.

Since the fracture had now healed sufficiently and Mr Norman was able to do work at home for 10 hours per day similar to his work requirements as a mechanical maintenance technician, he agreed that he was ready to go back to work and I cleared him to start his work again.

I would like to reiterate that a clearance to restart work from an Orthopaedic Surgeon is normally based on the fact that the injury has now sufficiently healed, that the patient is not a danger for his environment and that the injury has healed to an extent where he is no danger to himself. This means that there is no further risk of refracturing or negatively affecting their healing process.

With regard to the mildly proud distal locking screw of the left femoral nail, we agreed that this was not holding Mr Norman back from restarting his work although he would appreciate at some stage to get the screw removed in a short day procedure. Mr Norman indicated that if possible he would like to get this done during one of his four rostered days off in his normal working schedule. Removal of the screw is a simple day procedure which takes the surgeon five minutes and would allow the patient to go home right after the surgery. Ideally the patient would need one day off after this surgery.”

[29] Professor Jaarsma had a further consultation with the applicant on 21 October 2015, where the applicant confirmed that he had been working in some temporary jobs and also working his 10 hour days at home. Professor Jaarsma noted that the applicant “… has a full range of motion and 120 degrees flexion in both knees, full extension, internal rotation of 20 degrees in the left hip and 10 degrees in the right hip, external rotation of 40 degrees in the left hip and 30 degrees in the right hip. He has full abduction and adduction and no pain or sensory loss in both lower extremities.”

[30] The focus of Professor Jaarsma’s report and examination of the applicant on 25 March 2015 was the risk of injury to the applicant’s femurs, which he assessed as nil. However in assessing the applicant as fit to return to work, Professor Jaarsma took into account the applicant’s advice of the nature and extent of the work he was undertaking at home; the radiology; the applicant’s mental state and desire to return to work; and that he was in no pain. Professor Jaarsma had a broad understanding of the applicant’s work in terms of the time spent standing, bending, lifting, sitting, driving and climbing. 13

[31] Professor Jaarsma disagreed with Dr Graham’s conclusion that the applicant had clearly observable muscle wasting in his right leg 14, noting that the applicant’s right leg was larger than the left leg due to significant callous formation associated with the healing process. He also disagreed with Dr Graham’s assessment that the applicant had an “antalgic gait” (i.e. walks as if in pain). It was Professor Jaarsma’s view that the applicant may have been limping due to scarring, but this would not preclude him from performing any duties.

[32] In commenting on Dr Graham’s observation that the applicant was experiencing discomfort in his right leg after prolonged weight bearing, Professor Jaarsma noted that the applicant had the same surgical procedure on the right leg and stated, “… that’s something that will work out and hopefully become better during his work, which means that you cannot expect somebody who’s been off work to be in full capacity of running around. If you ask somebody - and this is what I struggle with on regular occasions, to be 100 per cent, it’s not going to happen.” 15

[33] He gave the analogy of an AFL player who suffered a trauma or injury. Professor Jaarsma may clear the player as fit to return to football because there is no longer any injury or risk of further injury, but it is up to the coaches and trainers to determine if and when the player returns to the first team. 16

[34] In relation to the degenerative change in the applicant’s left knee, Professor Jaarsma stated that it was consistent with the level of degenerative change he frequently observed in people of the applicant’s age who have performed similar physical work for many years. In his experience these workers are able to continue to perform their work satisfactorily. It was also Professor Jaarsma’s view that there was too strong a focus on the applicant’s degenerative changes in Dr Graham’s reports and that the level of degenerative change was not significant. In answer to a question as to whether the applicant suffered from arthritis in his knees, Professor Jaarsma stated: 17

“If you very, very carefully look at it he has - and this is what I did - very minimal arthritis in both his hips and his knees, and maybe mild, I think - I’m not happy and I don’t think it’s correct, the advance stages but he does have some mild arthritis in his left knee. If you then go back to all the X-rays, this hasn’t changed over the course of his treatment at Flinders Medical Centre. So basically on day one before the trauma, his degenerative changes were the same as they are now, which means that any worker, 50 year old manual worker who gets in an accident will probably lose his job then because he has degenerative changes from all the hard work that he’s done before.”

[35] Professor Jaarsma also noted that only three of the four joints in the left knee showed any evidence of degenerative change. 18

The applicant’s evidence on his capacity

[36] The applicant was attending the workplace from time to time and would talk with Mr Draper about his progress and what he had been doing on his property. He stated that in early 2015 he made Mr Draper aware that he envisaged a return to work in April.

[37] After the applicant’s surgery in October 2014 to remove the plate in his left femur, he commenced his own rehabilitation program on his property. He described his property of 30 acres as undulating with rocky outcrops and with a 500 metre walk to the gate that “looks more like a goat track”. His house sits was atop one hill looking over the valley to the top of the next hill. Over time he gradually increased the distance he would walk and the extent and nature of work on his property. By early 2015, this work involved fencing; working on his and his neighbour’s farm machinery and equipment; working on trailers; and cutting and carrying firewood.

[38] The applicant acknowledged that he was still experiencing some physical limitations at the time of his assessment with Dr Graham. He said he advised Dr Graham of his confidence in a return to work in April and described the type of work he was undertaking on his property. He did not directly dispute making a comment to Dr Graham that taking care of his property takes twice as long as it used to, but said that it was ‘tongue in cheek’. I take this to mean that it was a deliberate exaggeration, but I find that the applicant would not have made this comment unless the work on his property was taking longer than it used to.

[39] The applicant stated that his assessment by Dr Graham took only 20 minutes and included a fairly cursory examination of his knees and legs. I prefer Dr Graham’s evidence that the examination took at least 40 minutes and that he conducted an appropriate assessment of the applicant.

The process leading to the dismissal

The meeting on 25 March 2015

[40] The meeting on 25 March 2015 was originally intended to be a ‘show cause’ meeting, but didn’t proceed along these lines because the applicant provided the clearance from Professor Jaarsma immediately prior to the meeting. At the meeting the applicant was provided with a copy of the initial report and an opportunity to “browse” the document. Ms Liston’s notes of the meeting 19 record that the applicant disagreed with point 5 in the initial report and stated that he could safely perform 99% of his work.

[41] The notes record that the following was stated to the applicant:

“To protect your wellbeing we are requiring you to go for another assessment to verify where you are versus where you were.”

[42] The applicant was adamant that Ms Liston referred to obtaining “a third opinion” but I consider that it is more likely that the term “further assessment” was used. In any event, directly after the meeting the applicant approached Ms Smith, who was responsible for arranging medical assessments, to see if the assessment could be arranged somewhere closer to his home. In the following days the applicant followed this up again with Ms Smith and with Mr Draper to find out the details of a further assessment, but no detail could be provided.

The show cause meeting on 1 April 2015

[43] The respondent received Dr Graham’s supplementary report on 30 March 2015. Mr Draper advised the applicant of a meeting arranged for Wednesday 1 April 2015, which preceded the Easter long weekend on 3 to 6 April 2015, inclusive. Mr Draper advised the applicant that the meeting would consider “feedback from Dr Graham” and discuss “the way forward”. 20

[44] The applicant attended the meeting in the expectation that he would be returning to work. He did not have a support person present, although he was advised that he could do so. Mr Draper and Ms Pool were in attendance. After reading the supplementary report to the applicant and providing him with a copy, Mr Draper explained that the employer was considering terminating his employment. At that point the applicant became visibly upset and what then transpired is the subject of conflicting evidence. Consistent with the contemporaneous notes of Ms Pool, 21 I find that the applicant protested that he was to have been referred for another opinion. Ms Pool responded by referring to Dr Graham’s specialist qualifications and reminded the applicant that the employer had waited a year before seeking an assessment. The applicant stated that he wanted another assessment because Dr Graham’s report was no longer applicable.

[45] Ms Pool’s notes record that the applicant stated words to the effect that “… awkward positions would require a 2nd person anyway (e.g. the electrician on site) and anything else wouldn’t be awkward. (?)”. Under cross-examination the applicant stated that Mr Draper asked him “What happens if there’s something awkward” to which he relied that “If we need to pull a gearbox off or something like that, there’s always an electrician”. The applicant stated that he also referred to the employer’s job safety analysis which requires that there be assistance with heavy lifting. 22 I accept the applicant’s evidence on this point. Ms Pool’s notes do not make sense in the context of the applicant assuming awkward postures.

[46] The applicant was advised that he had until 7 April 2015 to provide a response in writing or verbally. He stated that he protested this time frame by stating “but its Easter”. This is not in Ms Pool’s notes and Mr Draper does not recall it being raised. I consider that it was likely that the applicant referred to the Easter period and it would be surprising if it was not raised. The applicant concedes that he did not directly request an extension of time.

[47] Mr Draper observed that as he left the meeting the applicant had difficulty getting up from his seat and appeared to be in discomfort. Ms Pool also referred to the applicant being “bent to one side” and that “his facial expression indicated great effort/pain” and that he was limping as he left the meeting. 23 The applicant did not directly dispute this evidence, but stated that he was very upset at having been threatened with termination. He said “I think even Eva [Pool] asked whether she could get me a glass of water, and they were concerned about me driving home. I honestly thought I was going back to work.”24 I interpose that there is no evidence about the applicant’s presentation at the meeting on 25 March 2015.

[48] The applicant was given a written show cause letter, 25 which includes the following passages:

“Dr Graham advises that at the present time you are unfit to perform all the inherent requirements of the job of a Mechanical Technician (Fitter) and it is not possible to say if you will improve to a level which you can undertake normal duties. He also stated that you mentioned in the assessment that “in reality” you could not complete all jobs required of you as a maintenance fitter.

Dr Graham further advises that you will not be able to work in any safety critical situation where balance and stability are important. Furthermore, you should avoid working in awkward positions, avoid squatting, climbing ladders and frequent use of steps.

Based on the information contained in the medical report from Dr Graham, the company has determined that it cannot make any reasonable modifications which would enable you to perform your role as Mechanical Technician (Fitter). We also acknowledge that you are unable toperform the inherent requirements of your role for the foreseeable future.

Unfortunately, due to the nature and degree of the restrictions, the Company is also unable to find any other suitable positions that meet the conditions outlined by Dr Graham.

Taking into account all the information, the Company is in a position where it considers that it may need to terminate your employment, on the basis that you are no longer able to perform the inherent requirements of your position as Mechanical Technician (Fitter).

We would like to give you the opportunity to think of any solutions or roles that you could perform that meet the restrictions outlined. We also ask if there is any other information which we should take into consideration, before the Company makes a final decision in relation to your employment.

Please provide any information to me in writing or by telephoning me the latest by 7 April 2015. ...

...

Please contact me if you have any questions or concerns.”

[49] The applicant contacted Mr Gordon later that day. Mr Gordon provided some advice to the applicant as to what should be included in his response but unfortunately did not suggest obtaining a further medical report or seeking an extension of time to respond.

The applicant’s response of 7 April 2015

[50] The applicant provided a response on 7 April 2015, wherein he stated that he was “… more than aware and capable of the wide and varied expectations of the activities in my role and how to execute them in a safe and productive manner”. He acknowledged that a return to work plan was not available and stated that he created “near work conditions” at home, which he completed in a safe and efficient manner. These conditions included working 10 hour days; getting into awkward positions; standing; squatting; and leaning over objects; all of which were features of his position. The applicant also referred to his clearance from Professor Jaarsma. 26

The request to contact Professor Jaarsma

[51] Following receipt of the applicant’s response, the employer decided to seek his authority to speak with Professor Jaarsma prior to making a final decision on the applicant’s continued employment. 27 When approached, the applicant indicated that he wished to speak to his union before giving a final answer.

[52] Mr Gordon’s evidence on his discussion with the applicant is as follows:

“On 10 April 2015 I received a phone call from Peter telling me that: - “… I received a call from Draper asking for my authority to get information from my Doctor, Professor Jaarsma. Should I do this?” I recommended that he not allow the employer to speak to his doctor but to suggest the employer make a list of questions that he could ask his Doctor to respond to. He said:- “I’ll say that to Draper”. 28

[53] The applicant stated that he advised Mr Draper that “I am happy to relay any questions you have onto Dr. Jaarsma but I am not prepared to provide unlimited access to my medical details.” 29 He also said that he also told Mr Draper that he would convey any written questions to Professor Jaarsma.30 This latter evidence is disputed by Mr Draper.

[54] Ms Pool stated that Mr Draper advised her that the applicant had refused to provide permission to access his surgeon. 31 The matter was not pursued any further.

The termination meeting on 15 April 2015

[55] A meeting was convened on 15 April 2015 where the applicant was provided with the letter of termination 32 signed by Mr Draper. There is a dispute between the parties as to whether Mr Gordon raised the option of returning the applicant to work for a ‘trial period’ under medical supervision. The employer has indicated that it would not have agreed to a trial in any event as the applicant was not fit to return to his role and was at risk of further injury if he did so.

[56] The letter of termination included the following passages:

“This letter confirms our discussion regarding your fitness to complete your normal duties.

After Lion received advicefrom Occupational Physician, Dr Graham (report dated 11 and 30 March 2015), that you are unable to perform the inherent requirements of your role, I invited you to provide any alternative work solutions or, if there are no alternative roles, to provide me with reasons why your employment should not be terminated.

In your response letter, you requested to consider the medical certificate from your orthopaedic surgeon, which states a return to work date of 30 March 2015. We asked for your permission to contact your surgeon to discuss this certificate, which you didn’t grant. You also stated in your response letter that you have 32 years of experience as a fitter and understand of (sic) how to conduct your tasks in a safe and productive manner.

Based on the medical information we have been provided, we have determined that unfortunately we cannot make any reasonable modifications which would enable you to perform the inherent requirements of your substantive role. Additionally, we are unable to find, and you have not been able to identify, any other suitable positions that meet your medical restrictions.

Taking all of the aboveinto consideration, Lion has decided to terminate your employment, effective today, on the basis that you are no longer able to perform the inherent requirements of your position.

You will receive any accrued leave entitlements that are payable to you on termination. As you are currently on unpaid leave, your payment in lieu of notice is not applicable.”

Consideration

[57] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the factors set out in paragraphs (a) to (h) of s.387 of the Act, as follows:

“(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 the FWC considers relevant.”

Valid reason

[58] For a reason to be valid it must relate to the capacity or conduct of the person, including the effect of the person’s capacity or conduct on the safety and welfare of other employees. Capacity relates to an employee’s ability to do the work he or she was employed to undertake.

[59] Whether there was a valid reason to dismiss is a matter not only to be considered but to be accorded some significance in determining if the dismissal is harsh, unjust or unreasonable. 33 The Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss.34

[60] In this matter it is the applicant’s capacity, rather than conduct, that is in issue. The Commission is required to consider and make findings on whether, at the time of dismissal, the applicant was able to perform the inherent requirements of his position based on the medical and other evidence. If not, then consideration is to be given to whether he would be able to fulfil his position at some time in the future and whether reasonable modifications could be made to accommodate any restrictions or limitations that he may have. 35

[61] Dr Graham’s conclusion that the applicant was unable to safely perform the inherent requirements of his position as at the date of examination on 5 March 2015 is not in dispute. The controversy concerns Dr Graham’s assessment of the applicant’s future capacity to perform his role. In making this assessment, Dr Graham said his focus was not on the applicant’s recovery from the injuries he suffered in the accident but on the function of his joints. 36 His opinion was significantly influenced by his diagnosis of degenerative change in the applicant’s knees.37

[62] The available radiology indicates that the applicant has arthritis in three of the four knee joints in his left knee. Regardless of whether the degenerative change is characterised as significant or otherwise, and views may differ on this 38, the CT report states that, “A similar appearance was present on Xrays dated 23 February, at the time of the femoral fractures.” That is, there is no radiology that suggests any further degeneration in the applicant’s knee as a result of his accident. I have also taken into account Professor Jaarma’s evidence that the radiology is not determinative of the level of restriction in the joint and that the level of degenerative changes that the applicant has “… are very similar if not normal for a 50-year-old, 51-year-old manual labourer.”39

[63] The other matter of some weight in Dr Graham’s assessment of the applicant’s future capacity to perform his role was the applicant’s own assessment of his restrictions and ability to return to work.

[64] In response to a question about the likelihood that the applicant would improve at a rate greater than he assessed in his initial report, Dr Graham stated that “Mr Norman said clearly to me that he didn’t think that he could return to this job.” 40 This was a matter of some significance in Dr Graham’s assessment and was cited by the employer in the show cause letter issued to the applicant.

[65] However, when the applicant discussed his limitations and his inability to return to work he was speaking of his situation at the time of the assessment on 5 March 2015. This was the applicant’s evidence and is confirmed in Dr Graham’s notes of his examination of the applicant, which record the applicant’s comments under the heading “At present time”. 41 Dr Graham’s initial report also records that the applicant is confident that he will improve to a point where he can perform his role, albeit that Dr Graham did not share his confidence.

[66] Dr Graham’s assessment was that the applicant was at risk of further exacerbating the degenerative change in his knees if he returned to his position. This is in conflict with his conclusion in the initial report that, “The likelihood of risk of further injury is not great.” Dr Graham’s explanation for this apparent conflict is that the conclusion in the initial report referred to the risk to refracturing his femurs. However this is inconsistent with the stated focus of his assessment. At the time of his assessment on 5 March 2015 the applicant had not been cleared by Professor Jaarsma and Dr Graham did not have any radiology on which to support such a conclusion. Accordingly I do not accept Dr Graham’s oral evidence on this matter.

[67] The terms of the request to Dr Graham for a further report advise him to contact the employer if he needs to see the applicant again. In this context there was no barrier to Dr Graham further examining the applicant. His decision not to do so in light of Professor Jaarsma’s clearance and Dr Graham’s own equivocation in relation to the applicant’s prognosis, is surprising. For example, in the initial report Dr Graham stated that “The prognosis is very difficult to suggest”; and “… it is not possible to say whether [his restrictions or reduced functional capacity] are temporary or permanent”. I am also concerned that Dr Graham’s supplementary report was influenced by his misunderstanding of the applicant’s own views about a return to his position.

[68] Taking all of the above matters into account, I do not accept Dr Graham’s assessment that the applicant would not be fit to return to his position within three months of the examination on 5 March 2015. This does not however automatically lead to a conclusion that the applicant was fit to perform the inherent requirements of his position at the point of dismissal.

[69] In reaching a view as to the applicant’s capacity when he was dismissed I prefer the evidence of Professor Jaarsma to that of Dr Graham where there is a conflict. I have relied upon Professor Jaarsma’s evidence that:

• The applicant had not achieved his pre-injury level of capacity as at 25 March 2015 but that this is rarely achieved where there has been serious injury and an extended absence from work and that, at best, a recovery to 95% - 98% is achievable.



• The degenerative change in the applicant’s left knee was not a barrier to performing his role as maintenance technician;



• The applicant’s femurs had sufficiently healed so that he was not at risk of further injury;



• There was no barrier to the applicant returning to work;



• It was up to the employer and occupational physician to determine how the applicant could be fully integrated into his position.

[70] Accordingly I find that the restrictions suffered by the applicant when assessed by Dr Graham on 5 March 2015 were predominantly connected to the trauma he suffered and the healing process. The applicant could, and I find that he did continue to improve after this date.

[71] In J Boag and Son Brewing v Button (Boag) 42 the worker had permanent restrictions and was unable to fulfil the inherent requirements of his original position. The employer had arranged for other workers to assist Mr Boag in his role over a period of many months. It was held at first instance that Mr Boag performed the inherent requirements of his position as it had been modified by the employer when it made available the assistance of the other workers. On appeal the Full Bench held that it is the substantive role and not any modified, restricted duties or temporary alternative position that must be considered.43

[72] The applicant may have had some residual difficulty with squatting but he was not unable to squat or assume awkward positions, nor was he at risk if he did so. He may well have benefitted from a gradual integration to full duties having regard to the fact that he had suffered a serious trauma and been absent from the workplace for over 12 months. In the circumstances of this case it would be wrong to conclude that, because the applicant may potentially benefit from a reintegration program, he was unable to perform all the inherent requirements of his position. I am satisfied that the applicant could perform the requirements of his position and accordingly there was no valid reason for dismissal.

Procedural issues

[73] The grounds on which the applicant argues that he was denied procedural fairness can be summarised as follows:

• At the meeting on 25 March 2015 the respondent led the applicant to believe that it was going to arrange for him to be assessed by a different medical practitioner;



• The applicant was given insufficient to time to properly respond to the reports received from Dr Graham and to otherwise show cause why his employment should not be terminated;



• The respondent should have sought a report from Professor Jaarsma before taking the decision to dismiss; and



• The respondent refused to undertake a trial period under medical supervision to assess the applicant’s ability to perform his role.

[74] I have earlier made findings in respect to the meeting on 25 March 2015, namely that the applicant was advised that he was required to “go for a further assessment”. The applicant was kept in the dark about what was happening and attended the meeting on 1 April 2015 believing that his return to work would be discussed. The employer’s advice that this meeting was to consider “feedback from Dr Graham” and discuss “the way forward” was not sufficient to convey that it was a show cause meeting.

[75] The employer had conveyed to the applicant that it would attempt to resolve the apparent conflict between Dr Graham’s initial report and Professor Jaarsma’s clearance by arranging a further assessment of the applicant to identify the extent of any improvement in his condition. This is the only reasonable interpretation of the statement made at the meeting on 25 March that the purpose of the further assessment was to “… verify where you are versus where you were.” Viewed in this light, it is not surprising that the applicant became visibly upset when he was presented with a further report from Dr Graham and told that his employment may be terminated.

[76] In relation to the second ground, above, I am satisfied that the applicant referred to obtaining further medical evidence on at least one occasion at the show cause meeting and that he referred to Dr Graham’s report being no longer relevant. As noted earlier, I accept that the applicant intimated that he was concerned with the period given for his response but that he did not seek an extension of time.

[77] An opportunity to respond to the reasons for dismissal must be a fair and adequate opportunity. Albeit in a different context, the views of Chief Justice Wilcox as stated in Gibson v Bosmac Pty Ltd are apposite to the present matter:

“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particularly formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.” 44

[78] The respondent provided the applicant with the reports on which it had formed the view that he was unable to fulfil his role. He understood the basis of the employer’s consideration that his employment may be terminated. The issue here is whether there was a positive obligation on the employer to provide a longer period for the applicant to respond in circumstances where he made no specific request for more time.

[79] In considering this issue I have had regard to the applicant’s emotional state at the meeting on 1 April 2015; his protest that the period for a response was almost entirely subsumed by the Easter long weekend; his statements that he wanted to obtain a further assessment; and the applicant’s inexperience in dealing with such matters. It is not disputed that the applicant had an opportunity to bring a support person to the meeting on 1 April 2015, but his decision not to do so must be seen in the context of his understanding of the purpose of the meeting. The respondent’s obligation was to treat the applicant fairly and in my view the deadline it imposed was unreasonable in these circumstances.

[80] In relation to the third ground, I consider that there was a genuine miscommunication between Mr Draper and the applicant on the process of obtaining further information from Professor Jaarsma. On any interpretation however the applicant did not refuse permission for the employer to access further information. As he pointed out, it would be contrary to his interests to do so.

[81] In many circumstances it would not be incumbent on the employer to obtain a further medical report from the employee’s treating health professional. However in this case, the employer had clearly intimated that it was going to arrange for the applicant to undertake a further assessment to resolve the apparent conflict between the views of Dr Graham and Professor Jaarsma. As this was not done, and in view of the limited time given for the applicant to ‘show cause’ why he should not be terminated, there was an onus on the employer to follow through with the applicant to obtain information from Professor Jaarsma in relation to the clearance he issued. Had the employer done so, it would have had the benefit of a different view on the applicant’s capacity, and in particular a different view on the impact of the degenerative change in the applicant’s knees.

[82] The letter of termination indicates that the employer proceeded on the incorrect premise that no alternative view of the applicant’s capacity was available to the employer as a result of the applicant denying access to his treating surgeon.

[83] I conclude that the applicant was notified of the reasons for his dismissal but in the circumstances was not given a reasonable opportunity to respond to those reasons.

[84] The criteria in ss.387(d), (e) (f) and (g) of the Act are not applicable and/or of no weight in this case.

Any other matters – s.387(h) of the Act

[85] It is relevant that the employer had kept the applicant’s position open for over 12 months at the point of dismissal.

[86] I have taken into account Mr Hardie’s submissions concerning the impact of the dismissal on the applicant, given his age and location. It is well settled that a decision may be harsh in its consequences for the personal and economic situation of an employee. 45 Examples of circumstances that have led to a finding of a harsh dismissal on this basis include:

• Where the dismissal caused damage to the employee’s reputation which restricted the ability to obtain further employment;



• Where an employee is engaged under a subclass 457 visa faced deportation as a consequence of the termination;



• Where the employee had extensive and exemplary service, was the primary breadwinner for his family and was unlikely to secure further employment because of his age. 46

[87] Each case must be determined on its own circumstances and the findings of a harsh dismissal in the above cases cannot be divorced from the particular circumstances in the respective cases. Nonetheless they are a useful guide. In my view the consequences of the dismissal for the applicant are beyond that normally associated with any dismissal due to his age. This is a factor to be taken into account.

[88] The applicant had been employed for nearly six years at the date of dismissal, which, while not an extensive period of service, is not a short period of service and is of some weight.

[89] As noted the employer kept the applicant’s position open for over 12 months. It cannot be said that the employer was precipitous in its decision to dismiss or that it in any way pressured the applicant to return to work. Notwithstanding my conclusions in relation to the procedure leading up to the dismissal, the overall approach by the employer from the time of the applicant’s accident was sympathetic and this should be acknowledged. On balance these matters do not outweigh my other findings and I determine that the dismissal was unjust and unreasonable.

Remedy

[90] The applicant seeks reinstatement to his former position. The relevant provisions of the Act are:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) … [not relevant]

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[91] The respondent opposes reinstatement on a number of grounds. Firstly, the Commission has no evidence that the applicant has the capacity to perform the inherent requirements of his position. In this situation the Commission cannot order reinstatement until the applicant’s capacity is confirmed. As a corollary to this, it was submitted that it would not be possible for the Commission to identify the extent of the applicant’s loss of wages, as the period of incapacity during which no income would be earned, is not known. This matter has been dealt with above. The applicant had the capacity to perform the inherent requirements of his position as at the date of dismissal.

[92] Secondly, the applicant’s position was filled in October 2015. Ms Preston acknowledged that this would not of itself defeat an application for reinstatement, but nonetheless the Commission should take into account that the applicant’s reinstatement would require the employer to terminate the employment of the person who replaced him. This is of limited weight (see below), especially in circumstances where the employer was aware that the applicant was pursuing reinstatement to his position before it appointed his replacement.

[93] Thirdly, there has been a loss of trust and confidence in the applicant by his line supervisor, Mr Draper and Mr Draper’s line Manager, Mr Steve Rice. Ms Preston relied on an exchange with the applicant, concerning comments he made to co-workers about Mr Draper and Mr Rice whilst engaged by Weldfab. I can find no evidence on the nature and/or extent of any working relationship between the applicant and Mr Rice. I find that the applicant most likely did make uncomplimentary comments about Mr Draper, 47 but there is no evidence as to what was actually said.

[94] Ms Preston then made the following submission:

“However the evidence goes much further than that, because if you look at what actually went on in the witness box, there’s a lot of almost poison in the relationship with accusations of Mr Draper lying, with accusations of Mr Draper targeting him in his employment, down to the very fact that the whole reason that that position was left open in the first place and suddenly closed was to prevent reinstatement.” 48

[95] The evidence does not support this submission. Ms Preston asked the applicant, when he disagreed with Mr Draper’s evidence, whether he was saying that Mr Draper was a liar, to which the applicant responded that “I don’t like calling anyone a liar”. When asked whether his relationship with Mr Draper had deteriorated through the process of his application to the Commission, the applicant stated that he was upset and confused. 49 It was Mr Hardie’s submission, not the applicant’s evidence that the respondent sought to frustrate a reinstatement order by filling the applicant’s position.

[96] Finally, Ms Preston noted that the applicant’s performance management was, ultimately, about the applicant’s capacity or willingness to follow the instructions of Mr Draper. She submitted that “It was well accepted that [the applicant] performed his job well, that he was an excellent - exceptional even, I think the word was used, fitter, however there were some serious disciplinary issues in him following orders of Mr Draper. Those are clearly matters that are going to be exacerbated now, if the applicant was returned to work under Mr Draper.”  50

[97] I have dealt earlier with the inactive performance plan. There is no evidence of any disciplinary proceedings, let alone “serious disciplinary issues” being initiated by the employer. There is however ample evidence before the Commission, including that of the applicant’s line supervisor, attesting to his excellent skills, attitude, conduct and diligence in relation to his trade work.

[98] Mr Draper’s evidence was that if the applicant was reinstated it would be awkward and uncomfortable. 51 This is likely to be the case, in the initial period at least, and is not assisted by any negative comments made about him by the applicant. Nonetheless, the applicant and Mr Draper have had a long standing working relationship and have previously overcome tension that has developed from time to time. I am confident that a productive and respectful working relationship will be re-established if the applicant is reinstated.

[99] Reinstatement under the Act was recently considered at some length in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen). 52 Considering a range of authorities the Full Bench stated:

“We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act.   The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.” 53

[100] After considering the legislative development of the remedy provisions relating to relief from unfair dismissal, the Full Bench turned to the issue of appropriateness of reinstatement. The Full Bench observed that:

“[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon Australia Ltd: [footnotes omitted]

‘It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not ‘appropriate’. To adopt such an approach would tend to defeat the remedial purpose of the legislation.’”

[101] The Full Bench then considered the approach to be adopted in considering an argument that reinstatement would beinappropriate because there has been a loss of trust and confidence. The Bench distilled a number of propositions concerning the impact of a loss of trust and confidence, including the following:

“[27] …

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.



• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

…

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[102] I am satisfied that professional and viable working relationships can be re-established in the workplace and any discomfort on Mr Draper’s part will be short lived. The applicant enjoys the support and respect of his co-workers. This is not a case where an employer has alleged and/or substantiated misconduct on the part of a worker which led to the dismissal. An order for the reinstatement of the applicant to his former position will be issued.

[103] I consider that it is appropriate to make an order for remuneration lost by the applicant as a result of the dismissal. There is evidence before the Commission of remuneration received by the applicant from Weldfab of $13,043 (gross). 54 I note that the applicant received no notice of termination so no deduction is required on this account.

[104] The applicant may have received further remuneration from Weldfab and/or other sources since the hearing concluded. In addition, the amount of the applicant’s gross weekly wage with the respondent is not in evidence. For these reasons the parties are requested to confer on the amount of remuneration that will accompany the order for reinstatement and advise the Commission accordingly.

DEPUTY PRESIDENT

Appearances:

Mr T Hardie for the applicant

Ms R Preston with Ms D Katris for the respondent

Hearing details:

2015:

Adelaide

11, 12 and 13 November

 1   Ex R8, Attach “MD-7”.

 2   Ex A6.

 3   AE404146 at cl 26.

 4   Ex A4 and A5.

 5   The applicant is 51 years old and resides in the Barossa region of South Australia.

 6   Ex R2, Attach “GJG-1”.

 7   Ex R2, Attach “GJG-3”. The report was incorrectly dated 11 February 2015.

 8   Ex R2, Attach “GJG-2”.

 9   Ex R2, Attach “GJG-4”.

 10   Ex R2, Attach “GJG-5”.

 11   At PN990-991.

 12   Ex A1.

 13   Ex A7 Australian Super Report.

 14   Ex R2 at para 22(a).

 15   At PN202-203.

 16   At PN104.

 17   At PN199.

 18   At PN196.

 19   Ex R1.

 20   Ex R8 at para 37.

 21   Ex R6.

 22   At PN613-616.

 23   Ex R8 at para 43; Ex R5 at para 30, respectively.

 24   At PN467.

 25   Ex R8, Attach “MD-5”.

 26   Ex R8, Attach “MD-6”.

 27   Ex R8 at paras 46 and 47.

 28   Ex A6 at para 3.

 29   Ex A3 at para 15.

 30   At PN375.

 31   Ex R5 at para 34.

 32   Ex R8, Attachment “MD-7”.

 33   Edwards v Justice Guidice [1999] FCA 1836 at [5] per Moore J.

 34   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, (1999) (unreported, AIRC (FB), R4471, 11 May 1999).

 35   Jetstar Airways Pty Limited v Neeteson-Lemkes, [2013] FWCFB 9075; Hatcher VP, Drake SDP and Riordan C; at [53].

 36   Ex R2 at para 15(b).

 37   Ex R2 at para 29.

 38   At PN958.

 39   At PN153-154.

 40   At PN1177.

 41   Ex R4.

 42 (2010) 195 IR 292 at 299.

 43   Ibid at para 22.

 44 (1995) 60 IR 1 at p 7.

 45   Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410, per McHugh and Gummow JJ.

 46   Barwon Health – Geelong Hospital v Colson (2013) 233 IR 364; Ismalov v Hisoftware (Australia) Pty Ltd[2014] FWC 3751; Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, per Lawler VP and Roberts C, O’Callaghan SDP dissenting, respectively.

 47   At PN706-711.

 48   At PN2680.

 49   At PN676-690.

 50   At PN2683.

 51   At PN1709.

 52   [2014] FWCFB 7198, Ross J, Gostencnik DP, Wilson C.

 53   Ibid at [10].

 54   As per the payslips attached to the applicant’s Outline of Argument and evidence from the applicant that a further $2,800 was received from Weldfab.

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