Philip Alcock v TNT Australia Pty Ltd T/A TNT Express
[2014] FWC 9120
•17 DECEMBER 2014
| [2014] FWC 9120 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Philip Alcock
v
TNT Australia Pty Ltd T/A TNT Express
(U2014/11580)
COMMISSIONER WILSON | MELBOURNE, 17 DECEMBER 2014 |
Application for relief from unfair dismissal.
[1] Mr Philip Alcock was employed by TNT Express as a pickup and delivery driver in the company’s Adelaide depot from 23 March 1994 1 until his dismissal on 30 July 2014. At the time of dismissal he had worked for TNT Express for more than 20 years and was 65 years of age.2
[2] As a pickup and delivery driver (PUD) Mr Alcock loaded and then drove trucks with a load capacity in the range of three tonnes.
[3] The work is physically demanding. It requires that a driver be able to load and organise their truck from a conveyor belt in the company depot; to then drive the vehicle around the Adelaide CBD region, parking the vehicle, retrieving goods for delivery and then delivering them to customers; and to similarly pickup parcels from customers in the CBD, load them into the truck, return to the depot and unload the parcels onto the conveyor for transportation to the ultimate customer. Generally TNT Express will take individual parcels from customers for its PUD service of up to 40 kg, with heavier parcels being dealt with through different means. 3 While most of the parcels are well below 40 kg, many are not.4 The current job design requires a PUD driver to handle and manipulate the single parcel perhaps five or six times from the time it arrives in Adelaide at the depot, to the time it is provided to the customer (or in reverse). Some parcels have an uneven weight distribution or are physically large such as a television or a tow-bar.
[4] In 2014, TNT Express formed the view that Mr Alcock was no longer able to safely perform the inherent requirements of his position. That view was tested by TNT Express through a functional assessment conducted by a medical practitioner, whose report was accepted by the company, which in turn dismissed Mr Alcock on 30 July 2014 having concluded that he “cannot safely perform the inherent requirements of [his] position as a PUD driver”. 5
[5] Section 396 of the Fair Work Act 2009 (theAct) requires the determination of four initial matters before considering the merits of an unfair dismissal application. Neither party put forward that any initial matter required determination. As a result, and it being consistent with the evidence, I find that Mr Alcock’s application was made within the 21-day period required in s.394(2)(a) and that he was a “person protected from unfair dismissal” within the meaning of that expression in s.382 at the time of the dismissal. I also find that TNT Express was not a “small business employer” within the meaning of that expression in s.23, and accordingly an issue of consistency with the Small Business Fair Dismissal Code does not arise. I also find, that Mr Alcock’s dismissal was not a case of “genuine redundancy” as defined in s.389 of the Act.
[6] For the detailed reasons which are set out below, I have decided that Mr Alcock was not unfairly dismissed by TNT Express.
LEGISLATION
[7] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
BACKGROUND
[8] Before being asked to undertake a functional assessment in June 2014, Mr Alcock’s managers began noticing problems with his overall capacity. Part of this was Mr Alcock’s immediate history of injury and associated problems with TNT Express since 2009 which included over 24 reported incidents from February 2009. It also included an observation on the part of Mr Brenton Walter, the SA Pickup and Delivery Manager, who “began to develop concerns about Mr Alcock’s capacity to perform his duties around late March 2014. Mr Alcock had sustained excessive injuries, which include tripping and lower back injuries, in his regular run.” 6 The formation of this view was about the same time that Mr Alcock submitted a workers’ compensation claim to TNT Express in respect of an “abdominal muscle strain” sustained when he “lifted carton to side door and felt stomach twinge”. At the time he was delivering goods and reported that he was working in the back of his truck.7
[9] This incident was the 23rd reported since February 2009 and a 24th is recorded as having occurred on 22 May 2014 when Mr Alcock was “[l]ifting cartons into back of truck [and] felt a pain in lower back”. Following this incident Mr Alcock was on reduced duties for a period of about 2 ½ weeks, between 22 May and 10 June 2014.
[10] While it is difficult to criticise a person for diligently reporting all work related incidents or injuries, for the reason that this is often an essential component of occupational health and safety good practice, the revelations within the reports may reasonably, and for managerial purposes, be seen as an indicator of some greater underlying problem.
[11] The evidence both of Dr Tim Drew, TNT Express’s medical practitioner and Mr Richard Fuller, an occupational physiotherapist brought forward on behalf of Mr Alcock, is that a history such as that exhibited by Mr Alcock since 2009, in the absence of other factors, may not be a correlative predictor of future risk or problems for the person concerned. 8 While I accept that evidence as appropriate and consistent with occupational health practice it sits uneasily, as was submitted by TNT Express, with the duties which are held by the company under relevant occupational health and safety laws and in this case the Work Health and Safety Act 2011 (Cth) (the WHS Act) which applies to TNT Express being covered as a licence holder under the workers compensation scheme established by the Safety, Rehabilitation and Compensation Act 1988 (Cth).9
[12] Amongst other things, the WHS Act;
- requires that a person conducting a business or undertaking “must ensure, so far as is reasonably practicable”, the health and safety of the workers they engage; 10
- imposes a duty that requires such person “to eliminate risks to health and safety, so far as is reasonably practicable”, and “if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable”; 11
- provides that “reasonably practicable”, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters”. 12
[13] The evidence given by the occupational health professionals is not inconsistent with that of TNT Express’ managers which put the history of Mr Alcock to which I have referred, not at the point of being determinative of his ongoing employment, but instead as being a reason to enquire further.
[14] The evidence from TNT Express’ managers records that Mr Walter, in conjunction with Mr John Stanton (the Service Centre Manager) and Mr Chris Zichy-Woinarksi (the company’s General Manager Workplace Risk) formed the view that the overall history of Mr Alcock was such that, at the least, the anecdotal or other indicators required further and detailed consideration.
[15] On 11 June 2014, TNT Express wrote to Mr Alcock, making direct reference to his history of the previous five years together with the circumstances of the most recent injury. The correspondence also took into account an endeavour in March 2014 to reach agreement with Mr Alcock about reassignment between delivery runs with the motivation of finding a run which involved less walking or lighter weight consignments. 13 Agreement had been reached to move between runs and part of the agreement included that Mr Alcock would move from working with a three tonne truck to one with a five tonne capacity but which was slightly higher off the ground. After a short while on the new run Mr Alcock indicated in a meeting with his manager that he was having difficulty getting in and out of the new truck because it was slightly higher than the old, which led to him being assigned a three tonne truck with a restructured load to take some of the bulkier deliveries off the run.14
[16] In his letter to Mr Alcock on 11 and June, Mr Walter for TNT Express, informed Mr Alcock that “[i]n view of the frequency and the nature of your injuries, TNT is concerned about your capacity to safely sustain the inherent requirements of your position” 15 and required Mr Alcock to complete an independent assessment to determine his ability to safely carry out those requirements and to assess the level of risk to his health and safety in performing his work. The letter indicated that Mr Alcock would be advised of the date and time of the assessment but until then he would be stood down on pay and not be required to attend work.
[17] The functional assessment of Mr Alcock undertaken on TNT Express’ behalf by the Jobfit Health Group in June 2014 demonstrated that Mr Alcock was able to lift weights of 35 kg from floor to waist height; 20 kg from waist height to shoulder; and 10 kg from shoulder to above shoulder height. In contrast the expectations of TNT Express were that Mr Alcock needed to be able to safely lift up to 40 kg from floor to waist height; up to 30 kg from waist height to shoulder height; and up to 20 kg from shoulder to above shoulder height.
[18] These requirements are amongst those that TNT Express describes as the inherent physical requirements of Mr Alcock’s role.
[19] Following receipt by the company of the Jobfit report, TNT Express wrote again to Mr Alcock on 7 July 2014 recording the results of the physical and functional assessment; reporting that the company’s consideration of the report was that;
“It is apparent to TNT that you experience limitations that affect your ability to safely perform all of your duties.
The assessment results lead TNT to conclude the following:
(a) You have osteoarthritis in both shoulders which inhibits your full range of motion through the shoulder;
(b) Your poor shoulder condition would impact on your capacity to perform manual handling in a safe manner, especially when lifting over your head. This coupled with poor abdominal strength further increases your risk level.
(c) Your wrist strength was rated as “poor” and your shoulder strength was not assessed due to the presence of osteoarthritis;
(d) You are unable to safely lift the required weights associated with the role of a PUD driver;
(e) The assessing doctor stated that ‘Mr Alcock can perform most of the inherent requirements of his role, however, his maximum lifting limits slightly below job description upper limits at 35kg to waist and 20kg to shoulder and 10kg to above shoulder height’;
(f) The assessment identified the presence of an underlying knee (cartilage) condition;
(g) The presence of underlying knee and shoulder conditions could be the reason as to why you experienced difficulty in accessing and egressing the cabin of the 5 tonne vehicle due to its height off the ground.
These results indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT.
In recent months, TNT has attempted to accommodate your personal physical restrictions in having you perform less physically demanding duties. This includes allocating you to a run with less walking, and then providing you with a smaller truck to assist your access and egress from the vehicle. However, due to your further injury after these changes have been made, we remain concerned about exposing you to an unacceptable risk of injury. Accordingly we can no longer accommodate you in the various roles that you have been temporarily performing.
TNT has a duty of care to ensure that your health and safety, and the health and safety of others are not put at risk.
The assessment results conclude that you cannot safely perform the inherent requirements of a driver role. Accordingly, TNT wishes to consult with you regarding any alternative roles that you think you may be qualified for, and can safely perform.” 16
[20] The correspondence indicates that the company had already investigated whether there were any suitable roles which could be provided to Mr Alcock and that TNT Express did not believe there were. It also advised that should it not be possible to place Mr Alcock in a suitable alternative role, his employment would be terminated. It also advised Mr Alcock that TNT Express would meet with him on 10 July 2014 at which time he was welcome to have a support person present “regarding any suitable alternative roles you wish to be considered for”. 17
[21] There was extensive evidence drawn on the question of what were the inherent requirements of the position; whether they were reasonable; how TNT Express came to evaluate Mr Alcock’s capabilities; and whether that assessment was accurate.
[22] As would be expected, the inherent requirements of the position performed by Mr Alcock are many. His position is essentially a semi-skilled one predominantly composed of manual tasks. TNT Express’ requirements for those tasks are set out in a TNT Express document entitled “Pre-Employment Medicals: Physical Demands of Core Positions within TNT”. 18
[23] The Physical Demands document sets out that a person involved in loading and unloading a vehicle will be called upon to undertake the following activities, relevant to Mr Alcock’s situation;
- “Frequent standing & walking
- Occasional to frequent lifting, carrying and handling items of different weights, shapes and sizes up to 40kg from ground to waist, 30+ kg from waist to shoulder and 10-20kg above shoulder height
- Occasional to frequent handling items of different weights,
....” 19
[24] In the same document, the following definitions of frequency are provided;
“Occasional 0-33% of an 8 hour day (0 – 20 mins per hour)
1 lift every 30 minutes
Frequent 34-60% of an 8 hour day (20 – 40 mins per hour)
l lift every 2 minutes.
Constant 67 - 100% of an eight hour day (40 – 60 mins per hour)
1 lift every 30 seconds” 20
[25] The contents of the Physical Demands document were the subject of illustration through evidence that showed broadly that a PUD driver such as Mr Alcock could be expected in the course of a shift to handle hundreds of parcels of various dimensions.
[26] Many of these parcels are well under 20 kg and a relatively small number above 30 kg, with a few going as high as 40 kg and some higher. 21 TNT’s evidence is that it could not “guarantee that Mr Alcock would not be exposed to the requirement to lift up to 40 kilos from waist to floor and floor to waist, 30 kilos from waist to shoulder and 20 kilos above shoulder.”22
[27] The practicality of the work, as presently designed, is that a PUD driver must take the parcels off the conveyor belts; arrange them on the depot floor at the rear of their truck; then stack them into the rear of the truck, rather like piecing together a jigsaw, so as to ensure the parcels were stacked securely but also in conformity with the runs to be undertaken by the driver.
[28] There is a consistency of evidence on these matters, that not only do parcels have to be manipulated in and out of the truck, but that stacking is required for some items from the floor of the truck to a pile at about waist height. In addition, some items require stacking from the floor of the truck or elsewhere to about shoulder height; and finally some items need to be stacked from the floor of the truck or elsewhere to above shoulder height.
CONSIDERATION
[29] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the above legislative factors.
(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)
[30] I am satisfied that TNT held a valid reason for termination, being that Mr Alcock could not, at the time of his dismissal perform the inherent requirements of his position.
[31] The work as presently designed requires a PUD driver to be able to load and organise their truck from a conveyor belt in the company depot; to then drive the vehicle around the Adelaide CBD region, parking the vehicle, retrieving goods for delivery and then delivering them to customers; and to similarly pickup parcels from customers in the CBD, load them into the truck, return to the depot and unload the parcels onto the conveyor for transportation to the ultimate customer. This work design means that any given parcel can be handled and physically manipulated by a driver up to five or six times in the course of a delivery run. 23
[32] The evidence of the TNT Express witnesses was clear; this is not a circumstance where there might only be one very heavy parcel to be manipulated a single time in the course of a shift, but rather this is a circumstance where there might be several or many such parcels which have to be manipulated on multiple occasions.
[33] It is within this context that TNT Express argues its requirements as set out in the Physical Demands document amount to its inherent requirements of the position. TNT Express’ evidence and submissions is clearly that the ordinary job design of a PUD driver is such that a driver cannot avoid lifting, carrying and handling and especially cannot avoid the manipulation of sometimes heavy parcels to waist, shoulder or above shoulder height.
[34] There was extensive evidence and submissions surrounding an extract from the TNT Express Drivers Handbook which made reference to obligations of drivers to avoid unsafely lifting heavy parcels and employing certain strategies to ensure they could move anything considered to be unduly heavy. In particular the Drivers Handbook requires;
“7. Driver Health & Safety
7.4 Lifting, Carrying, Pushing and Pulling
Poor manual handling practices account for half of all injuries sustained by TNT personnel. Severe back and shoulder injuries can be permanent and painful.
NB: Never attempt to lift freight that is too heavy for you:
- Use correct manual handling techniques (think ‘BACKSAFE’!) when lifting/putting down freight
- Always assess the weight of the load before lifting an item
- Check items for a ‘Heavy’ sticker, as shown:
- If an item is greater than 20kg, is deceptively heavy ( eg is small but heavier than expected), is awkward (eg long and heavier at one end), and does NOT have a ‘Heavy’ sticker, put one on it
- Use lifting aids such as a trolley
- Get assistance for heavy items (i.e. items you believe are outside your comfort zone to lift alone, or are too awkward) if lifting aids are not available. This includes requesting assistance from customers. If such assistance cannot be obtained, then return the freight to the depot”. 24
[36] Determination of the inherent requirements of a position requires analysis not only of the terms on which a person has been employed, but the job they do and the organisation within which the job is performed;
“The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.” 25
[37] In the same matter, Qantas Airways Ltd v Christie, Gaudron J provided assistance on the difficult decision of precisely how an aspect of a position might be considered “inherent”. The case involved an international airline pilot who, having turned 60 years of age, was restricted from flying over certain countries (referred to as the Rule of 60). That restriction led to his dismissal, with argument going to whether the capacity to enter airspace was unrestricted. In her judgement, Gaudron J found the following;
“Much of the argument in this Court was directed to the question whether the expression “inherent requirements” in s 170DF (2) should be construed broadly or narrowly. It was put on behalf of Mr Christie that it should be construed narrowly because it is an exception to or exemption from the prohibition on termination on discriminatory grounds and a broad construction would be contrary to the evident purpose of s 170DF, namely, to prevent discriminatory conduct. I doubt whether s 170DF(2) is an exception or exemption of the kind which the argument assumes. Rather, I think the better view is that sub-s (2) is, in truth, part of the explication of what is and what is not discrimination for the purposes of s 170DF of the Act. However, that issue need not be explored for there is nothing to suggest that the expression “inherent requirements” in s 170DF (2) is used other than in its natural and ordinary meaning. And that meaning directs attention to the essential features or defining characteristics of the position in question.
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. Clearly, Mr Christie’s position would not be essentially the same if it did not involve flying B747-400 aircraft or if it did not involve flying on Qantas’ international routes. However, that does not answer the question raised by this case. The question is whether the position would be essentially the same if it involved flying B747-400 aircraft but only on those routes which remain available by reason of the enforcement of the Rule of 60.” 26 (emphasis added)
[38] Within the context of a decision relating to an application to the Australian Industrial Relations Commission for relief from the application of a “Preference of Employment Order”, the Full Bench in Hail Creek Coal Pty Ltd v CFMEU 27 took into account Gaudron J’s “practical method” formulation, and derived four “inherent requirements” from an applicable “Job Demands Manual”. In doing so, the Full Bench disregarded certain skills, characteristics and attributes that a company witness believed were required for the positions in question, and considered that certain “of the matters specified are highly subjective and no real basis has been advanced for regarding them as inherent requirements for the positions.”28 The case involved consideration of the ability of skilled mine workers to perform their duties, and took into account not only the employees’ physical capacity, but also their rankings along various psychometric and other criteria.
[39] In its decision, the Full Bench drew a distinction between what were claimed to be the inherent requirements of the position, and those which it considered actually were;
“It is of course open to an employer to specify a range of requirements which it considers relevant to the selection of new employees. But that does not mean that the employer’s requirements are essential to the position. They are not necessarily inherent requirements.” 29
[40] The Full Bench found only certain requirements were inherent;
“[125] In our view the inherent requirements of the positions in this case are as follows:
1. The ability to carry out the tasks encompassed by the particular employment. In the case of a Mobile Equipment Operator this means having the requisite qualifications and skills to operate the equipment in question.
2. The ability to work effectively in a multi-skilled team environment.
3. Implied in every contract of employment are obligations of fidelity and good faith, and mutual trust and confidence. It is also an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every position.
4. To be able to perform the duties of their employment without unreasonable risks to their health and safety or to the health and safety of others.” 30 (references omitted)
[41] While the subject matter of Hail Creek Coal Pty Ltd v CFMEU did not involve the consideration of whether a dismissal was unfair, it relates directly to the capacity of an employee to perform their work safely, without injury to themselves or to others.
[42] The references of the Full Bench in Hail Creek Coal Pty Ltd v CFMEU, to being able to perform duties safely to oneself and to others stem from earlier analysis in X v Commonwealth, 31 in which the High Court considered the dismissal of a soldier from the Australian Defence Force because he had tested positive to HIV. The soldier was discharged from the ADF despite being asymptomatic and being in excellent physical health, with it being argued that the soldier was unable to bleed safely in the field without risking the infection of his fellow soldiers. In the matter, and pertinent to the safe performance of one’s work the High Court found;
“Whether something is an “inherent requirement” of a particular employment for the purposes of the Act depends on whether it was an “essential element” of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).
Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely “so obvious that it goes without saying” - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.
It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.” 32 (references omitted)
[43] The overall context of the evidence, together with a consideration of the meaning of the term “inherent requirements of the position” leads me to favour the position put forward by TNT Express on this matter.
[44] That is, the Physical Demands document is the one that should be seen as establishing minimum thresholds of capability, or to put it another way, the inherent requirements of the position, at least as they relate to the physical fitness of a given employee. When TNT Express require a driver to be able to safely lift 40 kg from floor to waist height; up to 30 kg from waist height to shoulder height; and up to 20 kg from shoulder to above shoulder height, and cannot guarantee a driver will not be required to do those things, the effect of its requirement is not to say that a driver must be able to lift to these capacities that on a very high frequency, but rather its effect is to say that these are lifting limits that a driver must be able to withstand in the course of an ordinary or routine shift. A driver is expected to be able to pick up and deliver, for the vast majority of their time on their own, parcels that fall within those limits.
[45] Mr Zichy-Woinarski’s evidence, which I accept, is that there will be many occasions on which greater weight parcels are accepted into the freight system 33; and that the guidance in the Drivers’ Handbook will assist in dealing both with freight above the company’s lifting requirements, and with lighter freight where the driver perceives a risk of injury. His evidence is also that it is not the expected interpretation of the Drivers’ Handbook to apply the guidance to every item of freight where a driver had problems lifting, and that it would be an unreasonable imposition on TNT Express to do so.
[46] When Mr Alcock met with TNT Express on 15 July, he provided the company with a letter from his general practitioner, Dr Alex Jaksic, which stated briefly, and without elaboration that Mr Alcock is “able to lift 35kg to waist and 20kg to shoulder. My understanding is that this surpasses the safe workplace weight limit for an individual and that he is fit to continue working in his usual role.” 34 TNT Express considered the certificate, but considered it insufficient, with Mr Stanton giving evidence as follows;
“Did you form a view at all about the accuracy or otherwise of Dr Jacsek’s (sic) statement?---In my discussions with Mr Zichy-Woinarski I formed a view that requirements of the role needed to be greater than what was written in that.” 35
[47] Competing, and possibly contrary, information about Mr Alcock’s lifting capacity to that provided in the Jobfit report from Dr Drew is contained within Mr Fuller’s report. The report is dated 20 October 2014 and follows a consultation with Mr Fuller on 9 October 2014. Plainly this is information which was not available to TNT Express when it made the decision to dismiss Mr Alcock in July 2014. By the time the report was provided to TNT Express, his contract of employment had already been ended and these proceedings commenced.
[48] Mr Fuller’s report could be interpreted either as showing a better interpretation of Mr Alcock’s physical capacity than that found by Dr Drew at Jobfit, or that his capacity improved in the time between the two assessments. Alternatively, it could show both things.
[49] However, these possibilities do not require assessment in relation to whether or not TNT Express held a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).
[50] This is because an assessment of whether an employer held a valid reason for dismissal is usually an assessment at the point of time the employer made the decision to dismiss. The general proposition is a dismissal might be found to be harsh, unjust or unreasonable after analysis of evidence, where that;
“... evidence concerns circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
- justify the dismissal when otherwise it would be harsh, unjust or unreasonable;
- or render the dismissal harsh, unjust or unreasonable.” 36
[51] In the context of the facts known to TNT Express at the time it considered dismissal, and then dismissed Mr Alcock, it would be unreasonable to allow the possibility that information that came into existence well after termination, and only provided to the company as part of the contest in these proceedings, should be used to determine whether or not there has been a valid reason for termination in the first place.
[52] In context, the following findings are available to me on the evidence about what was known to TNT Express at the time of its decision to dismiss Mr Alcock;
- The contents of the TNT Express physical demands document have been in place for some time and have formed the basis of recruitment and other decision-making about PUD drivers by TNT Express for some years;
- There is no evidence before me that the physical demands document has been the subject of controversy about what it contains prior to these proceedings;
- The physical demands document has been put in place by TNT Express in order to satisfy its duties and obligations under the WHS Act;
- The explanation by TNT Express that the Driver Handbook needs to be read subject to the content of the physical demands document is reasonable, meaning its purpose is to clarify that an employee who is capable of meeting the physical demands so stated, may move parcels in certain ways, but is still required to meet the overall physical demands so stated;
- TNT Express was reasonably working within its obligations of fairness to Mr Alcock, as well as those it held in respect of workplace health and safety when it formed the view that Mr Alcock had, over an extended period of time, significant workplace related incidents and injuries which called into question his ability to perform the inherent requirements of his position;
- TNT Express acted fairly and in accordance with its procedures when it required Mr Alcock to attend a functional assessment conducted by Jobfit, which assessment was conducted fairly and properly;
- Before making a decision about the report by Jobfit, TNT Express considered the likely consequences on Mr Alcock and in particular considered whether an alternative position could be obtained for him.
[53] On the basis of these findings, I am satisfied that TNT Express had, at the time it made the decision to dismiss Mr Alcock, a valid reason for his termination of employment.
(b) whether the person was notified of that reason
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[54] There is no significant dispute that Mr Alcock was notified of the reasons TNT Express held for his dismissal, and the evidence allows that consideration of s.387(b) falls in favour of the Respondent.
[55] In relation to the criterion within s.387(c), consideration of whether an employee has been given an opportunity to respond to the reason for dismissal, such consideration by the Commission is consequential to a finding there is a valid reason for dismissal. 37
[56] In Mr Alcock’s case, the consideration of whether he was given an opportunity to respond to any reason related to his capacity (with the question of conduct not arising), requires examination of Mr Alcock’s ability to do the job as required by TNT Express, 38 or his ability to do the work he was employed to do.39 The reason advanced by TNT Express for Mr Alcock’s dismissal clearly went to questions of his capacity to do the job.
[57] On 7 July Mr Alcock was advised that “TNT wishes to consult with you regarding any alternative roles that you think you may be qualified for, and can safely perform” and on 15 and 30 July this conclusion and other findings by TNT Express were discussed with him.
[58] The discussions that took place between Mr Alcock and TNT’s managers surrounded the company’s consideration of a whole alternative role for Mr Alcock. Mr Stanton’s evidence was that;
“A further meeting took place with Mr Alcock on 15 July 2014 in the presence of Mr Walter and Mr Spring to discuss the potential for alternative employment within the limitations specified in the report. During this meeting I said to Mr Alcock:
“We don’t have any roles that you are able to perform, however if you see any other roles that you are fit for then let us know.”
Mr Alcock was not able to put forward any other roles that he was fit to perform. However, Mr Alcock did provide a letter from his doctor to advise that he was fit for duties based on safe workplace weight limits”. 40
[59] While Mr Alcock at one stage questioned the reasonableness of the safe lifting limits, the question was not the subject of detailed consideration; instead the limitations were seen as a given. 41
[60] While this is the case, the criterion in s.387(c) relates to the opportunity an employee is given to put forward information that, if accepted, might lead to the employer deciding not to dismiss the person. 42
[61] The evidence supports that Mr Alcock had such an opportunity, and in particular in the meeting held with him on 15 July 2014, in which he challenged the reasonableness of the Fitness Test requirements and provided a letter from his doctor that stated he was fit to continue working in his usual role. 43 The letter was considered by TNT Express, although its contents were not considered sufficient for the company’s purposes.44
[62] Mr Stanton’s evidence about this meeting included:
“A further meeting took place with Mr Alcock on 15 July 2014 in the presence of Mr Walter and Mr Spring to discuss the potential for alternative employment within the limitations specified in the report. During this meeting I said to Mr Alcock:
“We don’t have any roles that you are able to perform, however if you see any other roles that you are fit for then let us know.”
Mr Alcock was not able to put forward any other roles that he was fit to perform. However, Mr Alcock did provide a letter from his doctor to advise that he was fit for duties based on safe workplace weight limits...
Mr Alcock did not express an interest in looking for an alternative role. He was focussed primarily on challenging the reasonableness of the assessment. Mr Alcock advised that he felt fit enough to perform the requirements of the role as he was very close to the prescribed weight limits.
In addition to this, Mr Spring raised a number of issues on Mr Alcock’s behalf in an email following the meeting. This included:
(a) The weight requirements specified in the functional assessment report are at a dangerous level;
(b) The functional assessment is for new employees and given that Mr Alcock has 20 years service, it is not appropriate for him to undertake a pre-employment medical assessment; and
(c) Each person should only be required to lift what they are comfortable with.
TNT gave detailed consideration to the matters raised by Mr Alcock and Mr Spring, however TNT considers that the physical requirements of the role are reasonable, as they have been determined by a detailed task analysis. Furthermore TNT has a duty of care to ensure that it does not knowingly place employees in positions where they are exposed to a risk of injury. Mr Alcock was assessed as being unable to safely perform the physical requirements of the role”. 45
[63] Mr Stanton’s evidence is also that Mr Alcock did not question the results of the Jobfit assessment, or ask or a second opinion about his capacity. 46
After consideration of all these matters, I am satisfied that Mr Alcock was provided with an opportunity to respond to the matters TNT Express considered might lead to his dismissal.
(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;
[64] Mr Alcock was permitted to have a support person to assist in the discussions that TNT Express had with him firstly about its concerns about his ability to perform the inherent requirements of the position, and secondly in relation to his dismissal. As a result, this criterion does not require further 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
[65] Since Mr Alcock’s dismissal was not related in any way to unsatisfactory performance, the need for detailed consideration of this criterion does not arise.
(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;
[66] There is no evidence that the size of the employer’s enterprise would be likely to impact on the procedures followed by TNT in effecting Mr Alcock’s dismissal
[67] The evidence in the matter shows clearly that TNT had access to dedicated human resource management specialists or expertise in considering Mr Alcock’s situation and his dismissal, and so this is not a factor in my consideration of whether in all the circumstances Mr Alcock was unfairly dismissed.
[68] The criteria within s.387(f) and (g) do not require further consideration.
(h) any other matters that the FWC considers relevant.
[69] I consider that another matter which is relevant in deciding this application is the age of the Applicant, which at the time of his dismissal was 65, and the length of service that he had had with TNT Express, namely 20 years. In Sexton v Pacific National (ACT) Pty Ltd, Vice President Lawler noted that an employee’s age and long service were “other relevant matters” to be taken account of, but by no means determinative, in deciding whether a dismissal was unfair;
“Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a ‘fair go all round’” 47
[70] Notwithstanding that such consideration ought properly be given, the proposition that an employee can be held to perform to certain mandatory physical standards is central to this matter. In Mr Alcock’s case, such consideration as might be required to be given by TNT Express to his age and length of service can be said to have been reasonably satisfied through the process of medical examination and discussion with him that the company put in place. Consideration of dismissal was not made until after the Jobfit medical assessment was undertaken and a report provided to TNT Express. The decision to dismiss was not taken lightly, and when it was taken, it was taken on the basis of the evidence in the company’s possession.
[71] It is Mr Alcock’s case that TNT did not properly assess the requirements of his role when it determined what were the requisite conditions he had to meet and that the articulated requirements were not an accurate reflection of the real duties. It was submitted that Mr Alcock was being held to a higher standard than other drivers and that many others would not be able to pass the test requirements set by the company. Finally, it was submitted that TNT Express had failed to exhaust all other options before deciding to exercise dismissal;
“Other job roles were available, medical treatment was not explored and exercise/fitness regimes were not discussed. Lifting aids were not investigated; weight belts, compression bands, lifting straps, etc.
The Applicant submits that given the size of TNT, the Respondent should have explored more options before deciding to terminate Mr Alcock”. 48
[72] TNT Express reject these claims and points to the evidence it had available at the time of dismissal and particularly that Mr Alcock was assessed by Jobfit as having a “restricted physical capacity for the role”. 49 It also seeks to hold Mr Alcock to the obligations of a formal task analysis that has been in existence for some time and applied across the company’s business, and that it had before it “a substantial amount of detailed information and advice on which it relied upon in concluding that the Applicant was unable to safely perform the inherent requirements of his role”.50 The possibility that treatment options, lifting aids or other assistance might help Mr Alcock and should be an option considered by TNT Express instead of dismissal were rejected by the company as being of “no benefit” because of his underlying osteoarthritis condition in his shoulders. Furthermore, the company discarded these possibilities since “the physical requirements for all other operational roles in South Australia are the same; therefore Mr Alcock could not have been redeployed to another operational role.”51
[73] The evidence relating to Mr Alcock and available to TNT Express at the time it dismissed him was that he had a restricted physical capacity for the role. This fact, in conjunction with the company’s expectations of the role Mr Alcock performed as set out in the Physical Demands document, has led me to find (as set out above) that TNT Express had a valid reason for Mr Alcock’s dismissal. Consideration of the other criteria within s.387, and in particular, taking into account his relative age and length of service, does not cause me to find that his dismissal was otherwise unfair.
CONCLUSION AND ORDERS
[74] After consideration of the foregoing issues, I find that the Applicant was not dismissed in a manner that was unfair within the meaning of the Act.
[75] As a result, I must now dismiss Mr Alcock’s application for unfair dismissal remedy and an Order to this effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr Edward Lawrie (Transport Workers’ Union) for the Applicant
Mr Adam Moulton for the Respondent
Hearing details:
2014.
Adelaide:
November, 12 and 14
2014.
Melbourne, with video link to Adelaide and Sydney:
November, 18
1 Form F3 Employer Response Form dated 29 August 2014, item 1.2
2 Exhibit A2, paragraph 23
3 Transcript, PN 1374
4 Exhibit R5, paras 29 - 30; Transcript, PN 273
5 Exhibit R4, attachment JS-3
6 Exhibit R3, para 7
7 Exhibit R1, pp 4-5
8 Transcript PN 1027, 2116
9 Exhibit R2, para 37; Exhibit R5, para 9
10 Work Health and Safety Act 2011 (Cth), s.19
11 Ibid, s.17
12 Ibid, s.18
13 Exhibit R3, paras 11 - 13
14 Exhibit R3, paras 14 - 17
15 Exhibit R3, attachment BW – 3
16 Exhibit R4, attachment JS-1
17 Ibid
18 Exhibit R5, attachment CZW – 1
19 Ibid, p4
20 Ibid, p2
21 Exhibit R5, paras 29 - 30
22 Transcript, PN 1355
23 Transcript, PN 1360, 1633
24 Exhibit A4
25 Qantas Airways Ltd v Christie, (1998) 193 CLR 280, p.284 (per Brennan CJ)
26 Ibid, p.295
27 (2004) 143 IR 354
28 Ibid, at [128] – [129]
29 Ibid, at [130]
30 Ibid, at [125]
31 (1999) 200 CLR 177
32 Ibid, at p 187 - 188
33 Exhibit R5, paras 29 -30
34 Exhibit R4, attachment JS-2
35 Transcript, PN 1507
36 Australia Meat Holdings Pty Ltd v Mclauchlan (1998) 84 IR 1, at [14]; see also Dundovich v P & O Ports (unreported, AIRCFB, (2002) PR923358, at [79].
37 Chubb Security Australia Pty Ltd v Thomas (2002), AIRCFB Print S2679, at [41].
38 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 684.
39 Webb v RMIT University[2011] FWAFB 8336, at[6].
40 Exhibit R4, paras 21 – 22
41 Exhibit R3, para 28 - 29
42 Wadey v YMCA Canberra [1996] IRCA 568
43 Exhibit A2, para 15
44 Transcript, PN 1507
45 Exhibit R4, paras 21 – 25
46 Transcript, PN 1387 - 1389
47 (2003) unreported, PR931440, at [30]
48 Exhibit A1, paras 34 - 35
49 Exhibit R2, para 50; Exhibit R5, attachment CZW-5
50 Exhibit R2, para 45
51 Exhibit R5, para 61
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