No judgment structure available for this case.

[2020] FWC 6657

FAIR WORK COMMISSION

DECISION

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

Polgampola Abeyratna
v
Iron Mountain Australia Group Services Pty Limited
(U2020/7733)

DEPUTY PRESIDENT SAMS

SYDNEY, 14 DECEMBER 2020

Termination of employment – application for an unfair dismissal remedy – courier and warehouse assistant – off work for 15 months – medically unfit – historic grievances – applicant will only return to work if all his grievances are reopened and resolved to his satisfaction – other proceedings – no medical evidence that the applicant will be fit to Return to Work (‘RTW’) in any capacity in medium term, or at all – valid reason for dismissal – applicant warned of possible dismissal – no procedural unfairness issues – remedies sought impermissible – no mitigating factors – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] By application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) and dated 4 June 2020, Mr Polgampola Abeyratna (the ‘applicant’) seeks orders from the Fair Work Commission (the ‘Commission’) in respect to his alleged unfair dismissal by Iron Mountain Australia Group Services Pty Limited (the ‘respondent’) on 27 May 2020. The orders sought are:

‘a. Annul the termination of employment notice at Annex A considering above attachment paragraph 78 reasons.

b. Order the employer to investigate the complaints and enquiries rose at above attachment 1 paragraph 50 and attachment 2 to this correspondence.

c. Order the employer to re instate until a decision of workers compensation receives.

d. Order the employer to re commence the abandoned re deployment options proposed by the employer.

e. Enforce civil penalties to the employer if they have found responsible for any of the complaints and enquiries raised at above attachment 1 paragraph 50 and at attachment 2.

f. Order the employer to explain as to why they took a decision to terminate the employment despite my objections and why it was not considered to terminate the employment under redundancy. In this context the employer declared that my position is redundant.’

[2] The applicant was a Warehouse Information Specialist employed under the Storage Services and Wholesale Award 2010 (the ‘Award’) and at the relevant time was paid an annual base salary of $50,171. Shortly stated, at the time the applicant was dismissed, he had not worked for the respondent since February 2019 (some 15 months) and had been on unpaid leave since 4 October 2019. On 4 May 2020, the respondent wrote to the applicant as follows:

‘Dear Poly

You have been on continuous unpaid leave since 4 October 2019, and prior to that period had exhausted all of your paid personal and annual leave following the cessation of your workers compensation payments on 13 August 2019.

We tried to meet with you in October last year to discuss redeployment options but you were not prepared to come to a meeting.

Given that you do not appear to be in a position where you will be able and prepared to return to work in any capacity, we are considering terminating your employment. Before make a final decision we invite you to write to us and set out why we should not terminate your employment. Please note this is not an invitation to canvass your previous grievances, which we have dealt with, and which were the subject of your General Protections claim which you did not progress. It is an opportunity to provide us with any evidence that shows you will be fit to return to work in the near term.

You need to be aware that as it is well over a year since you last performed any work, and we have no indication that you will be returning to work, your on-going employment is at risk.

Please provide a response by Monday 11 May 2020. If you cannot respond in this time-frame please contact myself to request an extension of time.

One (sic) we have your response we'll make our final decision.

Yours faithfully,
Victoria Casey’

[3] The applicant responded in a 3-page letter dated 11 May 2020 which will be discussed later in this decision; suffice to note at this point that the applicant would not return to work until 15 past grievances were addressed to his satisfaction, notwithstanding the respondent had investigated the grievances and had, for its part, addressed them to conclusion.

[4] The respondent dismissed the applicant in a letter dated 27 May 2020 which reads as follows:

‘Dear Polgampola,

I refer to your letter dated 11 May 2020.

We asked you to write to us and provide us with any evidence that shows you will be fit to return to work in the near term. Your letter contained nothing that does that, and instead provides further evidence that you remain unfit for work for the foreseeable future.

It is not feasible for us to keep you on unpaid leave indefinitely. Given the time that has elapsed since you last worked, which was in February 2019, and there is no indication that you will be fit to return to work in any capacity in the future, we are terminating your employment effective 28 May 2020.

Under your contract you are entitled to one months’ notice, but as you are over 45 and have more than 2 years’ service, we are required to give you 5 weeks’ notice under the Fair Work Act. As you are currently on unpaid leave, that notice period will also be unpaid, and will expire on 3 July 2020.

We wish you the best in finding appropriate employment

Yours faithfully,
Victoria Casey’

[5] In accordance with my usual practice, I listed the matter for hearing and issued directions and convened a further conciliation on 30 July 2020. The application was not resolved, and the matter proceeded to arbitration on 22 September 2020. At the hearing, the applicant appeared for himself with the assistance of an accredited Sinhalese interpreter, although his documented material disclosed that he writes and reads English very well, and a 2018 doctor’s certificate recorded that he ‘speaks English well’. Given these circumstances, I determined that the proceedings would not be fully translated, but if the applicant had difficulty with any words or concepts he did not understand, recourse could be had to the interpreter. The respondent was represented by Ms S Price, Solicitor, Susan Price Legal, with in-house Counsel, Ms S Brzoska. Given the complexity of the matter and the legal principles involved, I granted permission for the respondent to be represented by a lawyer, pursuant to s 596 of the Act.

[6] The applicant provided three witness statements with numerous annexures. The respondent relied on the witness statements of Ms Joanne Regan, GSRS Administrator and Return to Work Coordinator, and Ms Victoria Casey, Senior HR Business Partner.

Preliminary observations

[7] Much of the applicant’s material was provided and relied on by him in earlier workers’ compensation proceedings which were not pursued, and a General Protections (‘GP’) application filed in the Commission alleging adverse action and discrimination. This application was also not pursued after a conciliation conference in 2019. I note the applicant recommenced proceedings in the Workers Compensation Commission (‘WCC’) on 26 June 2020. Before turning to the applicant’s evidence, it is useful to observe that the applicant’s grievances had been addressed by the respondent in a meeting on 10 April 2019 and in a comprehensive written response to his grievances on 26 August 2019.

[8] It is plainly evident, that the applicant has never accepted the outcomes of the respondent’s addressing of his grievances and has maintained (and continues to do so) that he will only Return to Work (‘RTW’) once all his workplace grievances have been resolved and addressed to his satisfaction. Given this stalemate, and there being no evidence of his ability to RTW, the respondent claimed it had no alternative but to dismiss him. As I will later explain, the applicant’s RTW, only on such conditions, was not only unreasonable and unacceptable, but ultimately it is not really relevant to whether the respondent could have any confidence that the applicant could RTW, without medical certification of his fitness to do so. For these reasons, much of the applicant’s materials are repetitive and argumentative, and are irrelevant to the central question to be determined in this case – did the respondent have a valid reason for dismissing the applicant? I turn now to the respective cases of the parties.

Case for the applicant

[9] The applicant claimed that there were two phases in his employment with the respondent. The first was a temporary agreement period for work as a courier based at the Moorebank site in New South Wales from 1 June 2018 to 31 January 2019. The second phase was from 1 February 2019 to his dismissal which was when he was ‘100% on psychological sickness leave due to [a] series of bullying and harassment incidents during the first phase’. He said that these incidents are being investigated by the WCC. He believed that the decision to terminate his employment highlighted a ‘process of procedural unfairness’ and the Commission should annul the termination notice and instruct the employer to rectify the ‘employment confusion’ before he recommences employment.

[10] The applicant described his earlier grievances in 2016, 2017 and 2018, all of which he claimed had not been addressed. The saga commenced in May 2018, when the applicant said he was not provided with a job description as a courier and it was a risk to his health and safety without one. As there is no power for the Commission to instruct the employer to rectify these issues, I need not elaborate on them, but they may be summarised as follows:

(1) Promotion complaint

The applicant said he was verbally promised a promotion in July 2016, but when he did not receive it, he lodged a complaint on 29 March 2018 with the NSW Manager.

(2) Threat complaint

On 9 November 2016, the applicant claimed a fellow worker threated him after he (the applicant) was appointed Acting Supervisor. Although the other employee was dismissed on 10 November 2016, he continued to attend the site and threaten the applicant. He made verbal complaints to the Site Manager about the threats and his request for an investigation into safety protocols was denied.

(3) Forklift licence complaint

In April 2017, the applicant sought the reimbursement of his forklift licence renewal fee, but it was refused.

(4) Transfer to Moorebank

From September 2017 to March 2018, the applicant sought meetings about changes to his position on being relocated to Moorebank and his contracted duties. The Site Manager refused to meet with him.

(5) Vehicle complaint

In March 2018, the applicant objected to the Site Manager’s direction to return the work vehicle to Moorebank at the end of the day, rather than ‘park it at the Glendenning warehouse’.

(6) Various requests for backpay and other matters

On 2019 March 2018, the applicant made the following requests:

‘a. for back pay for the dual duties performed for the period 22 September 2017 to 29 March 2018 which is $21300;

b. for a new employment agreement be drafted to reflect to my dual duties;

c. that I be treated equally with other respondent employees and be allocated rostered day’s off (RDO’s);

d. for a mobile phone allowance;

e. that a Courier uniform be issued (summer and winter);

f. that I be reimbursed for parking tickets fees (not fines);

g. that assurance be provided that my Position would not be redundant if my Courier duties were outsourced;

h. seeking permission to park the respondent’s vehicle overnight at my residential address; and

i. that after hours Courier duties be shared between more than one driver and based on a roster. Collectively, the 29 March Enquiry.’

The applicant claims that none of these matters were addressed and he had to ‘work under duress’.

(7) Dual duties complaint

The applicant said he was required to perform dual duties contrary to an agreement. He was asked to retrieve files from stored locations, scan outbound deliveries and move pallets from the forklift and manual lift area. On 1 August 2018, he requested a ‘job description so he could perform the dual duties safely’. No response was received, and he attended a General Practitioner (‘GP’) ‘as a result of making this complaint’. He was provided leave for three days and referred to a psychologist who he has attended monthly ever since.

(8) Bullying and harassment complaint

The applicant claimed he was bullied by Ms Bianca MacPhail on 17 December 2018 and he reported her conduct. On 8 January 2019, he claimed Mr Rajneel Ramlu verbally abused him. He requested a toolbox meeting to clarify roles. The applicant was directed to attend a meeting with management on 10 January 2019, which he believed was to discuss his complaints. However, he was told he would not be working at the new Oakdale premises as its culture was different to his. He took offence at this, but was told it was his business culture which was the issue, in that he:

(a) did not possess the relevant skills;

(b) did not work minimum weekly hours; and

(c) refused to perform dual duties.

His complaints were then escalated to HR, and throughout January 2019, he made further complaints and requests for investigations into discriminatory comments and the respondent’s Grievance Handling Policy.

[11] On 6 February 2019, the applicant said he was diagnosed with a major depressive disorder and declared unfit for work. He next made a request to RTW on 26 February 2019 and sought a meeting to discuss the conditions of his return. A meeting was scheduled for 10 April 2019, where the applicant claimed the respondent had included wrong and misleading information as to its enquiries and responses to his complaints. Further meetings were cancelled.

[12] On 9 August 2019, after being directed to attend an Independent Medical Examination (‘IME’) on 23 August 2019, the applicant responded by:

‘a. Confirming that I would attend the independent medical consultant;

b. Enquired as to whether the Moorebank or Oakdale location was to be my place of work;

c. Enquired whether I would be performing the pre injury courier duties;

d. Enquired whether a new employment contract would be issued;

e. Enquired whether my Position was redundant;

f. Enquired whether the Investigation Enquiry had been completed;

g. Enquired as to whether Mr Paoletti escalated his Burrow Road Complaint as per the Policy;

h. Enquired about back-dated RDO’s;

i. Enquired about my sick and annual leave balances;

j. Enquired whether the Company would be terminating my employment by reason of illness’

k Requested confirmation of any warnings that had been issued against me;

l. Enquired as to how I could return to a workplace that had caused the injury and no action had been taken to ensure a safe workplace;

m. Requested that Mr Paoletti address each concern/enquiry so that I may take all relevant material to the IME. Collectively the Return to Work Enquiry’.

[13] On 23 August 2019, the applicant attended the IME and was assessed as unfit to RTW and perform pre-injury duties. The applicant then claimed he was subject to the following adverse action:

‘a. Direction to attend the IME - 8 August 19

b. Return to work Inquiry - 9 August 19

c. IME - 23 August 2019 and

d. Courier position is redundant - 26 Aug 19’

[14] The applicant claimed his termination of employment was adverse action in response to him making a RTW inquiry (although he had not been dismissed at the time he filed the GP application in 2019). The applicant denied the respondent’s assertion that his complaints had been actioned and finalised, and he continued to be treated by a psychiatrist and a psychologist who continue to state he is suffering from depression. He does not believe he is fit to do any work at the moment.

[15] Witness Statements 2 and 3 deal for the most part with the applicant’s workers’ compensation matter and recent doctor’s reports, one of which is particularly relevant to the applicant’s unfitness to RTW. Statement 2 includes an amended Certificate of Determination of the WCC, dated 14 September 2020 which reads, inter alia:

‘1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 6 February 2019.

2. The defence relying on section 11A(1) of the Workers Compensation Act 1987 with respect to transfer is not made out.

3. The claim for permanent impairment compensation is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for determination of the permanent impairment arising from the following:

Date of injury: 6 February 2019 (deemed)

Body systems referred: Psychological injury

Method of assessment: Whole person impairment.

4. The documents to be referred to the AMS to assist with their determination are to include the following:

(a) This Certificate of Determination and Statement of Reasons;

(b) Application to Resolve a Dispute and attachments;

(c) Reply and attachments; and

(d) Respondent's Application to Admit Late Documents dated 12 August 2020 and attachments.

5. As a result of the injury set out in (1) above, the applicant has suffered incapacity for employment.

6. At the time of his injury, the applicant's Pre-injury Average Weekly Earning totalled $1,106.31 per week.

7. The applicant was paid weekly compensation by the respondent from the date of injury to 9 August 2019, a period of 26 weeks.

8. From 10 August 2019 to date, the applicant has remained totally incapacitated for employment.

9. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 for the period 10 August 2019 to 8 February 2020 (being 26 weeks) date and continuing at the rate of $885.05 per week, being 80% of the applicant's Pre-injury Average Weekly Earning.

10. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.’

[16] The applicant believes that because he continues to be paid workers’ compensation after his dismissal, this means he remains an employee and the notice of dismissal has ‘no enforceable value’.

[17] Although Witness Statement 3 is essentially the same as 2, the respondent objected to it, having been filed 2 days before the hearing and outside the Commission’s directions. Nevertheless, the third statement was admitted into evidence.

[18] In cross examination, the applicant was referred to his employment agreement which provides as follows:

‘3.1 The Employee must:

a) perform the duties set out in the job description contained in Schedule 1 together with such other duties as may be specified by the Company from time to time during the hours specified in Schedule 1 and at the location specified in Schedule L or at such other place(s) as the Company may reasonably require from time to time;

b) perform to the best of the Employee's abilities and knowledge the duties assigned to the Employee by the Company from time to time, during such reasonable hours as the Company's business requires;

c) act in the Company's best interests and must not engage in any external work (whether as an employee, contractor or otherwise) without the prior approval of the Board or senior divisional management;

d) comply with all reasonable directions of the Company from time to time;

e) comply with all law applicable to the Employee's position and the duties assigned to the Employee; and

f) comply with all reasonable requests by the company to have post employment criminal record screening and any other associated screening requirements conducted as part of your employment conditions. This would include requests from the company clients from time to time. ln the event that a criminal record check conducted post employment reveals a criminal record the company may rely upon this as grounds to terminate your employment.

g) report to the person or persons nominated by the Company from time to time.’

[19] The applicant agreed being asked to do other duties and at other locations was what happened during his employment. It is not disputed that he had not worked since February 2019. Dr Kumar’s most recent report dated 15 March 2020 and which was used in the WCC proceedings, resulting in the Determination; see: [15] above, stating:

‘You (sic) opinion as to Mr Abeyratna's fitness for work from 6 February 2019. If you believe that Mr Abeyratna does have some capacity to do some work, can you set out what restrictions would apply in terms of hours per week or other restrictions.

Mr Abeyratna is currently unfit for work. He continues to experience depressive syrnptoms. The pharmacological and psychological treatments has either been ineffective or has caused side effects.

Your prognosis.

The prognosis for Mr Abeyratna is poor. He has tried multiple antidepressant medications and almost all of these have resulted in side effects such as skin rashes. The response to the pharmacological treatment has been very poor. He has also taken part in psychological therapy, however this has also not led to any significant improvement in his condition. As he has an ongoing stressor about his work, this has perpetuated his symptoms and overall has made the prognosis poor.

I hope the above information has been useful for your purposes. If you have any questions, please feel free to contact me.

Thank you

Sincerely

Dr Mukesh Kumar
Consultant Psychiatrist’

[20] The applicant acknowledged that the respondent’s letter of 4 May 2020 advised him his employment was at risk if he did not provide evidence of being fit to RTW. He responded to the letter, but denied the complaints he had identified had been investigated and concluded. The applicant was then referred to the five pages of the notes of the meeting held on 10 April 2020 in which he had made handwritten comments about all the issues that were known by the respondent at the time. The notes record that when he was asked what action should be taken by HR that would satisfy him and enable him to achieve closure, he replied ‘I want them all warned and dismissed’. He did not deny this comment.

[21] In response to the respondent’s direction that the applicant attend an IME, he raised all his grievances again and said he would not be satisfied unless several members of staff, including senior managers, were ‘punished, made to suffer and dismissed’.

[22] The applicant did not accept that his conditions for a RTW were only that he gets his own way and the results, he wants from his complaints. He just wanted a workplace free of any troublemakers and for the Company to accept his views.

[23] The applicant was then referred to Dr Saad’s report of 23 August 2019, in which the Doctor said:

‘Work Capacity:

Mr Abeyratna and I agreed that he is medically fit to return to full time work as a Warehouse Assistant and Courier Driver.

Mr Abeyratna advised that he would only agree to return to work once all his work place grievances have been addressed and resolved.

Joanne, should further discussion of this report be required, please do not hesitate to contact me.

Many thanks,
Dr Doumit Saad’

In respect to this report, the following exchange in cross examination is telling:

Ms Price: ‘Do you remember telling Dr Saad that you would only agree to return to work once all your workplace grievances had been addressed and resolved?’

The applicant: ‘Yes. Yes, with Victoria (indistinct).’

Ms Price: ‘But Dr Saad discussed with you, didn't he, that you were medically fit to return to work?’

The applicant: ‘Yes, understood.’

Ms Price: ‘But you were refusing to return to work until your grievances had been resolved to your satisfaction?’

The applicant: ‘That's right.’

The applicant also stated that he could only RTW if the ‘toxic environment’ is removed.

[24] The applicant agreed that when he first became unwell, Ms Regan tried to find a location where he could work. However, he also agreed that there were a number of people at a number of sites who he was not prepared to work with.

Case for the respondent

[25] The applicant sought to cross examine Mr Garry Valenzisi who had made a statement in the applicant’s workers’ compensation case. I upheld the respondent’s objections as to the relevance of this statement. Ms Joanne Regan provided a witness statement, but the applicant had not indicated to the respondent that he wished to question her. Her statement was admitted into evidence.

Ms Joanne Regan

[26] As part of her role, Ms Regan had commenced meetings with the applicant in February 2019 to discuss his RTW. The focus was to find suitable duties for him to perform, but there were sites where he would not work and people who he refused to work with. However, work was identified at a Greystanes site. A meeting was organised at the site on 26 February 2019, including the applicant and Dylan Dual, the insurer’s rehabilitation provider. Prior to the meeting, the applicant provided Ms Regan with an 80-page bundle of documents dealing with his complaints and grievances. Ms Casey undertook to come back to the applicant and respond to his workplace issues. A further meeting was held on 10 April 2019 to propose a RTW and seek closure of his issues. This meeting was one where the notes were prepared which the applicant wrote on; see: [20] above.

[27] Ms Regan said the insurer disputed the applicant’s workers’ compensation claim, and he did not receive any workers’ compensation payments from 13 August 2019. Ms Regan understood that the applicant underwent a medical examination by Dr Bisht in March 2019. The Doctor’s report states that he was fit to carry out his pre-injury role of 20 hours a week, but he was not keen to RTW. Dr Bisht opined that the applicant’s condition was not fully resolved and would take 3-6 months. A further IME was arranged with Dr Saad on 23 August 2019. Dr Saad concluded:

‘Mr Abeyratna and I agreed that he is medically fit to return to full time work as a Warehouse Assistant and Courier Driver.

Mr Abeyratna advised that he would only agree to return to work once all his work place grievances have been addressed and resolved.’

[28] As a result, Ms Regan and Ms Casey wanted to meet with the applicant to discuss his RTW and redeployment options. Despite several attempts in October and November 2019 to do so, no meeting took place. The applicant continued to provide medical certificates from February 2019 to the end of his employment attesting he had no capacity for work. The last of these was for the period 18 July 2020 to 17 August 2020.

Ms Victoria Casey

[29] Ms Casey described the applicant’s employment from when he commenced at the Glendenning facility. In August 2017, this facility closed, and its operations relocated to Moorebank from Oakdale. At this time, the applicant's duties, in accordance with his employment contract, were that of a courier. In May 2018, it was contemplated that when the Oakdale site reopened, the applicant would move there as a Warehouse Assistant – the original role he had been hired for. Ms Casey said this was not a ‘temporary agreement’, as stated by the applicant. There was no new contract and the applicant’s terms of employment were unchanged. By the time the Oakdale site did reopen (January 2019) the applicant’s position was no longer required and he was advised on 10 January 2019 that he would maintain his existing courier role at Moorebank. The applicant made a complaint about the meeting and the direction, and since that time, he has alleged he is unable to work due to a psychological injury. Ms Casey referred to the meeting on 26 February 2019 about the applicant’s RTW. Ms Meghan Spencer had been the person investigating the applicant’s complaints, but had since left the business (the applicant has accused Ms Spencer of bullying). Ms Casey accessed her files and made a summary of his complaints for the meeting on 10 April 2019. At this meeting, the applicant did not agree to any of the respondent’s findings and raised a complaint of victimisation. He was told to put it in writing with sufficient details.

[30] Ms Casey said a further meeting was scheduled for 7 May 2019, but it did not proceed. Around this time, the business was subpoenaed to supply records for the workers’ compensation claim. Ms Casey believed that the different issues were ‘getting muddied’. The claim was rejected on 9 August 2019. The applicant challenged this in the WCC, but the applicant changed solicitors, did not pursue the claim and the proceedings were discontinued, (they were recommenced on 20 August 2020).

[31] On 26 August 2019, Ms Casey advised the applicant of the possibility that his position as a courier would be made redundant, as his absence from work since February 2019, meant his tasks were reallocated across the Team. Ms Casey had hoped the letter had answered all his questions and they could move forward to discuss redeployment options. As a result, the applicant threatened a GP application and there was an offer to resolve the matter by ending his employment on 30 September 2019 on redundancy grounds. Agreement was reached and a signed deed was sent to his lawyers, but as the applicant would not agree to release the respondent, it did not proceed.

[32] Ms Casey said that from October 2019, she had made numerous attempts to arrange a meeting with the applicant to discuss redeployment, but he would not attend unless his grievances were reopened. In the meantime, the applicant lodged a General Protections claim but it did not resolve.

[33] Ms Casey said the applicant was on periods of workers’ compensation and sick leave from 10 February 2019, and on unpaid leave since 30 September 2019. Ms Casey referred to 4 May 2020 meeting, which had sought an update of his ability to RTW, that the position was now untenable, and his ongoing employment was at risk. He replied with the same complaints and refusing to meet unless on his terms. No evidence was provided of any ability for him to RTW. As a consequence, Ms Casey recommended he be dismissed with five weeks’ notice. Although the respondent believes he was terminated for incapacity to perform work and with no indication of when, or if he could RTW, the Company had offered to settle the matter on a number of occasions on the grounds of redundancy, the most recent offer being made on 30 July 2020.

[34] In cross examination, Ms Casey confirmed that the Company will not agree to reopen his grievances, as they have been investigated and resolved. The applicant then sought to raise his complaints and grievances with Ms Casey. Ms Price objected as to relevance. I ruled that as the complaints related to his workers’ compensation matter, they are irrelevant to the reasons for his dismissal.

[35] Ms Casey was asked if there was a document recording the resolution of the applicant’s grievances. Ms Casey said the notes of the meeting of 10 April 2019 records the outcome with the applicant’s own handwritten notations, and many of the same complaints were investigated by a third party during the workers’ compensation matter.

SUBMISSIONS

[36] Both parties filed written submissions which, in substance, reflects their respective positions as referred to earlier in this decision. No reliance was had on any authorities of the Commission on the relevant issues in this case. The respondent cited each of the provisions of s 387 of the Act and stressed that the applicant had been requested on numerous occasions to demonstrate his fitness to RTW. He would not do so until all his grievances were resolved to his satisfaction. This was not accepted by the respondent. In any event, the most recent medical advice is that the applicant is unfit for any work and with no prognosis of when he might be fit to do so. The applicant could not be reinstated, even if the matter got to that point. Further, given the many offers to settle the matter, the respondent will be seeking costs if, ultimately, he does not succeed in this case.

[37] The applicant submitted that the ‘entire episode’ is captured in the documents he had submitted in evidence. He did not refer to the specific provisions of s 387 of the Act and slightly modified the remedies he seeks, as follows:

‘7. Initiate action to annul the respondent’s dismissal notice issued dated 27 May 2020 and to re-instate the applicant in the original position of warehouse assistant.

8. Order the respondent to re commence the abandoned redeployment discussions.

9. Order the respondent to follow the instructions as per the respondent’s grievance policy when resolving the unresolved complaints and enquiries.

10. Order the respondent to restore a toxic free and suitable location for the applicant to re commence employment.

11. Order the respondent to release the exploited wages amounting to $21,300.00.

12. Order the respondent to report to FWC on the progress of resolving issues of the applicant as per the grievance policy.’

[38] I have taken into account all of the documents and submissions of the applicant, including those which have little relevance to the central issue in this case. I am comfortably satisfied he has put before the Commission everything he wishes to say in support of his case for remedies from his alleged unfair dismissal.

CONSIDERATION

Statutory provisions and relevant authorities

[39] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The sections read:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Specifically, I find as follows:

(a) the applicant was dismissed at the initiative of the employer on 27 May 2020;

(b) the applicant’s unfair dismissal application was lodged within the 21-day time limit set out at s 394(b) of the Act;

(c) the applicant completed the minimum employment period set out at ss 382 and 383, being over 4 years; and

(d) the applicant’s employment was governed by a modern award; see: [2] above (s 382(b)(ii)).

It follows that the only matter required to be determined in this case is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, pursuant to s 387 of the Act. It is to that question I now turn.

Meaning of ‘harsh, unjust and unreasonable’

[40] The matters required to be taken into account by the Commission, under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[41] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[42] There are a number of Full Bench decisions which have considered whether an employee’s dismissal, within the meaning of s 387(a) of the Act, based on an inability to perform the inherent requirements of the job, due to a medical condition or injury, constitutes a valid reason for dismissal; see: Ermilov v Qantas Flight Catering Pty Ltd PR956925; J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292; Ambulance Victoria v Ms V[2012] FWAFB 1616; Birdi v Rail Corporation New South Wales t/a RailCorp NSW[2012] FWAFB 1404; Jetstar Airways Pty Limited v Neeteson-Lemkes[2013] FWCFB 9075 (‘Jetstar’); Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218; TNT Australia Pty Ltd t/a TNT v Martin[2017] FWCFB 1510; and CSL Limited t/a CSL Behring v Papaioannou[2018] FWCFB 1005 (‘CSL Behring’). The decision in Boag is the one most frequently cited, and I also intend to do so. At [21]-[27], the Full Bench said:

‘[21] The appellant further argued that the Commissioner placed particular reliance upon the view of Dr McDonough that “a slow, partial return to some duties may be possible”, and the view of Associate Professor Mendelson that she should “resume duties on a gradual basis following an appropriate period of training and under a period of supervision”. It argued that the Commissioner’s reasoning was essentially that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held.

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992(Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:

“[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

"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." [ibid. at 295]”

[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.” Her Honour noted:

“[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character.

[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”

[26] Gaudron J also noted that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.

[27] McHugh J drew attention to the distinction between an employee’s job and their position:

“[72] In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job"[66]. A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.

[73] In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between "a particular position" and "a particular job". In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the "job" of President if that term refers to the work done by the President.”’

[43] Importantly, the Full Bench decision in Jetstar makes clear that the decision of the employer to dismiss an employee on capacity grounds, is to be assessed on the material available to the employer ‘at the time of dismissal’ and not some uncertain, indefinite, speculative time in the future. So much so is clear from the following passage in Jetstar at [55]:

‘However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Thus in Dundovich v P&O Ports - a case which concerned the dismissal of an injured employee who was dismissed because, for the foreseeable future, he would not be able to perform all the duties of his position - a Full Bench of the Commission found that it was necessary to take into account a court judgment that the employee’s injury was work related, even though that judgment post-dated the dismissal, because the judgment was declaratory of facts and legal rights in existence at the time of dismissal.’(my emphasis)

Whether the employee was notified of the reason for his dismissal – s 387(b)

[50] The applicant was notified of his possible dismissal on 4 May 2020 and notified of his dismissal on 27 May 2020. This is a neutral factor.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[51] The applicant was given an opportunity to respond to the reasons for his dismissal on 4 May 2020. He did so in writing on 11 May 2020.

[52] Lest there be any doubt, it must be stressed that the obligation on an employer is to provide an employee with an opportunity to respond to a proposed termination of employment and genuinely consider the employee’s response. To be clear, the employer’s obligation does not require agreeing to what the employee says in any response. Given the applicant’s responses (notwithstanding they did not address the real issue) and the time he had to do so, I accept that this criterion was more than satisfied. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[53] As the applicant refused to attend any meeting with management unless it agreed to reopen his grievances, there was no in-person meeting in relation to his dismissal. Accordingly, there was no request, let alone a refusal, to allow him to attend any meeting to discuss his dismissal. I note, nevertheless, that the applicant appears to have engaged lawyers, from time to time in respect to the issues he has had during his employment. This is a neutral factor in the matter.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[54] This criterion is not relevant in this case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and 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 – s 387(g)

[55] The respondent is a relatively large employer with approximately 400 employees engaged over a number of sites. It has the benefit of dedicated HR support and advice and involved its rehabilitation advisors throughout the applicant’s recent employment. It has, at all times, sought to accommodate the applicant’s persistent, unreasonable and unacceptable demands and undertook at his request, ongoing investigations into his grievances and complaints. In the face of the applicant’s lack of cooperation and refusal to focus on the relevant issues, the respondent is to be commended for its patience and attention to trying, albeit unsuccessfully, to accommodate all of the applicant’s concerns. It has no doubt expended considerable time, resources and costs in doing so, in the face of unbelievable resistance, including in various other legal proceedings.

This further tells against a finding of unfairness.

Any other matters the Commission considers relevant – s 387(h)

[56] I have also had regard to a number of other relevant matters.

(1) The applicant has only had a relatively short period of service, given for 15 months of the 4 years of his employment, he did not do any work for the respondent.

(2) To the extent the applicant has claimed he has sought legal advice, his communications to the respondent, particularly in respect to reasonable settlement offers, disclose claims which no competent legal practitioner would have ever advised. For example, he claimed he could not be dismissed while on workers’ compensation. Putting aside he was not on workers’ compensation at the time, but unpaid leave, this assertion is simply wrong. Secondly, he refused to settle his claim for a significant sum because the deed might affect his workers’ compensation claim. This is also incorrect. No deed of settlement can carve out or contract out of an employee’s workers’ compensation rights.

(3) The applicant’s contempt for those in management he perceived had wronged him and the retribution he sought against them was palpable – ‘I want them all to be warned and dismissed … I want them punished, made to suffer and dismissed’. Given these comments, it would be unthinkable that there could be any restoration of trust or confidence in the employment relationship.

(4) Assuming the applicant is seeking financial compensation, the fact he is receiving workers’ compensation payments at 80% of his pre-injury earnings would need to be taken into account; see: Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (‘Sprigg’). It seems to me that even if compensation was considered appropriate (which it is not), the result would be nil or very negligible.

(5) As earlier mentioned, and despite it being clear the orders the applicant seek are outside the Commission’s jurisdiction, his reply submission continues to agitate for 5 of 6 orders (see: [1] above) which cannot be made by the Commission. Further, in respect to the request for reinstatement, this could not be an order the Commission could make, given the consistent and recent medical advice that he is unfit for any position, and unlikely to be fit for any work at any time in the future.

CONCLUSION

[57] For the aforementioned reasons, I am satisfied that the applicant’s dismissal on 27 May 2020, was not ‘harsh, unjust or unreasonable’ and therefore not unfair. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[58] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.

[59] Accordingly, application U2020/7733 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Ms S Price, Solicitor, Susan Price Legal, instructed by Ms S Brzoska, appeared for the respondent.

Hearing details:

2020.

Sydney (via Microsoft Teams):

22 September.

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