Polo Innamorati v Fluor Rail Services Pty Ltd

[2014] FWC 5886

[2014] FWC 5886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Polo Innamorati
v
Fluor Rail Services Pty Ltd
(U2013/13189)

DEPUTY PRESIDENT MCCARTHY PERTH, 5 SEPTEMBER 2014

Application for relief from unfair dismissal.

Background

[1] Mr Polo Innamorati (the Applicant) was dismissed from his employment by Fluor Rail Services Pty Ltd (the Respondent).

[2] The Respondent provides track maintenance, construction and replacement and maintenance of track machines for Rio Tinto Iron Ore’s (RTIO) Heavy Haul Railway (HHR) in the Pilbara region of Western Australia.

[3] The Applicant was employed under the terms of the Fluor Rail Services Pty Ltd, Pilbara Region, Trades (AMWU & CEPU) Enterprise Agreement 2013 (the Agreement). The Applicant was a leading hand boilermaker which is a ‘Tradesperson 3’ under the Agreement. He had been employed since 1987 by the Respondent and had been performing the role, or similar roles, prior to his dismissal for about 15 years.

[4] The Applicant described his role as involving cleaning any dirt and dust out of the switch mechanism, applying lubricant to the switch mechanism, adjusting the switch, replacing any broken components, tightening up the point blades and stock rails, and repairing any mechanical issues with the switches (including welding work).

[5] Employees performing the function of the Applicant worked in pairs. The Applicant’s work mate was usually Mr John Bernard (Barney) and work functions would be shared and swapped between them. Typically they would start work with an inspection of the switches and ascertain what work would need to be performed. Whilst performing this function it was obligatory that the inspection be carried out under a “white flag”. Working under a white flag meant that one them would stand aside from the track well in front of where the inspection was being carried out and if a train approached, holding up a white flag to the train driver. The train driver would normally acknowledge the white flag by blowing the horn.

[6] The Applicant’s role was described by the Respondent as involving the undertaking of maintenance work directly on the RTIO HHR. This included performing maintenance on the switches and turnouts which directed the trains. The Applicant was required to regularly i.e on a daily basis: a) perform work within the ‘Rail Safety Corridor’ (this means he was required to work within 3 metres of the railway track); and b) take ‘possession of the railway’ so that he could ensure that maintenance work could be performed without trains entering the section of the track being worked on. The purpose of this procedure was explained so that the train driver is informed that someone is on the track, and that once he sees the white flag he blows the horn “he’ll acknowledge you that he’s seen you and then that he’s coming through that area you clear the track, get off”.

[7] The Respondent submitted that it is required to comply with various legislative requirements in order to ensure the health and safety of its employees. The Respondent asserted that it is a requirement of the Applicant’s employment that he be deemed fit and pass a Category 1 Medical Test as per the National Standard for Health Assessment of Rail Safety Workers (the National Standard). They say that on 26 July 2013 the Applicant did not pass the Category 1 Medical Test and was deemed to be unfit for work for ten years from 5 April 2013.

[8] The Applicant asserts that the work he performed was not such that he was required to pass a Category 1 Medical Test but rather a Category 2 Medical Test. They argue that the Applicant was not tested for Category 2 work. The Applicant claims that subjecting him to a more stringent test than the test that was more appropriate for the type of work he performed gives rise to an invalid reason for the dismissal.

[9] Given this background the relevant safety instruments and their application were canvassed in some depth.

The arguments

What were the regulated obligations?

[10] Both parties accept that the Occupational Safety and Health Act 1984 (WA) (the OSHWA Act) and the Rail Safety Act 2010 (WA) (the Rail Safety Act) applies to the work in question. The Applicant also submitted that the Mines Safety and Inspection Act 1994 (WA) (the Mines Safety Act) applied, although this was disputed by the Respondent.

[11] The Respondent gave a useful analysis of the Statutory regime for the regulation of safe work for the work concerned here from which the following is extracted:

“Occupational Safety and Health Act 1984 (WA)

4. ... The [OSHWA Act] applies to all workplaces (as defined) in WA unless its operation is specifically excluded by the operation of another law.

5. Section 19(1) of the OSH Act provides as follows:

An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer are not exposed to hazards …

Rail Safety Act 2010 (WA)

9. Section 3 of the RS Act defines ‘rail safety worker’ as “an individual who has carried out, is carrying out or is about to carry out, rail safety work”. ‘Rail safety work’ involves a range of classes of work as prescribed in section 7. This includes maintenance work: section 7(1)(d) and (f) of the RS Act.

10. Section 3 of the RS Act also provides that a 'rail transport operator' includes a “rail infrastructure manager or a rolling stock operator or a person who is both a rail infrastructure manager and a rolling stock operator”.

11. RTIO is a ‘rail transport operator’ for the purposes of the RS Act.

12. Part 2 of the RS Act outlines the relationship of the RS Act to the OSH Act.

13. Section 10 of the RS Act provides:

If a provision of the OSH Act applies to railway operations, that provision continues to apply, and must be observed, in addition to [the RS Act].

14. Section 11 of the RS Act provides that:

If a provision of [the RS Act] is inconsistent with a provision of the [OSH Act], the provision of [the OSH Act] prevails to the extent of any inconsistency.

15. Section 28 of the RS Act provides:

A rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator's railway operations.

...

17. Section 28(4)(a) of the RS Act provides that a ‘rail infrastructure manager’ contravenes subsection (1) if the manager fails to do certain things, including:

ensure so far as is reasonably practicable that any design …. maintenance, repair or decommissioning of the manager's rail infrastructure is done or carried out in a way that ensures, so far as is reasonably practicable, the safety of railway operations.

18. RTIO is a 'rail infrastructure manager' for the purposes of s.3 of the RS Act.

19. Section 3 of the RS Act defines 'railway operations' so as to include 'maintenance on the tracks’.

20. Section 29 of the RS Act extends the duties owed by a rail transport operator under section 28 to:

... a person who, not being an employee employed to carry out railway operations, undertakes railway operations on or in relation to rail infrastructure or rolling stock of the operator ...

21. It is submitted that the effect of section 29 of the RS Act is to extend the duty and obligations imposed on RTIO under section 28 to FRS when it undertakes railway operations (as defined) as a non-employee of RTIO. Put simply, section 28 imposes a duty on FRS as a contractor to RTIO.”

[12] The Respondent submitted from that analysis that the work performed by the Respondent on the RTIO HHR network is governed by the Rail Safety Act and the OSHWA Act, and that where there is an inconsistency between the two, the provision of the OSHWA Act will prevail.

[13] The Respondent also argues that s.73 of the Rail Safety Actrequires the Respondent (as a rail transport operator) to have and implement a health and fitness programme for rail safety workers who carry out rail safety work on or in relation to the rail transport operator’s rail infrastructure or rolling stock that complies with the prescribed requirements relating to health and fitness programmes.

[14] The Respondent also argues that Regulation 17 of the Rail Safety Regulations 2011 (WA)(the Rail Safety Regulations) provides that for the purposes of s.73 of the Rail Safety Act, the rail transport operator must have and implement a health and fitness programme for rail safety workers that complies, so far as is reasonably practicable, with Volumes 1 and 2 of the National Standard, as amended from time to time.

[15] The National Standard differentiates between three types of ‘rail workers’ and sets out the fitness for work and associated medical requirements that each category of worker is required to satisfy in order to perform ‘rail work’. The three categories are: a) Category 1 Safety Critical Worker (Category 1 Worker); b) Category 2 Safety Critical Worker (Category 2 Worker); and c) Non-Safety Critical Worker.

The National Standard

[16] The Respondent also outlined the operation of the National Standard and its status for the purposes of regulating safe work for rail operations. Section 73 of the Rail Safety Act provides that:

“a rail transport operator must have and implement a health and fitness programme for rail safety workers who carry out rail safety work on or in relation to the rail transport operator’s rail infrastructure or rolling stock that complies with the prescribed requirements relating to health and fitness programmes.” [Respondents emphasis]

[17] Regulation 17 of the Rail Safety Regulations then provides that:

“for the purposes of section 73 of the Act, a rail transport operator must have, and must implement, a health and fitness programme for rail safety workers that complies, so far as is reasonably practicable, with Volumes 1 and 2 of the National Standard for Health Assessment of Rail Safety Workers, published by the National Transport Commission, as amended from time to time.” [Respondents emphasis]

[18] The Respondent argues that by operation of s.29 of the Rail Safety Act and the manner in which it extends the duties imposed upon RTIO, it is bound to comply with any obligation contained in s.73 of the Rail Safety Act and regulation 17 of the Rail Safety Regulations.

[19] The purpose of the National Standard is described in the Introduction of the Standard as:

“Under rail safety legislation, rail transport operators are required to manage the risk posed by ill health or rail safety workers. This National Standard for Heath Assessment of Rail Safety Workers (the Standard) provides practical guidance for rail transport operators to meet these obligations. This responsibility is an essential part of an operator’s rail safety management system, which aims to minimise risks and protect the safety of:

● the public
● rail safety workers and their fellow workers
● the environment.

This Standard recognises health assessments as one aspect of an integrated management system aimed at achieving a high level of safety throughout the rail network ...

This Standard sets out how the health of rail safety workers is to be assessed. Assessments are to be based on a risk analysis of rail safety tasks and the best available medical evidence.”

[20] Importantly the National Standard describes its application as:

“The focus on this Standard is on risk management and achieving desirable outcomes rather than on prescribed processes. The provisions are described broadly so rail transport operators can implement systems and processes appropriate to their needs.

Should an agreement be reached at an enterprise level, this Standard does not preclude more comprehensive or frequent assessment. However, those who do implement different methods should consider issues such as anti-discrimination laws and industry interfaces.”

[21] The National Standard establishes two categories for Safety Critical Workers. The description of who falls within those categories is described as follows:

“Safety Critical Workers are further categorised depending on the potential risk associated with ill health.

● Category 1 Safety Critical Work/Workers. Category 1 workers are the highest level of Safety Critical Worker. These are workers who require high levels of attentiveness to their task and for whom sudden incapacity or collapse (e.g. from heart attack or blackout) may result in a serious incident affecting the public or the rail network. Single-operator train driving on the commercial network is an example of a Category 1 task.

● Category 2 Safety Critical Work/Workers. Category 2 workers are those whose work also requires high levels of attentiveness, but for whom fail-safe mechanisms or the nature of their duties ensure sudden incapacity or collapse does not affect safety of the rail network. For example, in many cases signallers are classified as Category 2 because fail-safe signal control systems protect the safety of the network in case of worker incapacity.”

[22] The National Standard also contains requirements in relation to the process for conducting medical assessments in accordance with the National Standard. Specifically:

● such assessments are required to be performed by health professionals appointed and authorised by the rail transport operator to conduct health assessment for safety work and should have demonstrated that they have relevant knowledge and understanding of the rail environment, the associated risks; the requirements of the Standard and that authorised health professionals should conduct health assessments in line with the procedures contained in the Standard; and

● the rail transport operator should appoint a suitably qualified and competent health professional to conduct the assessments of rail safety workers.

[23] Further, the National Standard provides that:

● ‘unpredictable, spontaneous loss of consciousness [such as blackouts] is incompatible with Category 1 Safety Critical Work’.

● the ‘default standard’ which applies to Category 1 Safety Critical Workers in relation to ‘seizures’ (including in relation to ‘sleep-only’ seizures) is that there must be a seizure- free period of 10 years before a return to Safety Critical Work. It applies in all but a number of defined situations that are associated with a lower risk of seizure related crash or incident. Only in these situations may work be resumed after a short period of seizure freedom.

● Category 2 workers are to be managed on an individual basis.

[24] Section 18.4 of the National Standard deals with Neurological Conditions and provides guidance and medical criteria of a number of specific conditions including Seizures and Epilepsy. There are about 6 pages of explanatory material and detailed explanation and guidance concerning seizures and epilepsy. The guidance directed at a Category 1 assessment provides that, a Safety Critical Worker cannot be deemed as fit for duty unless: (i) There have been no seizures for at least 10 years; (ii) An electroencephalography (EEG) shows no epileptiform activity; and (iii) the person follows medical advice, including adherence to medication if prescribed.

[25] The Respondent says that it is not in dispute that: a) the Respondent is required to comply with the Rail Safety Act, the Rail Safety Regulations and the National Standard; or b) the Respondent is a ‘rail transport operator’ and that the Applicant is a ‘rail safety worker’ for the purposes of the National Standard; c) the Applicant is a ‘Safety Critical Worker’ under the National Standard and not a ‘Non-Safety Critical Worker’ (that is, he falls within the definition of ‘a worker whose action or inaction, due to ill health, may lead to directly to a serious incident affecting the public or the rail network’).

[26] The Applicant does not dispute that the National Standardis the national standard that applies to all rail transport operators and to all rail safety workers in Australia.

[27] The Applicant submitted that for a Category 2 Safety Critical Worker the employee can be deemed as “Fit for Duty Subject to Review” based on a consideration of the nature of the task and subject to annual review: (i) If, in the opinion of the treating specialist and in consultation with the Authorised health Professional and the operator’s Chief Medical Officer (or an occupational physician experienced in rail), the risk to the network caused by a seizure is acceptably low; and (ii) the person follows medical advice, including adherence to medication if prescribed.

The facts and background

[28] The Applicant lodged a statement of facts to which the Respondent replied. Most of the facts are not disputed, although for some of the matters that are accepted the Respondent has given further explanation about the issue. From the statement of facts submitted by the Applicant and the response submitted by the Respondent the following facts emerge.

The work performed

[29] In 2010 the Applicant was required to perform the maintenance work on the switches from Cape Lambert to Mesa. The Respondent explained that this was in addition to the work the Applicant was required to perform on the Tom Price line. The Applicant was not required to work exclusively on one line.

[30] In 2011 the Applicant was transferred from the Cape Lambert to Mesa A line to instead work on the Dampier to Tom Price line. The gang would normally only work between Dampier and Koala Station. The Respondent contended that the Applicant may have performed more work on the Dampier to Koala Station, but he was not required to work exclusively on one line. He may have also performed work on the Deep Dale line (Cape Lambert to Pannawonica). The Applicant would perform the occasional shift at Tom Price to fill in when people were on leave. The Respondent noted that whilst the Applicant was employed locally, he was moved to different locations as required.

[31] The Applicant described his role as involving cleaning any dirt and dust out of the switch mechanism, applying lubricant to the switch mechanism, adjusting the switch, replacing any broken components, tightening up the point blades and stock rails, and repairing any mechanical issues with the switches (including welding work).

[32] The Respondentaccepted that the role outlined by the Applicant was correct; however they asserted that the duties listed by the Applicant formed only part of the Applicant’s role. They assert that the Applicant’s role also required him, in order to perform rail maintenance work, to take possession of the track. The Applicant was required to do this on a daily basis. This means that he was required to communicate with train control and, provided it was safe to do so, take control of a section of track so that he was protected from trains entering that section while he performed the maintenance work. Additionally, the Applicant was required to regularly work within the ‘Rail Safety Corridor’ (which is within 3 metres of the track) which is considered to be a highly dangerous area, and employees must have appropriate training and approval to access this.

[33] The Applicant was not responsible for the maintenance of the electrical components of the switches.The Respondent noted that they were responsible for the manual components of the switches but that the electronic components were the responsibility of RTIO signal technicians.

[34] The Applicant asserts that he was never rostered as a look-out or a gang supervisor to work with Barney. The Respondent agreed that they never rostered a gang supervisor to work with the Applicant but explained that this was because the gang supervisor is responsible for all gangs on the site and the activities being performed in the field. No one supervisor is aligned to a particular gang. However, it is incorrect to say that the Respondent never rostered a ‘look out’ to work with the Applicant. At all times, there was a minimum requirement that two workers perform a maintenance task. The role of the one person was to perform the maintenance work while the second person was a ‘spotter’ or support person, depending on the nature of the job being performed.

[35] When the Applicant and his partner arrived at a worksite, they would start by inspecting the switches to see what work needed to be performed. The Respondent stated that most of the work the Applicant and his partner performed was programmed maintenance work. This meant that they had a fair idea of what maintenance work was required before they arrived at the worksite (as the work had already been scoped by the track inspectors who scheduled the maintenance work). However, the Applicant and Barney still had to scope the work themselves to determine the process to follow and also conduct a risk assessment.

[36] The Applicant and his partner would work under a “white flag” when they were performing the initial inspection. After the inspection, but before they commenced the maintenance work, either the Applicant or his partner would contact the Train Controller and ask for permission to take possession of the track. The procedure was explained by the Applicant during cross-examination as follows:

“PN149 What does that mean? Do you have to be particularly careful and cautious in that 3 metres either side if you enter that zone, do you?---You’d go in within 3 metres of track, you should be able to take possession.

PN150 And taking possession of the track means calling it through to the train controller, does it?---That’s correct.

PN151 And saying, “I’m on track area XYZ, however you describe it, and I’m doing some works.” Is that what you do?---Yes, call him up and ask him like do you want to work there, like, you want to take possession of such and such certain area of the railway line and if he’s got nothing coming he can give you possession. If he’s got trains coming he’ll just tell you to standby.

PN152 So standby means that you can’t go in there at the moment or that you can’t do any work?---Standby is standby outside his 3 metres.

PN153 Okay, and taking possession means, if you’re told yes, you can take possession, does that mean that you’re then allowed to work on that area of the track?---That’s correct.

PN154 You’ve given evidence in your statement that quite often you worked with a mate or a buddy like there were two of you together. Is that right?---Yes.

PN155 When you took possession of the track was it the role of one of you to still keep an eye out for trains?---Yes. PN156 Was it always part of the role when you’re doing your track maintenance work, when you’ve taken possession to physically, if I can use that word, physically keep an eye out to see if trains are coming?---Well, one of us would keep an eye out.”

The Applicant’s medical condition (his seizures)

The first seizure

[37] The Applicant had his first seizure in November 2012 while sleeping at his house.

[38] The Respondent states that they first became aware that the Applicant had suffered a previous seizure (the November home seizure) when they received the Applicant’s materials filed in these proceedings. Therefore, it is relying on the Applicant’s statement in this regard.

[39] The Respondent expresses an expectation that the Applicant should have informed his supervisor of such an incident. They submitted that employees are required to report to their supervisor any incident (such as a seizure, or prescription medication they are taking) which may impact their fitness for work or ability to perform their job safely.

The second incident

[40] The Applicant states that he had a seizure while sitting in a truck waiting for a train to clear the track. He was working a shift with another employee, Mr Darren Lutton. They were sitting in the work truck waiting for a train to finish unloading. The Applicant fell asleep in the truck and while he was asleep had a seizure. He was taken to the Nikol Bay Hospital by ambulance after the seizure. The Applicant says he discharged himself from the hospital on the same day as the second seizure.

The medical treatment and reports

[41] After the second seizure, the Applicant was off work on sick leave. He met with his doctor who referred him to see a specialist at Royal Perth Hospital. He attended the Radiology Department at Royal Perth Hospital and also met with a specialist in June 2013.

[42] The Respondent says that they requested the Applicant undertake a Category 1 medical assessment at Kinetic Health which the Applicant did. The Applicant states that on 7 August 2013 the Chief Medical Officer at Kinetic Health found that he was not fit to return to work if “the role involves category 1 rail safety critical work”. The Respondent states that the Chief Medical Officer assessed the Applicant and specifically found that the Applicant was ‘Temporarily Unfit for Duty Subject to Review’ and that he was “unfit for 10 years from date of first seizure”. The Chief Medical Officer assessed the Applicant for the position of ‘Track Worker’ which required a “Category 1 Safety Critical Worker” medical clearance.

[43] The Respondent stated that following receipt of the assessment, they sought further clarification from the Chief Medical Officer as to the exact meaning of the assessment given its serious consequences for the Applicant. The clarification received from the Chief Medical Officer specified that the Applicant was “not fit to return to the role if it involves category 1 rail safety critical work … This determination is valid for 10 years”.

The reason for dismissal

[44] A series of three meetings were held with the Applicant during the week following the medical assessment. At the third meeting on 14 August 2013 the Applicant’s employment was terminated.

[45] The Applicant asserts that the reason for dismissal was that the Applicant was allegedly unable to meet the site requirements to work in and around RTIO’s railway lines. The Respondent denies that the reason for dismissal was linked to ‘site requirements’. The Respondent asserts that at the meeting when the Applicant was dismissed Mr Shane Kelly the Human Resources Superintendent emphasised to the Applicant that the reason for the dismissal was because the Applicant could not satisfy the medical requirements which formed part of the Respondent’s requirements (and under legislation and the National Standard). They assert that the Applicant was made aware that the decision to terminate was largely outside the control of the Respondent. They state that the Respondent was required to comply with its obligations under legislation and the National Standard and could not let the Applicant continue to perform Category 1 Safety Critical Work without a medical clearance.

[46] The Applicant asserts that the required category of medical applied to work within 3-5 metres of RTIO’s railway lines at the time of the dismissal was described in RTIO’s document titled “Safeworking 2013 Training Guide” (the Guide). That document states that work within 3-5 metres requires a Category 2 medical clearance.The Respondent strongly denies this assertion. The Respondent argues that the Guide is not an instrument with any application.

[47] The Guide appears to be an overhead training presentation or handout from a presentation produced by RTIO. The Guide provides for four levels of qualifications and three categories of medical. The Applicant asserts that the Guide supports their contention.

[48] The Applicant gave evidence that he had obtained the Guide from his union representative. He was not familiar with its contents and he could not remember when he was given it and admitted that it could have been after his dismissal. Mr Geoffrey Toy, Program Director for the Respondent, gave evidence that he had not seen the Guide before the proceedings. Mr Kelly gave similar evidence. Mr Toy evidenced that the Guide is not part of the National Standard and does not form part of any contractual material exchanged between RTIO and the Respondent.

[49] In challenging the relevance of the Guide the Respondent argues that RTIO has not made available the document to any relevant senior management person of the Respondent. They argue that the Respondent’s witnesses first sighted the document when they received the Applicant’s materials in this proceeding. The Respondent states that the National Standard applies to those persons engaged in duties as rail safety workers and that the Applicant was one such person.

Consideration

Application of the OHSWA and Rail Safety Act

[50] Regardless of whether the Rail Safety Act or the OSHWA Act or both applies the duties imposed are essentially the same. That is because the duty imposed is a standard eliminating risks and exposure to hazards “as far as reasonably practicable”. That is evident from s.28 of the Rail Safety Act and from s.19 of the OSHWA Act 1.

Application of the National Standard

[51] The Respondent’s submitted that the proper construction of s.73 of the Rail Safety Act and regulation 17 of the Rail Safety Regulations, when read together, is such that the Respondent was, and is, required, so far as is reasonably practicable, to implement a health and safety programme for rail safety workers that is compliant with the National Standard. They suggest that whilst the National Standard is not a legislative instrument that the WA legislature has manifested an intention that, so far as is reasonably practicable, rail operators etc are required to meet the National Standard.

[52] The Respondent referred to a Risk Categorisation Flow-Chart in the National Standard (See Appendix A). The Respondent argues that in following that flow chart for the purposes of applying the National Standard the first question to be answered is whether “Could action or inaction on the part of the worker lead to a serious incident affecting the public or the rail network?”. They submitted that the answer to that question from the evidence must be yes.

[53] The second question is then “Could sudden incapacity or collapse due to ill health lead to a serious incident affecting the public or the rail network?”. The Respondent submitted that the evidence supported a finding of yes to that question.

[54] The Applicant does not appear to dispute most of the analysis of the regulatory regime applicable to the work and the Applicant here. Their argument is that the Applicant has been wrongly regarded as a Category 1 Worker as defined in paragraph 21 above and that the regulatory instruments including the National Standard do not require that the work in question is Category 1 Work.

Approach to the standard to be applied for the purpose of this application

[55] The Applicant’s representative approached this matter on the basis that the Applicant was a Category 2 Worker for the purposes of the National Standard and not a Category 1 Worker. They relied on the Guide they produced and the express terms of the National Standard. The Respondent approached it on the basis that the Applicant was a Category 1 Worker and a different view of their obligations and the express terms of the National Standards.

[56] In my view it is not as straightforward or simple as this Commission deciding which Category was the correct one to apply. The structure and operation of the OSHWA Act and the Rail Safety Act are not aimed at the establishing of minimum standards or even strict standards for most risks. Those Acts establish what used to be widely described as internal responsibility systems. That means that it is the responsibility of the occupiers, and employers as those that created the risks and the employees who work with those risks to eliminate or minimise that risk consistent with an overarching reasonable practicable standard of obligation.

[57] The primary aim of the OSHWA type legislation was to move away from minimum standards of safety and create optimal standards that occupiers and employers would establish themselves. That could be by creating their own standards or by following stricter standards, be they from guidelines or codes or some other instrument.

[58] The definition of practicable in the OSHWA Act illustrates the nature of the obligation. “Practicable” is defined in s.3 of the OSHWA Act as:

“’practicable’ means reasonably practicable having regard, where the context permits, to

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about

(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);”

[59] It can be seen from that definition that the requirement is that occupier, the employer, and employees are required to establish systems of work having regard to the severity of potential harm, state of knowledge about the harm, the risk and the means of removing or reducing the risk or potential harm together with a consideration of the availability, suitability and cost of removing the risk.

[60] On this basis different occupiers or employers might have different approaches at different degrees of cost and different levels of acceptable risk and both meet their obligations.

[61] In my view then the issue here is not so much whether on a literal application of the National Standard the Applicant was a Category 1 Worker or a Category 2 Worker, but rather whether it was reasonable for the Respondent to apply Category 1 obligations for the Applicant.

[62] Thus for the purposes here it is not necessary, nor appropriate, that I find that the employee was either Category 1 or Category 2. What is critical here is whether it was reasonable for the Respondent to class the Applicant as a Category 1 Worker and apply the standards and requirements as a Category 1 Worker.

[63] In particular I consider the approach here should be to examine the Respondent’s views of their obligations. If those views are reasonable, soundly based and not clearly wrong then it is those views that I consider to be the most important for matters of this nature. That question is really then whether the Respondent by its policies adopted a standard as the operating standard which they chose to apply and if it did was it reasonable to adopt that approach.

[64] I also find that the Guide does not assist in establishing what the Respondent’s obligations are. The Guide is a general document the purpose and status of which is unclear and something the Respondent has not either decided to adopt and apply nor been instructed to by the occupier.

Findings and Conclusions

[65] I find that the approach of the Respondent of categorising the Applicant as a Category 1 Worker under the National Standard was an approach that was open to them and reasonable. If the Applicant clearly was not a Category 1 Worker it may have been reasonable to categorise him as Category 2, however the evidence is substantially against the Applicant in that regard. Furthermore, it appears that all employees performing the work of the type the Applicant was performing are all currently categorised in that way and have always been categorised in that way.

[66] Thus whilst I am inclined to the view that the Applicant should have been a Category 1 Worker, I express that as a view in the context of the circumstances here and that it was a soundly based and defensible approach for the Respondent to have done so.

[67] It follows from that the Applicant did not meet the requirements from his medical assessment and therefore could not be engaged in the work he had been performing. A logical consequence is that there was valid reason for the Applicant’s dismissal related to the capacity of the Applicant and I so find. In light of that finding it is not necessary that I consider the issue regarding the Vehicle licensing obligations and the conditions associated with any driving capacity of the Applicant in regards to his employment.

[68] The Applicant was notified of the reason. He was given an opportunity to respond. There was no unreasonable refusal to allow a support person to be present during discussions. The employer had dedicated human resource management specialists and was of a significant size but I do not consider those elements had any effect on the procedures followed.

[69] There are other matters that are relevant including the Applicant’s age and length of service and the significant effect the dismissal has had on his life. Furthermore there has been no issue in respect of the Applicant’s employment history that should have any detrimental effect on the decision to dismiss.

[70] The Respondent considered alternative work arrangements however given the flexibility it required to reassign staff and their duties the same issue would still be present if he worked at the current location. I am also satisfied that the Respondent made reasonable endeavours to reassign the Applicant to other locations and work however unfortunately due to the Applicant’s domestic circumstances that was not feasible.

[71] Having considered all of the issues above I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. The dismissal was therefore not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

T Kucera and C Fogliani of W G McNally for the Applicant.

N Harrington of Counsel for the Respondent.

Hearing details:

2014.

Karratha:

29 May.

Final written submissions:

Applicant, 12 June 2014.

Respondent, 19 June 2014.

APPENDIX A

 1 As defined by s.3 of the OSHWA Act.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR554723>