Prateek Bharadwaj v Transdev WA Pty Ltd T/A Transdev

[2021] FWC 4639

[2021] FWC 4639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prateek Bharadwaj
v
Transdev WA Pty Ltd T/A Transdev
(U2020/16071)

COMMISSIONER WILLIAMS PERTH, 4 AUGUST 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Prateek Bharadwaj (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Transdev WA Pty Ltd T/A Transdev (Transdev or the Respondent).

[2] At the hearing the Applicant gave evidence on his own behalf and for the Respondent evidence was given by Mr Brendan Duroiselle (Mr Duroiselle), the Manager – People and Culture of the Respondent and Mr Robert Parton (Mr Parton), the Respondent’s now Managing Director but previous Head of Business Operations.

Factual findings

[3] The Applicant was first employed by Transdev in March 2011 as a bus driver.

[4] The Applicant was employed full-time.

[5] Since June 2011 he has worked out of Transdev’s City CAT depot located in Perth.

[6] He estimates that at the time of his dismissal there were approximately 72 other employees engaged to drive buses from that depot. Other casual employees also operate the buses.

[7] The Applicant’s evidence was that Transdev applies a procedure to cover known or predictable staff absences which is detailed in its “Voluntary Overtime Allocation Procedure”. 1

[8] The first paragraph of this procedure is titled “Context” and reads as follows,

“The following procedure outlines the process for ensuring transparency, fairness and equity in the allocation of voluntary overtime across driving staff. All available voluntary overtime will be allocated so as to ensure all elements of fatigue management are maintained.”

[9] Under the heading “Long-Term Absence/Open Roster Lines/Known Absence” it is explained that allocation will be in accordance with prescribed guidelines, the third of which reads as follows,

“Duty lines covered prior to first post roster will not contribute towards the voluntary overtime priority list with the exception of shifts assigned as voluntary Star Days.”

[10] The Applicant’s evidence was that on the weekly roster at the depot there was usually a list of employees who did not have permanent work and it was usually the responsibility of those operators to cover the known or longer-term absences of other permanent employees.

[11] His evidence was that he understood that the replacement operators were not paid at a higher hourly rate to provide leave cover. His evidence was that operators who were rostered to work additional hours were still paid at their ordinary hourly rate provided they did not work more than 38 hours per week. 2

[12] In mid-January 2020, the Applicant began to experience pain in his back, neck and left shoulder and also suffered pain in his left hip and lower back.

[13] He first reported this to Transdev on 16 January 2020.

[14] He underwent a number of tests and by the end of March 2020 the pain he was experiencing had continued to worsen.

[15] The pain was made worse when he was driving the bus and sitting for extended periods and so on 31 March 2020, he submitted a claim for workers compensation.

[16] The Applicant has not worked since 31 March 2020.

[17] He was initially certified by his doctor as being fit to perform modified duties but Transdev notified him that they could not provide him with appropriate modified duties, so he remained off work.

[18] On 7 April 2020, Transdev sent a letter to the Applicant which advised that although a decision had not made in respect to his workers compensation claim their initial approach was to deem the condition not work-related, the claim had been referred to their insurer GIO, Transdev did not have suitable alternative duties for him to perform and in the meantime, he could access personal leave entitlements.

[19] The Applicant from that point, through to 5 November 2020, continued to provide Transdev with progress medical certificates.

[20] Transdev’s insurer GIO requested the Applicant attend a medical appointment on 4 June 2020.

[21] On 4 June 2020, at GIO’s request, the Applicant was assessed by an Occupational Physician, Dr Dayoub.

[22] On 25 June 2020, the Applicant received a copy of the assessment report from Dr Dayoub, dated 16 June 2020, that had been sent to GIO.

[23] That report details the Applicant’s symptoms involving neck pain radiating onto his left shoulder and constant stiffness and tightness of his neck. Also left shoulder pain which is radiating onto his left armpit, constant stiffness and tightness of his left shoulder, a dull pain in his left hip usually experienced with squatting or after an extended period of sitting which radiates along the lateral aspect of his left thigh and lumbar back pain on the left side which is aggravated by flexion and extension.

[24] In summary, the doctor’s report concludes that the symptoms he has are related to degenerative conditions affecting his cervical spine, lumbar spine, his left shoulder, and his left hip. The report says there is no evidence to suggest that he sustained an injury in the workplace as a result of his duties as a bus driver. Nor does the doctor find evidence to suggest that the Applicant has sustained an aggravation of a pre-existing condition.

[25] The report states that in the doctor’s opinion he is presently unfit for work as a bus driver. With appropriate medical and allied health treatments the symptoms he had reported were likely to improve. The doctor anticipated a gradual return to work and a potential return to his duties as a bus driver within the following three to four months.

[26] Correspondence from GIO on 25 June 2022 to the Applicant advised him that Transdev did not accept his workers compensation claim because they had decided his injury was not work related.

[27] The Applicant sought further medical advice from an orthopaedic surgeon and a neurosurgeon and decided to have surgery on his left shoulder.

[28] He notified Transdev of this on 15 September 2020.

[29] From this point correspondence went backwards and forwards between the Applicant and the Respondent about further medical information being provided. On 2 October 2020, the Applicant received correspondence from Transdev that advised they still wish to seek information from his treating doctor and asked him to attend a meeting on 13 October 2020 to discuss his employment. 3

[30] On 7 October 2020, the Applicant underwent surgery on his left shoulder.

[31] The Applicant had agreed for Transdev to communicate with his treating general practitioner, Dr Devata.

[32] On 12 October 2020, Dr Devata provided a declaration assessing the Applicant’s capacity for the inherent requirements of the position as a bus driver.

[33] That declaration states the Applicant does not have the capacity currently to perform the inherent requirements of the position. The Applicant is likely to be fit to carry out the inherent requirements of the position from four to six months whilst he recovered from his conditions.

[34] A note is added to the declaration that says the Applicant would be suitable for light duties, stating he is currently unfit as he underwent surgery, and his return-to-work capacity was to be reviewed on 5 November 2020.

[35] On 21 October 2020, the Applicant received a copy of a report by neurosurgeon, Dr Lidell. This report was prepared at the request of his workers compensation lawyers. He instructed his lawyers to send a copy of the medical report to Transdev’s lawyers.

[36] Dr Lidell’s report is dated 20 October 2020 and states that he saw the Applicant at the request of Dr Devata on 13 July 2020. I note however that in a number of places during the report the doctor refers to last seeing the Applicant on 28 July 2020.

[37] Dr Lyndell’s opinion is that quite likely the Applicant sustained an injury to his cervical spine along perhaps, with injuries to his lumbo-sacral spine and his left shoulder, out of and during the course of his employment in or about January 2020.

[38] The doctor identified the Applicant’s main problem as being related to his left shoulder and had suggested to the Applicant that he consider having his shoulder “sorted out” in the first instance.

[39] On 14 October 2020 the Applicant, accompanied by Mr Bydder his representative from the Transport Workers Union (TWU), met with Mr Duroiselle and Mr Adam Sidebottom (Mr Sidebottom) from Transdev.

[40] Mr Duroiselle noted the advice from the Applicant’s doctor that he may not be fully fit to perform his role for between four and six months and expressed the opinion Transdev would not be able to continue to employ him for that period to allow him a full recovery.

[41] The Applicant says a further meeting with the same participants occurred on 19 October 2020 and it was again discussed that Transdev were contemplating terminating his employment. They told him they still wish to have updated medical information concerning his condition.

[42] On 2 November 2020, he received further correspondence from Mr Duroiselle asking him to give an updated declaration of his physical capacity, given that almost a month had lapsed following his surgery. On the same date, Mr Duroiselle sent correspondence to Dr Devata’s surgery asking him to provide this updated declaration.

[43] On 5 November 2020, the Applicant emailed Mr Duroiselle and explained that his doctor had told him that because of the doctor’s busy schedule it was not possible for him to write another declaration with a progress certificate.

[44] On 17 November 2020, the Applicant advised Mr Duroiselle by email that he had been unable to book an appointment with his doctor because he was fully booked. He said his next appointment with his doctor would be on 1 December 2020 and at that appointment he will request he fills out the form sent by Transdev.

[45] The same day, in reply, Transdev pressed its request to the Applicant that he obtain the updated declaration from his doctor immediately.

[46] Transdev advised the Applicant of the importance of this and provided him the opportunity to be assessed by a company nominated doctor to receive an updated declaration of his capacity to perform the inherent requirements of his position. On 17 November 2020, the Applicant advised Transdev he was unwilling to and not comfortable to attend a company nominated doctor.

[47] Next on 19 November 2020, the Respondent sent a show cause letter to the Applicant outlining the history of the matter which also explained the latest medical declaration from his doctor on 12 October 2020. This stated he was unfit for the inherent requirements of his position and would not be fit to return to full duties for up to six months from that review. The letter explained they had audited positions within the business that may provide suitable alternative duties but there are no such positions which could accommodate his skills, qualifications, and physical capacity.

[48] The letter goes on to say that given the extended term of his absence due to a non-work-related injury and the exhaustion of his leave entitlements and the operational impact of his absence Transdev is considering terminating his employment on the basis of him being unable to fulfil the inherent requirements of his position. The letter required him to provide any further information in response for them to consider before a final decision on his employment was made.

[49] The Applicant’s TWU representative, on his behalf, provided a letter responding to the show cause letter.

[50] Ultimately on 26 November 2020, the Applicant was advised that his employment would be terminated on the basis of him being unable to perform the inherent requirements of his position as a bus driver.

[51] Relevantly, the evidence of Mr Duroiselle, Transdev’s Manager - People and Culture, was that the Applicant was absent from work from 1 April 2020 until his termination of employment on 26 November 2020.

[52] On 24 June 2020, Transdev’s workers compensation insurer, GIO, advised they had declined the Applicant’s workers compensation claim. He says there was no dispute that the Applicant had some kind of injury but rather there was doubt about whether those injuries were work related.

[53] The Applicant had utilised all of his leave entitlements by early July 2020. He then submitted an application for leave without pay, which was declined by Transdev.

[54] His evidence was that there were several discussions in 2020 between himself and the Applicant’s line manager, Mr Scott McEvoy (Mr McEvoy) and Mr Sidebottom, around the operational impact of long-term illness related absences on the business, including the Applicant’s absence.

[55] His evidence was they reached a consensus that long-term absences for non-work-related sickness/injuries of employees had a negative impact on cost and efficiency by the coverage of the employee’s line of work, usually at overtime rates, and the lack of efficiency in moving other employees to other depots to cover lines of work for absent employees.

[56] Mr Duroiselle’s evidence was that he advised Mr McEvoy to ensure he regularly contacted the Applicant every few weeks to ascertain his welfare given his length of absence, in order to ascertain his recovery process and timeline and to indicate to him that Transdev required a return to work as soon as possible given the operational impact of his absence. 4

[57] On 15 September 2021, he was involved in a telephone conversation with the Applicant and with Mr McEvoy in which they explained the importance for Transdev to get a complete picture of the Applicant’s medical condition and his likely return to work date.

[58] He decided it would be best to seek an updated medical assessment from the Applicant’s treating doctor after the Applicant had undergone his shoulder surgery on 7 October 2020.

[59] He was aware the Applicant was being reviewed again by his treating doctor on 5 November 2020 and so sent a letter to his treating doctor on 2 November 2020 seeking an updated declaration of the Applicant’s physical capacity.

[60] On 5 November 2020, the Applicant advised him by email that the only information they would be getting from his doctor about his capacity was that sent out in the previous 12 October 2020 medical declaration.

[61] On 10 November 2020, he emailed the Applicant giving him a further week to obtain the updated medical evidence of his physical capacity that had previously been requested.

[62] Meanwhile Transdev conducted an audit of suitable duties that the Applicant may or may not be able to complete with his current capacity. The audit demonstrated that there were no suitable duties available given his then incapacity.

[63] His evidence was that on the last day of the timeframe for the Applicant to provide updated medical evidence, 17 November 2020, he advised Transdev that his treating doctor was too busy but that he would request the information at the next review he had with his doctor on 1 December 2020.

[64] On 17 November 2020, Mr Duroiselle offered the Applicant the option of being seen by a Transdev nominated doctor so they could have updated information about his capacity to recover and return to work. He told the Applicant they could send him to this doctor the next day. The Applicant however declined to attend the Respondent’s nominated doctor.

[65] A meeting was then arranged for 18 November 2020 but, at the Applicant’s request, delayed until the following day 19 November 2020.

[66] The Applicant attended with his union representative from the TWU. The Applicant was advised Transdev were considering terminating his employment on the basis that he lacked the capacity to perform his role and that any return to work was uncertain and still some way off. He was told that Transdev would summarise the meeting and Transdev’s position in writing and give him an opportunity to respond in writing.

[67] The same day, 19 November 2020, a show cause letter was sent to the Applicant. The Applicant’s union representative requested an extension of time to respond which was allowed.

[68] A written response to the show cause letter was provided by the Applicant’s union representative on 26 November 2020.

[69] Late on that day Mr Duroiselle met with Mr McEvoy, Mr Sidebottom, and Mr Parton, Transdev’s Head of Business Operations.

[70] It was agreed that termination of the Applicant’s employment was appropriate because of his long absence, that his return was a long way off and the prospects of a return were uncertain, and his absence continued to have an operational impact on the business.

[71] He also, on 26 November 2020, with Mr Sidebottom met with the Applicant and his union representative and advised them of Transdev’s decision and the termination letter was subsequently provided.

The legislation

[72] Section 387 sets out the matters the Commission must take into account when determining whether an employee’s dismissal was harsh, unjust or unreasonable. This section is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Submissions

The Applicant

[73] For the Applicant, it is submitted that according to a Full Bench of the Commission in Jetstar Airways Pty Limited v Neetson-Lemekes 5 the validity of a dismissal due to alleged incapacity requires a consideration of three interconnected elements:

a. an applicant’s capacity to perform the inherent requirements of his or her role as at the date of dismissal;

b. an Applicant’s capacity to perform the inherent requirements of his or her role at some time in the future; and

c. whether there were reasonable adjustments which could be made to accommodate any current or future incapacity of an applicant.

[74] In this case it is not in dispute that the Applicant did not have capacity to perform the inherent requirements of his role at the time of his dismissal.

[75] It is submitted it would have been reasonable to accommodate the Applicant by allowing him to remain on leave without pay.

[76] Relevant to this is whether the injury was work-related, and if so, whether that fact would have changed the Respondent’s approach and treatment of the Applicant’s case and whether the operational impact of allowing the Applicant to remain on unpaid leave for a period of months was sufficient to warrant his dismissal.

[77] It was submitted that the Respondent is a large employer and is well resourced to manage relatively predictable periods of absence from the workplace.

[78] In circumstances where the Applicant was expected to return to full capacity and given the apparent ability of the Respondent’s business to manage a relatively predictable period of absence, the Applicant maintains the Respondent did not have a valid reason for dismissal.

[79] For the Applicant it is also submitted that the Respondent had closed its mind to the possibility that the Applicant’s condition was in fact work-related and so the Respondent denied the Applicant an adequate opportunity to respond.

[80] Other circumstances of the Applicant are also relevant particularly his current partial medical incapacity, his age of 47 years, his lack of current and relevant skills and his caring responsibility for both his disabled son and his elderly father.

[81] The Applicant submits that the Commission should determine that the dismissal was harsh, unjust and unreasonable

The Respondent

[82] The Respondent submits that the Applicant was dismissed because he lacked the capacity to perform the inherent requirements of his job.

[83] He had been unable to do his job for almost eight months at the time of dismissal.

[84] To the extent that some level of recovery was anticipated that recovery was at least four months into the future and it was not certain that this would have restored the Applicant’s lost physical capacity.

[85] The Respondent had to ascertain the extent of the Applicant’s capacity which relied on expert medical advice and opinion.

[86] The Respondent had to ascertain the extent to which the Applicant was likely to recover and the likely timeframe for recovery.

[87] The Respondent had a valid reason for dismissing the Applicant.

[88] The Respondent submits procedural fairness was followed with a show cause meeting and letter provided to the Applicant to which the Applicant responded. The Respondent then had regard for the Applicant’s written response and what had been said in the meetings and decided to terminate his employment.

[89] The Respondent had a valid reason for dismissing the Applicant and it followed a fair process to gather and assess the relevant medical information.

[90] It is submitted the Commission should find that the Applicant’s dismissal was not unfair.

Consideration

[91] In this case, the medical evidence is clear that at the time the Applicant was dismissed he was not capable of performing the inherent requirements of his position as a bus driver. This issue is not in dispute. 6

[92] The medical advice was that from the date that advice was given, 12 October 2020, the Applicant was likely to be fit to carry out the inherent requirements of the position in four to six months while he recovers from his conditions.

[93] The central issue to be determined is whether there was some reasonable adjustment which could have been made to accommodate the Applicant’s incapacity as at the time of his dismissal and for the likely period of his future incapacity. 7

[94] For the Applicant it is submitted that it would not have been an unreasonable burden on a large employer such as Transdev to make adjustments to accommodate the Applicant’s return to work when he was fully recovered. It is submitted that to accommodate the Applicant all the Respondent had to do was to continue to allow him to remain employed on leave without pay for another four to six months. 8

[95] The evidence of the Applicant supporting this submission that an adjustment to accommodate him would have been reasonable was that the Respondent’s “Voluntary Overtime Allocation Procedure” says that for “Long-Term Absence/Open Roster Lines/Known Absence” one of the guidelines is that,

“Duty lines covered prior to first post roster will not contribute towards the voluntary overtime priority list with the exception of shifts assigned as voluntary Star Days.”

[96] His evidence was also that he understood replacement operators, who were usually responsible for covering long-term absences of other employees, were not paid at a higher hourly rate and operators who were rostered to work additional hours were still paid ordinary hourly rates unless they worked more than 38 hours per week.

[97] This evidence assumedly is seeking to show that Transdev had and would not have to pay anyone at overtime rates because of his past and ongoing absence.

[98] The submissions on behalf of the Applicant in my view oversimplify the actual outcome of the Respondent’s policy. 9 Whether the policy does in practice avoid overtime payments will depend on a number of variables at any particular point in time such as the number of staff absent and what other factors were causing extra hours to be worked by other drivers, some of which are not within Transdev’s control.

[99] The Applicant’s evidence is generalised and not so compelling as to persuade the Commission that the submission, that there would be no additional cost to the Respondent whilst the Applicant remained absent from work, is correct. 10

[100] Further, contradicting the Applicant’s evidence is the evidence of Mr Duroiselle. He says there had been several discussions between himself and other managers about the operational impact of long-term employee absences, including that of the Applicant. His evidence was that long-term absences had a negative impact on cost and efficiency, usually involved paying overtime rates and moving employees to other depots to cover the work of absent employees. 11

[101] This evidence particularly explains what the consequences for Transdev were at the relevant time of accommodating the Applicant’s absence.

[102] This evidence was not challenged in cross-examination. I also note the Commission’s hearing directions allowed the Applicant to file further witness evidence in response to the Respondent’s witness statements and submissions, however, the Applicant did not file anything in reply.

[103] Considering all the evidence, I accept Mr Duroiselle’s evidence that accommodating the Applicant’s absence had negatively impacted the cost and efficiency of Transdev’s operations and continuing to accommodate his absence into the future would continue to have these consequences.

[104] I have also accepted the evidence that there were no other positions which the Applicant could have been employed in.

[105] I am therefore satisfied that at the time the Applicant was dismissed he did not have the capacity to perform the inherent requirements of his position. There were no other positions to which he could have been redeployed.

[106] On 12 October 2020, the Applicant’s doctor advised that he did not have the capacity then to perform the inherent requirements of his position and it would be four to six months before he was likely to have recovered from his conditions. The Respondent asked the Applicant to obtain an updated medical declaration shortly prior to his dismissal but he had not done so.

[107] The medical advice known at the time of dismissal on 26 November 2020 was that the Applicant would not likely be fit to carry out the inherent requirements of his position before 12 February 2021 or possibly before 12 April 2021.

[108] In these circumstances, I am not satisfied it was reasonable for the Respondent to continue to accommodate the Applicant’s incapacity by allowing him to remain employed on leave without pay for this further period.

[109] The Applicant’s inability to perform the inherent requirements of his position was a valid reason for dismissal.

[110] The Applicant was advised at a meeting and through a show cause letter that the Respondent was considering dismissing him from his employment due to his incapacity to perform the inherent requirements of his position.

[111] The Applicant was provided the opportunity to respond to the reasons the Respondent was considering dismissing him before the final decision was made. The Applicant, through his union representative, provided a written response to the employer show cause letter arguing his case.

[112] There was no refusal by the Respondent to allow the Applicant to have a support person attend meetings regarding his possible dismissal.

[113] The reason for dismissal was not to do with the Applicant’s performance so warnings were not relevant in this instance.

[114] The Respondent is a large employer and does have specialist human resources management specialists and the procedure followed properly reflected this.

[115] The Applicant had been employed since 2011. The Applicant is 47 years of age. The Applicant had not been able to work since the beginning of April 2020. The Applicant has caring responsibilities for his son and father.

[116] Considering all of these matters the dismissal of the Applicant was not harsh, unjust or unreasonable.

[117] The Applicant has not been unfairly dismissed and an Order [PR732324] dismissing this application will now be issued.

Appearances:

D Stojanoski of Slater and Gordon Lawyers for the Applicant.
S Heathcote of APX Law for the Respondent.

Hearing details:

2021.
Perth:
May 26.

Printed by authority of the Commonwealth Government Printer

<PR732323>

 1   Exhibit A1, Attachment PB-1.

 2   Ibid., at paragraphs 40 and 41.

 3   Ibid., at Attachment PB-13.

 4   Exhibit R1 at paragraphs 21 to 24.

 5   [2013] FWCFB 9075 at [53].

 6   Applicant’s outline of submissions dated 8 March 2021 at paragraph 8.

 7   See Jetstar Airways Pty Limited v Neetson-Lemekes [2013] FWCFB 9075 at [53].

 8   Transcript at PN198 and PN221.

 9   Ibid., at PN234.

 10   Ibid., at PN232 to PN238.

 11   Exhibit R1 at paragraphs 22 and 23.