Pushpinder Gautam v Costco Wholesale Australia Pty Ltd

[2020] FWC 6433

[2020] FWC 6433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pushpinder Gautam
v
Costco Wholesale Australia Pty Ltd
(U2020/7728)

COMMISSIONER YILMAZ MELBOURNE, 30 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 4 June 2020, Mr Pushpinder Gautam made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Costco Wholesale Australia Pty Ltd (Costco). Mr Gautam was employed as a tyre fitter at the Ringwood warehouse and seeks reinstatement with continuity and compensation. 1

[2] It is not in dispute that Mr Gautam’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). It is not in dispute that Mr Gautam’s employment was terminated on 18 May 2020 for the reason that Costco believed that he could not perform the inherent requirements of the job. There were no jurisdictional matters raised.

[3] At the hearing, Costco called two witnesses:

•  Mr Ben Rimington, Ringwood Warehouse Manager; and

•  Dr Majid Rahgozar, an independent specialist in occupational and environmental medicine.

[4] Mr Gautam tendered statements of Messrs Jashandeep Singh, Dominic Igini, Madhur Matta and Danish Sharma. At the hearing, the Respondent raised concerns that witness statements were not duly filed for Messrs Jashandeep Singh, Dominic Igini, Madhur Matta, and therefore the only individuals who should be permitted to give witness evidence were Mr Gautam and Danish Sharma. In response, the Applicant clarified that the statements of Jashandeep Singh, Dominic Igini, Madhur Matta were filed within his submissions as affidavits. Upon perusing the materials filed, the Respondent acknowledged that the affidavits had been filed in the proceeding and confirmed that the Respondent did not seek to cross examine these witnesses.

[5] The Respondent did however request to cross-examine Dr Phillip Hammond, but he was not called by the Applicant to give evidence.

[6] The Respondent raised evidentiary objections concerning the materials filed by Mr Gautam relating to his workers’ compensation claim, including the affidavit filed by Madhur Matta. The Respondent objected on the basis of relevance or pursuant to s.588 of the Workplace Injury and Rehabilitation Act 2013 (Vic), which states:

“Unauthorised use of information

A person must not use information obtained under or pursuant to this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 except as authorised by or in respect of a matter or for a purpose arising under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958.”

[7] The objections pursuant to Subdivision 2 of the Workplace Injury and Rehabilitation Act 2013 (Vic) (WIR Act), concern offences under the Act. The objections concerning filed material in contravention of s.588 of the WIR Act were satisfied by the removal of the documents. Mr Gautam’s case was not disadvantaged by the removal of the documents, as alternative material relating to Mr Gautam’s capacity to perform his position at the time of the decision to terminate his employment was available.

[8] The Respondent was granted leave to be legally represented.

Background

[9] Mr Gautam commenced employment on 17 July 2016 in the position of full-time tyre fitter at the Tyre Centre of the Ringwood warehouse.

[10] Costco submit that in November 2017, Mr Gautam injured his elbow while working, and reaggravated the elbow again in August 2019.

[11] After complaining of pain, Mr Gautam was placed on alternative duties in September 2019 in a member services role. Costco submit that in the 2.5 years of employment, Mr Gautam “was largely unable to perform the substantial duties of his tyre fitter position, due to an elbow injury.” 2

[12] On 16 January 2020, Costco received a certificate which stated that Mr Gautam could return to his pre-injury role from 20 January 2020. Costco informed Mr Gautam that it required a current and detailed medical certificate to satisfy itself of its obligations under the Occupational Health and Safety Act 2004 (Vic).

[13] Mr Gautam attended a series of medical appointments and this culminated in Costco providing to Mr Gautam a show cause letter on 30 April 2020. Further correspondence and an updated medical report resulted in Mr Gautam’s termination of employment on 18 May 2020.

[14] Mr Gautam submits that based on the medical advice, that Costco could have made reasonable adjustments to accommodate his employment in a suitable alternative role. He submits that there was no valid reason and the dismissal was unfair.

Submissions of the Applicant

[15] Mr Gautam gave evidence that he first worked with Costco from June 2015 until end of May 2016 when he lost his working rights. He was subsequently re-employed on 14 July 2016 after providing to Costco a copy of his working visa rights. Mr Gautam gave conflicting submissions concerning this incident, but I prefer his own email evidence to his manager where he provides a copy of his working rights visa and clarifies the conditions attached to it. 3

[16] Mr Gautam made assertions that in the course of work he was required to perform more duties than others in the same role and this put pressure on his arms. 4 This assertion was contested as were the statements provided by Mr Gautam’s witnesses.

[17] Mr Gautam submits that Costco breached its health and safety obligations, and when it terminated his employment unjustly, it relied on reasons of compliance with health and safety laws.

[18] Mr Gautam relies on his own treating general practitioner’s prognosis to support his submission that he was capable of returning to his role, and whether he could perform certain duties during the period that alternative duties were performed.

[19] Mr Gautam tendered a medical certificate from Dr Hammond dated 2 September 2020 which states: “In my opinion Mr Pushpinder Gautam is able to return to his normal job as tyre fitter” 5.

[20] Mr Gautam presented a witness statement of Mr Danish Sharma which stated that he had observed Mr Gautam working at the Costco entrance door handing out brochures and “supplying” trolleys to customers. Much of the statement is hearsay and contains sympathetic statements towards the Applicant. Mr Sharma was not called to give evidence. The statement is unhelpful in respect to the matters in dispute and therefore most of the statement in its context is inadmissible or carries little weight.

[21] The most succinct submissions are those contained in the Application which was prepared by the Shop, Distributive and Allied Employees’ Association (the SDA). Regrettably, the SDA did not represent Mr Gautam at hearing.

[22] The submissions state that Mr Gautam’s employment was terminated for reasons of his incapacity to safely fulfil the genuine, reasonable and inherent requirements of the role of tyre fitter. This reason was reflected in the letter of termination of employment. 6

[23] Following the injury to Mr Gautam’s elbow in November 2017, his workers’ compensation claim was accepted. A further workers’ compensation claim was filed in August 2019 due to re-aggravation but was rejected by the WorkCover agent. In December 2019, a conciliation was held where a genuine dispute certificate was issued. 7

[24] A workers’ compensation medical certificate from Mr Gautam’s medical practitioner cleared him to resume duties on 15 January 2020 and his manager initially agreed to ease Mr Gautam back to work with alternative duties. However, Costco directed him to attend an independent medical examination to ascertain his capacity to resume duties instead of easing him back to work.

[25] Following the request to attend an independent medical examination on 28 January 2020, the medical appointment was held on 23 March 2020. Dr Rahgozar, a consultant occupational physician prepared a report which determined that Mr Gautam was not fit to resume unrestricted pre-injury duties based on the information he had because there was a risk of future injury. Dr Rahgozar recommended an MRI scan to finalise his assessment. 8

[26] Mr Gautam challenged the report of Dr Rahgozar and challenged the show cause letter dated 30 April 2020. On 5 May 2020 Mr Gautam was invited to present suggestions for adjustments to the role of tyre fitter. Following further meetings and consideration of suggestions for adjustments, Mr Gautam’s employment was terminated effective 18 May 2020. 9

[27] The SDA submitted in the application that the termination was unfair because Mr Gautam’s medical practitioner, Dr Hammond, contradicted the report of Dr Rahgozar, and further stated that the diagnosis was not a definitive prognosis. It also submitted that Mr Gautam could have been accommodated by rotating fitting/cleaning duties to an administrative role, and that with rotation of duties he could fulfil the inherent requirements of the tyre fitting role. The application further submits that Costco’s decision to dismiss Mr Gautam was harsh as the Respondent had previously redeployed other injured employees into member services. 10

[28] The relevant extracts from the letter of termination of employment are:

“Your employment with Costco

I refer to our recent correspondence with you in relation to your capacity for work.

On 30 April 2020, Costco informed you that, based on the medical evidence provided to it, it was Costco's preliminary view that your employment with the organisation should cease. The purpose of this letter is to inform you of Costco's final decision in relation to your employment.

For the reasons set out below, a final decision has been made to terminate your employment on the basis of the information available to Costco that you cannot safely fulfil the genuine, reasonable and inherent requirements of your role.

………

Decision regarding your employment

Following on from the above, Costco has now carefully considered all relevant information in relation to your medical condition, your responses and your position and has made a final decision to terminate your employment because you are unable to safely perform the genuine, reasonable and inherent requirements of your position.” 11

Submissions of the Respondent

[29] Costco submit that in November 2017, Mr Gautam injured his left elbow while working. He ceased working from 5 November 2017 till 1 February 2018 when he returned on modified duties. The duties included clerical work, organising documents and answering the telephone. It was at this time that Mr Gautam’s attendance was erratic with attendance for 41 of the 75 rostered days.

[30] On 28 May 2018, Mr Gautam advised Costco that he was unfit for all duties and ceased work until 26 October 2018. A workers’ compensation claim was filed on 12 June 2018 for the elbow and a psychological injury; the claim was rejected by the insurer.

[31] On return to work on 5 November 2018, Mr Gautam was suspended while a complaint against him was investigated. He returned to the position of tyre fitter on 21 November 2018.

[32] Mr Gautam reported 3 injuries (4 December 2018- right forearm, 4 January 2019- back and 4 April 2019- left forearm). Following these reports, even though he refused to fill in incident reports, Costco placed him on restricted duties performing mainly clerical tasks.

[33] On 12 April 2019, Mr Gautam was cleared to return to duties.

[34] On 30 August 2019 Mr Gautam provided an incident report that repetitive tasks in the fitting bay strained his right arm. Despite having no certificate of capacity, Mr Rimington placed him in the member services area to check customer cards, count and greet customers, Mr Gautam complained that he could not stand in one position.

[35] On the following day Mr Gautam provided a certificate of capacity that stated he could stand and walk with no restrictions and the use of his left hand had limitations. Alternative duties were arranged subject to a return to work plan.

[36] On 25 September 2019 Mr Gautam provided a medical certificate which stated he was unfit for all duties.

[37] A workers’ compensation claim was rejected by the insurer on 28 October 2019. Mr Gautam was continually paid until 28 November 2019 for being absent as he did not have a clearance to return to work.

[38] The period of 29 November 2019 until 19 January Mr Gautam was on unpaid leave. 12

[39] On 16 January 2020, Costco received a certificate which stated that Mr Gautam could return to his pre-injury role from 20 January 2020. Costco informed Mr Gautam that it required a current and detailed medical certificate to satisfy itself of its obligations under the Occupational Health and Safety Act 2004 (Vic).

[40] Costco submit that Mr Gautam’s dismissal followed a careful and thorough process. Those steps included:

(a) On 28 January 2020, Mr Gautam was notified of a requirement to attend upon Dr Rahgozar for a medical examination at Costco’s cost; 13

(b) On 23 March 2020, Mr Gautam attended Dr Rahgozar’s rooms and was examined; 14

(c) On 24 March 2020, Dr Rahgozar provided a medical report to Costco and requested further scans of Mr Gautam’s elbows; 15

(d) On 2 April 2020, Costco arranged for Mr Gautam to obtain those scans at its own cost; 16

(e) On 17 April 2020, Costco sought further information from Dr Rahgozar after the scans had been completed; 17

(f) On 24 April 2020, Dr Rahgozar provided an updated opinion about Mr Gautam’s capacity; 18

(g) On 30 April 2020, Costco advised Mr Gautam that in its (and Dr Rahgozar’s) view, he was unable to perform the full, inherent requirements of his role as Tyre Fitter. Costco sought Mr Gautam’s views as to why his employment should not cease; 19

(h) On 2 May 2020, Mr Gautam responded, and Costco considered his responses; 20

(i) On 4 May 2020, Mr Gautam and Mr Rimington met so that Costco could obtain more information from Mr Gautam prior to coming to a final view; 21

(j) On 5 May 2020 and on the basis of Mr Gautam’s responses, Costco wrote to Mr Gautam to ask him to outline suggested reasonable adjustments to his position of Tyre Fitter for Costco to consider; 22

(k) Costco also asked the same question of Dr Rahgozar; 23

(l) On 6 and 8 May 2020, both Mr Gautam and Dr Rahgozar responded to Costco’s request; 24

(m) On 18 May 2020 and after considering all of Mr Gautam’s responses, Costco decided to dismiss. 25

[41] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[42] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.

[43] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 26

Consideration

Was there a valid reason for the dismissal related to capacity or conduct?

[44] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.” 27 Further it is the role of the Commission to consider the employer’s reasoning to assess whether that reasoning is valid.28

[45] I find that Costco’s reason for termination of employment is sound and defensible. The reason for the termination of employment relates to Mr Gautam’s capacity to perform the inherent requirements of the job of tyre fitter and I find the reason is valid. Further, Costco in its process relied on independent medical advice to ascertain Mr Gautam’s capacity to perform the inherent requirements of the role and whether reasonable adjustments could be made.

[46] The injuries sustained by Mr Gautam to his arms date back to 2017, prior to his WorkCover claims. In evidence, Mr Gautam tendered emails of 26 October 2017 and 3 November 2017 where he reports to his manager at the time, that he had a sore right arm which was like what he had previously experienced in his left. The emails note Mr Gautam’s limitations to perform his tasks because of soreness in both arms. In the email of 3 November 2017, he describes the injury as tennis elbow and based on his doctor’s advice, he intends to rest up for 2-4 weeks and continue his physio. The same email states that his left arm “feels a lot better except the upper part” He further states “work cover is never my pathway and never needed it in the past 10 years” 29. It is following this email, that Costco responds with statements to the effect that he is to provide his medical certificates, is to complete an incident report and that he will need to complete two WorkCover claims, one for each arm. It appears that Costco had paid for physio treatments but made it clear that further treatment is to be managed through WorkCover.30

[47] The approach by Costco to insist on the filing of an incident report and lodging of WorkCover claims is understandable given Mr Gautam was a young man still in his 20s and only worked for his employer since 2015. It is reasonable that the employer found concern with the pattern of recurring injury requiring excessive time off work.

[48] Mr Gautam submits he could perform his job of tyre fitter and that Costco did not have a definitive prognosis to substantiate termination of his employment. 31

[49] The independent medical evidence of Dr Rahgozar concerning Mr Gautam’s capacity to perform the inherent requirements of the job was not in Mr Gautam’s favour. This medical assessment was undertaken at the time of Mr Gautam’s employment and immediately prior to his termination of employment. In that sense Costco relied on contemporary advice and evidence before the decision to terminate his employment. There is no reason to question the credibility of Dr Rahgozar’s evidence. While Mr Gautam challenged Dr Rahgozar’s credentials and his findings, these challenges did not hold weight. Further, while I accept the medical certificate of Dr Hammond, the certificate was unfortunately brief, leaving me no option but to rely on the written and oral evidence of Dr Rahgozar in its entirety.

[50] Mr Gautam took excessive periods off work due to his elbow injuries both on sick leave and on workers compensation. Mr Rimington gave evidence that while performing “light duties” Mr Gautam complained and attended work for only 41 of the 75 days while alternative duties were found for him in the period from February 2019.

[51] The evidence of Mr Rimington concerning his attendance record was not challenged by Mr Gautam. Further Dr Rahgozar’s evidence was credible and persuasive regarding the physical risks for Mr Gautam to perform the duties of a tyre fitter both at the time of assessment and in consideration of the likelihood of ongoing risk of injury.

[52] Mr Gautam contends that Costco could have or should have modified his duties to accommodate his injuries. It is not relevant to consider whether Mr Gautam could perform an alternative role, the assessment in such matters is against his role. Despite this, Mr Gautam gave evidence that repetitive tasks even while performing alternative and less physical tasks caused him pain. Consequently, it is reasonable that Costco had conducted a thorough assessment of Mr Gautam’s physical constraints. I also accept the evidence that Costco also considered whether reasonable adjustments could be accommodated and of further relevance was the steps that were taken to provide Mr Gautam with alternative duties which he had expressed difficulty with.

[53] I am satisfied that Costco had a sound, defensible and well-founded reason to dismiss Mr Gautam. I find this consideration does not weigh in Mr Gautam’s favour.

Was Mr Gautam notified of the valid reason?

[54] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 32 and in explicit33 and plain and clear terms.34

[55] I am satisfied that Mr Gautam was notified of the reason for his dismissal and further given an opportunity to respond including the opportunity to provide further information that may dissuade Costco from terminating his employment. I have already detailed the thorough process adopted by Costco. While understandably difficult for Mr Gautam to accept, the evidence was persuasive and could not be ignored.

[56] Dr Rahgozar’s reports following the personal examination of Mr Gautam, assessment of MRI scans and following consideration of the job dictionary for tyre fitter, it was opined that:

“While these changes might be unexpected in an asymptomatic man in his 40s and 50s, however, for a 30-year-old, with a history of recurrent episodes of elbow pain, physically demanding work as a tyre fitter and leisure activities of body building, are regarded significant and predictive of higher risk for future injuries, pain and disability.

Therefore, in my opinion in the long-term he is not fit for full inherent requirements of his role and should avoid activities that require forceful grabbing and grasping while repetitively flexing, extending wrist and elbows permanently e.g.

Tyre fitting,

Recycling tyres

Mopping, brooming,

Pushing heavy wheelie bins or trolleys.”

[57] The show cause letter was provided to Mr Gautam on 30 April 2020. This letter detailed the basis for Costco’s preliminary view and its reliance on material in considering whether to terminate his employment. The letter also invited him to a meeting on 4 May 2020 with the option of providing any response why his employment should not be terminated by 3 May 2020. Following the lengthy process, ultimately while he disagreed with the decision Mr Gautam was informed and understood the reasons for the termination, however, difficult the impact of the decision on him.

Was he given an opportunity to respond to any valid reason related to his capacity or conduct?

[58] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 35

[59] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 36 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.37

[60] Costco engaged with Mr Gautam before its decision to terminate his employment. The process was lengthy and considerate of independent medical evidence, mindful of Mr Gautam’s past physical limitations and experiences and encouraging of Mr Gautam to suggest alternative outcomes.

[61] In consideration of the evidence before me I find that the decision was not made before the opportunity for Mr Gautam to respond fairly and in a common-sense way. I find that Costco provided a fair process and Mr Gautam engaged in that process.

Did Costco unreasonably refuse to allow the Applicant to have a support person present?

[62] Mr Gautam was not denied the opportunity to bring along a support person. The evidence shows and it was not contested that Costco offered Mr Gautam the opportunity for have a support person throughout the process. I do not repeat the evidence here, other than to say I am satisfied with the evidence of both the Respondent and Applicant in this regard.

Was he warned about unsatisfactory performance before the dismissal?

[63] Mr Gautam was not dismissed for performance, but rather due to the assessment of his capacity to perform the inherent requirements of his job. Mr Gautam had a long history of recurring injury to his arms and ultimately Costco had an obligation to take steps to minimize further risk to Mr Gautam. It relied on professional medical evidence to ascertain whether continuation in his job would result in ongoing risk, and if so, whether there was any prospect of adjustments to eliminate further risk of injury.

[64] As already noted, Mr Gautam was involved in the lengthy and detailed process before the decision was made.

[65] The last medical report from Dr Rahgozar goes to the issue whether adjustments could be made to eliminate risk and his response to specific questions from Costco. Relevantly, his report states:

“Therefore, in my opinion in the long-term he is not fit for full inherent requirements of his role and should avoid activities that require forceful grabbing and grasping while repetitively flexing, extending wrist and elbows permanently e.g.

tyre fitting, recycling tyres mopping, brooming,

pushing heavy wheelie bins or trolleys.

I have now reviewed the position description (05/2013, Job dictionary June 2013 and task analysis (2015) for the role of tyre fitter.

In particular, I notice requirement of occasional to frequent lifting and carrying up to 25kg up to chest level and occasional at or above shoulder level (for usual duties and also during non-essential function).

I also notice grasping frequently with less than 1kg force and occasionally for >lkg force.

I also notice in the job dictionary exclusion criteria for upper limb conditions as being a need for forceful dynamic use of arms, overhead reach

Review of these documents do not change my overall assessment of Mr Gautam's condition and fitness for work.

Here I answer your specific questions:

A. Given it is your opinion that Mr Gautam is not fit for the full inherent requirements of his role, please advise of any adjustments which Costco could make that, in your professional opinion, may assist Mr Gautam in performing his role.

Perhaps a rotation from tyre fitting/ cleaning duties to administrative roles e.g. 1-2 hour in each would reduce the risk of further injury but this must be on a long-term basis, in fact permanent.

My overall assessment is that in longer term Mr Gautam should change the direction of his employment to a less physically demanding role in order to prevent future injuries and in that sense no reasonable adjustment could be made to the inherent requirements of the role to enable Mr Gautam to safely return to his role.” 38

[66] Mr Gautam’s response to what adjustments could be made was that he could perform his role, which was evidently inconsistent with the facts. The last report from Rahgozar dated 8 May 2020 was also relied on by Costco and it was reasonable to do so. The requirement to consider reasonable adjustments was considered.

[67] Further Mr Gautam suggested a clerical role could be created. However, there is no obligation on Costco to create a new role to satisfy Mr Gautam’s views of what he could do. He was clearly in denial over his limitations and Costco had no obligation having considered whether there were reasonable adjustments that could be accommodated,

[68] It is unfortunate that Mr Gautam, despite his age has experienced such injuries to both of his arms, and which as time went on were aggravated when he returned to work. However, it is undeniable that continuation of the job of tyre fitting was not medically advisable. While not agreeable to Mr Gautam, there was no option for Costco other than eliminate the risk for further injury.

To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?

[69] Costco is not a small employer and has access to resources which is indicative of the process adopted. The size of the enterprise and its resourcing enhanced the process afforded to Mr Gautam.

What other matters are relevant?

[70] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[71] The position of tyre fitter is not an unusual occupation in the automotive industry. The position involves manual tasks including lifting, pulling, pushing and carrying, in addition to dealing with customers, cleaning, stocking and administrative duties. While there are a range of duties associated with the role, there is repetition and the environment can be fast paced due to its retail focus. I have accepted the description of the work by Mr Rimington and I note the job analysis and job dictionary tendered in evidence, 39 both of which incorporate the physical aspects of the role. Having considered this evidence, I see nothing unusual that may explain the serious nature of Mr Gautam’s injuries given his age and length of employment in the role. Consequently, one can only rely on the medical assessment of Mr Gautam to determine whether he is subject to ongoing risk should he return to the role. This is what Costco rightly did.

[72] Further I observe the contradictory evidence of Mr Gautam when he submits he is capable of performing the inherent requirements of the job, yet also affirmed the physical impact that repetitive tasks have on his arms. One cannot ignore the attendance record to appreciate that ongoing work at Costco in the position of tyre fitter or in any other repetitive job function will be a safety risk to him. This was confirmed by Dr Rahgozar, a credible witness with credible qualifications to make his assessment.

[73] Mr Gautam raised other issues, which were either irrelevant or of no weight. Materials relating to the August workers compensation claim which was rejected by the insurer, were also rejected for these proceedings on the basis of relevance and in consideration of the threat of prosecution under the WIR Act. His reliance on Dr Hammond’s medical certificate of 2 September 2020, was issued well after the dismissal and cannot hold weight in the consideration whether Mr Gautam was certified fit to perform his job at the time of the dismissal in May 2020. Further. Dr Hammond did not present as a witness in support of the medical certificate which was brief.

[74] I have also noted that Mr Gautam was not without pay during his extensive absences when not on workers compensation, and obviously received wages once he exceeded his sick leave entitlement. I also note that Mr Gautam was paid three weeks’ notice at termination of employment. Mr Gautam was not treated unfairly in the circumstances.

Harsh, unjust or unreasonable?

[75] Costco dismissed Mr Gautam due to his incapacity to perform the inherent requirements of the job. An extensive procedure was adopted to ascertain Mr Gautam’s risk of injury and in my opinion the process met the standards of procedural fairness.

[76] Costco relied on the principles set out in Boag and Son Brewing Pty Ltd v Button, 40 CSL Ltd v Papaioannou41 and Hyde v Serco Australia42 as to the matters to be considered concerning inherent requirements, conflict between medical opinions and the validity of facts discovered after the dismissal. I respectfully adopt those principles.

[77] I have considered each matter specified in section 387 and in reaching my determination I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.

[78] I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.

Conclusion

[79] Having considered all the relevant factors, I do not consider the termination unfair.

[80] As the dismissal was not unfair, I am not required to consider issues of remedy.

[81] For these reasons, I will issue an order separate to this decision, that the application be dismissed.

COMMISSIONER

Appearances:

Mr P. Gautam for himself

Mr L. Howard for the Respondent

Hearing details:

2020
Melbourne (via Microsoft Teams)
17 September

Printed by authority of the Commonwealth Government Printer

<PR725008>

 1   Applicant’s Form F2 at Q2.

 2   Respondent’s outline of submissions at [4] and Exhibit R1- witness statement of Mr B Rimington at [12] – [43].

 3   Annexure B to AOOS email dated 7 July 2016.

 4   Exhibit A1 - Witness Statement of P Gautam at [2] – [4].

 5   Annexure A3 of AOOS.

 6   Attachment to Applicant’s form F2 and Applicant’s outline of submissions.

 7   Applicant’s form F2 at Q3.2.

 8   Ibid.

 9   Ibid.

 10   Ibid.

 11   Letter of termination of employment dated 18 May 2020 attached to the Form F2 application.

 12   Exhibit R1 at [12] to [38] and uncontested witness evidence of Mr Rimington.

 13   Letter dated 28 January 2020, tab Respondents outline of submissions.

 14   Medical report dated 24 March 2020, tab 12 Respondents outline of submissions.

 15   Ibid.

 16   Letter dated 2 April 2020, tab 13 Respondents outline of submissions.

 17   Letter to Dr Rahgozar dated 17 April 2020, tab 14 Respondents outline of submissions.

 18   Medical report dated 24 April 2020, tab 15 Respondents outline of submissions.

 19   Letter to Mr Gautam dated 30 April 2020, tab 16 Respondents outline of submissions.

 20   Email from Mr Gautam dated 2 May 2020, tab 17 Respondents outline of submissions and Exhibit R1 at [55]-[56].

 21   Exhibit R1 at [57] and file note tab 18 of Respondents outline of submissions.

 22   Letter to Mr Gautam dated 5 May 2020, tab 19 of Respondents outline of submissions.

 23   Letter to Dr Rahgozar dated 5 May 2020, tab 20 Respondents outline of submissions.

 24   Email from Mr Gautam dated 6 May 2020, tab 21 Respondents outline of submissions and Letter from Dr Rahgozar dated 8 May 2020, tab 22 Respondents outline of submissions.

 25   Exhibit R1 at [64] - [65] and Notice of Termination letter dated 18 May 2020 at tab 23 Respondents outline of submissions.

 26   Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 27   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 28   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 29   Annexure E to Applicant’s outline of submissions.

 30   Email from Costco of 4 November 2017 - Annexure E to Applicants outline of submissions.

 31   Exhibit A1 and witness evidence of Mr Gautam.

 32   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 33   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 34   Ibid.

 35   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 36   RMIT v Asher (2010) 194 IR 1, 14-15.

 37   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 38   Medical report dated 8 May 2020, tab 22 of Respondents outline of submissions.

 39   Exhibit R1, witness evidence of Mr Rimington, attachment 10 and 11 to the Respondents outline of submissions.

 40 J Boag and Son Brewing Pty Ltd v Button [2010] 195 IR 292.

 41 CSL Ltd v Papaioannou [2018] 273 IR 168.

 42   Hyde v Serco Australia Ltd [2018] FWCFB 3989.