Ranui Parahi v Parmalat Australia Ltd

[2015] FWC 7191

[2015] FWC 7191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ranui Parahi
v
Parmalat Australia Ltd
(U2015/8466)

COMMISSIONER MCKENNA SYDNEY, 5 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ranui Parahi (“the applicant”) has lodged an application, made pursuant to s.394 of the Fair Work Act 2009, seeking an unfair dismissal remedy concerning his dismissal by Parmalat Australia Ltd (“the respondent”).

[2] As to preliminary matters, the application was made within time; the applicant was a person protected from unfair dismissal; as the respondent is not a small business employer, consideration of the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve termination of employment for reasons of redundancy. The matter arising for determination is, thereby, whether the dismissal was harsh, unjust or unreasonable. With some exceptions, including exceptions concerning the characterisation of certain matters, the factual background to the circumstances surrounding the dismissal was not in contest.

[3] The applicant, who was formerly employed as a Cool Room Operator at one of the respondent’s distribution centres in suburban Sydney, commenced employment with the respondent as a transferring employee in 2009. Prior to that transfer, the applicant had worked at the particular distribution centre from 2000 for, respectively, a predecessor company and under labour hire arrangements. There was no evidence of any issues concerning the applicant’s capacity or performance, other than the particular circumstances related to the dismissal itself involving an alleged incapacity to perform the inherent requirements of his role.

[4] The circumstances that led to the applicant’s dismissal on 26 May 2015, following an extended period during which he was stood-down by the respondent, relevantly commenced, for present purposes, in February 2014. The applicant, among other employees of the respondent, completed a manual handling hazard and risk assessment which was conducted by an external occupational therapist. The applicant was considered to have a medium-to-high risk assessment, raising resulting concern that he may not be able to safely and competently perform his role. Consequent upon that initial assessment in February 2014, a range of developments unfolded in the time that followed to the eventual date of dismissal on 26 May 2015.

[5] The evidence indicated, that in the time following February 2014, the applicant attended various appointments and assessments. Principal among the issues concerning the applicant’s fitness were his weight and associated medical-type issues. As at the date of an assessment instigated by the respondent and conducted in May 2014 by a specialist occupational physician, the applicant’s weight was 165kg. I do not propose to detail in this decision the applicant’s medical conditions, albeit I will note that the applicant’s weight objectively precluded him from operating the forklifts due to the forklifts’ maximum weight safety ratings (such as for the maximum weight on the forklift seats).

[6] On a consideration of matters before then before it, the respondent determined not to allow the applicant to continue working. The applicant was stood-down, notwithstanding that the applicant wished to continue working in his employment with the respondent. By letter dated 23 June 2014, the respondent wrote to the applicant. Among other matters, the respondent’s HR Manager – NSW Operations advised the applicant as follows:

“Accordingly, we are giving you notice that Parmalat will require you to prove your fitness for duty before returning to work at the Lidcombe Distribution Centre. We invite you to consult with your treating doctor/s and provide Parmalat with a documented treatment plan on how you will achieve the level of fitness required to carry out all of the inherent requirements of your role. Parmalat will also require an estimated timeframe for this plan to be completed.”

[7] From June 2014, the applicant initially was stood-down from duties with pay; he next accessed accrued paid leave entitlements; and, when the paid leave entitlements were effectively exhausted, he thereafter remained employed by the respondent, but without pay. The applicant encountered significant financial hardship as a result of the stand-down; his income protection insurer apparently advised that an insurance application would not be entertained, with the result the applicant did not make a formal application; and the applicant was otherwise apparently ineligible for social security benefits so long as he remained employed by the respondent. The respondent expected that during the stand-down the applicant would, in accordance with medical advice, take steps concerning weight/health management with a view to a resumption of duties.

[8] When the occupational physician conducted a second assessment of the applicant in February 2015 in connection with fitness for work, the applicant’s weight had increased from 165kg to 175kg (notwithstanding that the applicant had obtained a treatment plan from his medical practitioner around June 2014). A cardiologist’s report that was before the occupational physician also indicated the applicant had severe obstructive sleep apnoea that may pose a problem with operating mobile machinery. The occupational physician was of the view that the applicant could (only) conduct semi-sedentary-type work which did not require any heavy manual handling and operating mobile machinery for full-time hours and days, if this was available to him.

[9] There were intermittent communications involving the respondent’s representatives and the applicant and/or his representatives in the period from the stand-down to the date of termination of employment. Significantly, in terms of process leading to the eventual dismissal, the respondent’s in-house HR Advisor wrote to the applicant on 20 March 2015 advising as follows:

“From the medical evidence received Parmalat Australia have limited positive prognosis to achieve the level of fitness required for a return to normal duties, in the time since you have been stood aside.

Please be aware that Parmalat is not able to hold a position for you indefinitely especially since it is now 10 months since you were last able to carry out normal duties.

Given the information at hand that there is no positive prognosis for a return to normal duties in the foreseeable future, we believe it is appropriate to review your employment at Parmalat Australia. Therefore, we invite you to provide any information you feel may be relevant to us. We ask that you provide this information in writing by Thursday 2ndApril 2015.

If you fail to provide the information requested, Parmalat Australia will need to make a decision about your employment on the available information at that time.

Please contact me on [telephone number] if you have any questions in relation to this matter.”

[10] A sequence of events followed this letter. In a much-abbreviated form, these events included the following matters.

• On 4 April 2015, the applicant’s spouse (on behalf of the applicant) sent an emailed response to the respondent’s show cause-style letter of 20 March 2015.



• A meeting to discuss matters concerning the applicant commenced on 20 April 2015, but that meeting was effectively postponed to 30 April 2015 to facilitate participation by organisers from the applicant’s union. Among other outcomes of the meeting of 30 April 2015:

- inquiries were made to determine whether a suggested alternative role of a plastic cutter existed that would be suitable for the applicant (but, for the reasons identified in the respondent’s evidence, plastic-cutting was only one component of a full-time Production Operator role);

- certain documentation concerning a job analysis for a Cool Room Operator and a position description for a Production Operator was forwarded to the applicant.

• On 13 May 2015, the applicant attended an appointment with a medical practitioner. The medical practitioner hand-annotated comments on the job analysis-type documentation provided to the applicant by the respondent, and affixed stamps bearing his provider number and contact details. (It is common ground the applicant did not provide this documentation to the respondent prior to the date of dismissal, albeit reference was made to it in an email of 17 May 2015 from the applicant’s spouse to the HR Advisor about a range of matters.)



• There were various communications - including emails, and telephone and in-person conversations - concerning a further meeting to be held on 26 May 2015.



• There was no attendance by the applicant and/or his representatives for the meeting of 26 May 2015.



• There was no response from the applicant and/or his representatives to the HR Advisor’s endeavours to ascertain why there was no attendance by them for the meeting of 26 May 2015.



• The respondent proceeded to dismiss the applicant on 26 May 2015, with a payment in lieu of notice; and communicated advice of the dismissal in a letter dated 26 May 2015 (which the applicant received on or about 29 May 2015).

[11] While much of the evidence was uncontested, it is necessary, nonetheless, to make findings concerning a number of particular matters arising from the evidence and submissions. Those matters are as follows.

• To the extent of any relevant inconsistency, I prefer and accept the evidence of the respondent’s witnesses as to what was discussed at the meeting on 30 April 2015, and (to the extent it may be relevant) also their descriptions of the tenor of that meeting.



• I do not accept it was incumbent upon the respondent (in relation to emailed correspondence of 17 May 2015 from the applicant’s spouse to the HR Advisor which referred, in part, to a comparatively recent assessment by the applicant’s medical practitioner) to, as it were, chase-up the applicant and/or his representatives for the documentation to which reference was made in that email. Rather, it was incumbent upon the applicant and/or his representatives to provide to the respondent, in a timely way, any relevant, current information to inform any decision-making concerning the applicant. In this regard, it also may be noted that endeavours by the respondent to contact the applicant’s former medical practitioner for certain information had not proved successful.



• I accept the evidence of the HR Advisor describing the content of her (separate) discussions with two union organisers about the meeting of 26 May 2015 concerning the applicant.



• I am satisfied the applicant and/or his representatives were aware of the meeting of 26 May 2015 but, for reasons which are not entirely clear, inadvisedly determined neither to attend the meeting nor seek a rescheduling of the meeting (and nor did they respond to inquiries made by the HR Advisor as to why there was no attendance). Given my acceptance of the evidence of the HR Advisor concerning her earlier conversations with each of the union organisers about the meeting, there is no basis, or no plausible basis, to attribute non-attendance at the meeting of 26 May 2015 to, for example, some form of misunderstanding or miscommunication concerning the meeting or its purpose, or both. Further, and in the alternative, if 26 May 2015 was, for example, unsuitable to the applicant and/or his representatives, it is reasonably to be expected that the applicant and/or his representatives should have proposed alternative available dates for the meeting and, at the least, responded to the HR Advisor’s messages seeking advice as to why there was no attendance on 26 May 2015. I am reinforced in my conclusion that the applicant and/or his representatives determined, for their own reasons, not to attend the meeting of 26 May 2015 by the evidence of the failure of the applicant and/or his representatives to respond at all to the HR Advisor’s follow-up inquiries concerning non-attendance at the meeting on the day in question (and, even allowing for some delayed time-frame for responding to those follow-up inquiries - and whilst acknowledging the respondent had already effected the dismissal - also in the days that followed to the date the applicant received the letter advising of the dismissal).



• I am satisfied the respondent had a proper basis to accept the assessment by the occupational physician rather than proceed to return the applicant to duties on the basis of medical certificates as to fitness for duty provided by the applicant’s medical practitioner. For example, the first medical certificate dated 25 July 2014 from the applicant’s medical practitioner indicated the applicant was “physically fit to work as a forklift driver”, in circumstances where, as I have noted earlier, the applicant’s weight, in and of itself, objectively precluded safe forklift operation given the weight safety ratings. The second medical certificate dated 10 January 2015 indicated, without any elaboration as to the type of work for which fitness was being certified, that the applicant “is currently physically fit to work”. (It is otherwise common ground the respondent was not provided with a copy of the documentation prepared by the applicant’s most recent medical practitioner until after this application was lodged.)



• I am satisfied it was reasonable for the respondent to rely on what was before it in relation to the assessment of the occupational physician, even though his most recent assessment was conducted in February 2015 and the dismissal was effected in late-May 2015. I do not accept it was incumbent upon the respondent to arrange a further assessment by the occupational physician or similar around May 2015 prior to effecting the dismissal. The applicant and/or his representatives did not provide or advance anything that reasonably would have led the respondent to have cause to re-consider the applicant’s capacity to perform the inherent requirements of his role in the time following the show cause-type letter. (It may be noted, albeit only in passing given the information was not before the respondent at a relevant pre-dismissal time, that there was evidence of correspondence from a surgeon dated 27 May 2015 - related to seeking a release of superannuation funds in order to undergo certain surgery to treat obesity - indicating the applicant’s weight around the time of the dismissal on 26 May 2015 was 170kg.)

[12] Against the background of the matters advanced in the evidence and submissions, I turn now to consider some particular matters required to be considered apart from the conclusions listed above.

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

[13] Assessments made by a specialist occupational physician indicated the applicant was unable safely to undertake the inherent requirements of the role of Cool Room Operator. Leaving aside the health-related issues identified in the evidence, the applicant’s weight exceeded the weight safety rating for him to operate the forklifts - with the result the applicant could not be permitted by the respondent to operate forklifts.

[14] I accept the respondent’s submission there was a valid reason to dismiss the applicant on the basis of the applicant’s incapacity concerning the inherent requirements of his position (and note also that the decision to dismiss was made approximately a year after the applicant was stood-down with a view to a return to work after addressing medically-advised weight/health management issues).

Whether the applicant was notified of that reason

[15] The respondent notified the applicant of the reason for the dismissal in its letter of 26 May 2015 advising of the termination of employment.

Whether the applicant was given an opportunity to respond to any reason related to capacity or conduct

[16] The relevant evidence in this regard (partly distilled in a chronology of events listed in the respondent’s outline of submissions from about paragraph 47) indicates, I accept, that the applicant was afforded opportunity to respond to the concerns of the respondent.

Any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to dismissal

[17] There was no evidence of any unreasonable failure by the respondent to allow the applicant to have a support person present to assist at any discussions prior to dismissal; the applicant was supported in such discussions by persons including union representatives and his spouse.

[18] That the applicant and/or his representatives determined, I have concluded, not to attend the meeting of 26 May 2015 does not allow a conclusion there was any relevant unreasonable failure to allow the presence of a support person to assist at any discussions relating to the dismissal.

If the dismissal related to unsatisfactory performance by the applicant - whether the applicant had been warned about that unsatisfactory performance before the dismissal

[19] The termination of the applicant’s employment was not related to unsatisfactory performance, so the matter of prior warning does not arise.

The degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/the absence of dedicated human resource management specialists or expertise etc

[20] The respondent employs a sizeable number of employees, including human resources personnel.

Any other matters that the Commission considers relevant

[21] The issuing of the letter of dismissal on 26 May 2015, apparently within a short time following the non-attendance at the meeting, seems, on one view of it, relevantly somewhat peremptory. Nonetheless, given the past history of matters concerning the applicant and the respondent, including, but not limited to, the applicant’s tardy provision or non-provision of information and documentation, the peremptory issuing of the letter does not lead me to make conclusions adverse to the respondent’s case.

[22] Lastly, I note the applicant did not disclose to the respondent (or even, apparently, disclose to his union representatives) that around the time of dismissal he was seeking to have surgery concerning his obesity. Having previously been unable to afford the costs of such surgery, more particularly in circumstances where he had been stood-down without pay, the applicant sought the early release of superannuation monies in order to undergo surgery. Consequent upon surgery in mid-June 2015, the applicant shed 20kg by the end of July 2015 and was expected to continue to lose weight for a further 6-9 months; and the applicant’s prior health issues were either resolved or resolving. These post-dismissal developments notwithstanding, the respondent was, I am bound to conclude, reasonably entitled to act on the information such as was available to it as of 26 May 2015 when the dismissal was effected.

[23] On a consideration of the evidence and submissions, and whilst not unsympathetic to the applicant’s circumstances, I have not been satisfied the applicant has established a case that the dismissal was harsh, unjust or unreasonable. As such, an order dismissing the application will issue in conjunction with this decision.

COMMISSIONER

Appearances:

T. Warnes of the Transport Workers’ Union of Australia for the applicant.

A. Aspromourgos,agent, for the respondent.

Hearing details:

2015.

Sydney;

October, 14-15.

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