Rodney Baxter v Surfside Buslines Pty Ltd

[2021] FWC 3264

[2021] FWC 3264

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Rodney Baxter
v
Surfside Buslines Pty Ltd
(C2020/8527)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 JUNE 2021

s.365 - Application to deal with contraventions involving dismissal (consent arbitration) – Whether Commission has jurisdiction to arbitrate dispute involving dismissal under s. 365 which also involves a non-dismissal dispute – Failure to plead relevant adverse action – Finding that requires that alleged adverse action not pleaded in application not be considered – Applicant not dismissed for exercising workplace right – Application dismissed.

INTRODUCTION

[1] This Decision concerns an application by Mr Rodney Baxter (the Applicant or Mr Baxter) under s. 365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dismissal dispute. The dispute relates to Mr Baxter’s employment with, and subsequent dismissal by, Surfside Buslines Pty Ltd (the Respondent or Surfside). The matter was not resolved by conciliation and the parties consented to the Commission determining the dispute by arbitration. On 31 May 2021, I issued an order dismissing the application and indicated that I would deliver reasons shortly thereafter. These are my reasons.

[2] Permission was granted under s. 596 of the FW Act for the Applicant to be represented by a lawyer, on the basis that I was satisfied that the application raised issues of complexity and that it would be unfair for the Applicant not to be represented, particularly in circumstances where the Applicant states that he has limited literacy skills. The Applicant was represented by Mr Geoff Baldwin, Special Counsel of Stacks Champion. Surfside was represented by Mr Paul Harris, Human Resources Manager for Queensland and New South Wales.

[3] Directions were issued to both parties requiring them to file and serve material for the arbitration including a requirement for any document to be relied on to be appended to a witness statement explaining the document. The Directions also made clear that witness statements were to include all evidence-in-chief and that leave would be required to adduce any additional evidence. The Applicant, through his representative, did not comply with the Directions and his material was filed outside the time required in the Directions. Further, the Applicant’s witness statement was a summary that did not set out his evidence-in-chief and documents available to the Applicant when he filed his statement were not appended to it. The Applicant sought to tender those documents and to give further oral evidence during the hearing. It also emerged during the hearing that the Applicant had recorded a meeting on a digital device without advising other participants and sought to tender a transcript of the recording.

[4] The necessity to deal with these matters as the hearing progressed, significantly delayed the hearing. The case advanced on behalf of the Applicant morphed to a significant extent from the case pleaded in the application. While there were some deficiencies in the material filed by the Respondent, these were mostly (but not totally) caused by the issues I have identified with the Applicant’s case. These are matters to which I will return in more detail.

[5] In short compass, the Applicant’s case as pleaded in his form F8 Application was that he was dismissed for exercising workplace rights to make complaints about his employment (specifically allegations of bullying) and for making a claim for workers compensation (s.340) and in contravention of s. 352 Temporary absence due to an illness or injury. In his initial outline of submissions, the Applicant raised an additional matter asserting that the Respondent had not met unspecified obligations under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WC Act) and had not acted to “curb the bullying” and that it would be submitted that had the Respondent done so, the Applicant would have returned to his position as a bus driver. It was not clear whether the asserted failure to meet obligations under the WC Act was a form of adverse action or a workplace right.

[6] On the first day of the hearing, the Applicant’s representative made a further assertion to the effect that the relevant obligation under the WC Act was to “cooperate with [the Applicant] in a return to pre-injury health and that the Respondent’s failure to meet this obligation resulted in the Applicant’s absence exceeding the period defined in Regulation 3.01 of the Fair Work Regulations 2009 (FW Regulations) as a temporary absence for the purposes of s. 352, which extended the operation of s. 352. In final submissions (for which a further hearing was required given the delays in the two days which had been allocated) the Applicant’s representative advanced a further submission to the effect that in addition to dismissing the Applicant the Respondent engaged in adverse action by failing to comply with requirements in s. 45 of the WC Act to implement an injury management plan, and that the Respondent took such action because the Applicant exercised workplace rights by complaining about work related matters and making a workers’ compensation claim.

[7] The Respondent took issue with the manner in which the Applicant’s case changed throughout the course of the hearing, describing it as a “rollercoaster” and asserting that acceptance by the Commission of some of those assertions would deny the Respondent a proper opportunity to respond to the case advanced by the Applicant. This is also a matter to which I will return. Evidence in respect of the consent arbitration was heard on 4 and 5 February, with oral closing submissions on 9 March 2021. Evidence was given by the Applicant on his own behalf. 1 Evidence for the Respondent was given by Mr Matthew Thompson, Depot Manager – Tweed.2

RELEVANT LEGISLATIVE PROVISIONS

[8] Section 369 of the Act empowers the Commission to deal with general protections dismissal disputes (such as the present matter), by consent arbitration. Subsection 369(1) sets out the requirements which must be met before the Commission may deal with such a dispute by arbitration:

(i) the Commission issues a certificate under s.368(3)(a) in relation to the dispute (s.369(1)(a));

(ii) the parties notify the Commission that they agree to the Commission arbitrating the dispute (s.369(1)(b));

(iii) the notification is given within 14 days of the certificate being issued, or within such period as the Commission allows or an application made during or after those 14 days (s.369(1)(c)(i)); and

(iv) the notification complies with any requirements prescribed by the procedural rules (s.369(1)(c)(ii)).

[9] There is no dispute that the requirements referred to above have been met. The parties notified the Commission that they agreed to the Commission arbitrating the general protections dismissal dispute by filing a completed Form F8B. I am satisfied that I may deal with the dispute by arbitration.

[10] Part 3 – 1 of the FW Act, under which the application is made, prohibits, amongst other things, an employer from taking adverse action against an employee because that employee exercises a workplace right. Section 340 of the FW Act relevantly provides:

“(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has or proposes to exercise a workplace right; ...”

[11] The meaning of “workplace right” is found in s. 341, which provides as follows:

“341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.”

[12] “Adverse action” is defined in s. 342 in a table dealing with the various circumstances in which it can be taken by a person against another person. In relation to an employer against an employee item 1 in the table provides that adverse action is taken if:

“the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.”

[13] Section 352 of the FW Act prohibits dismissal because an employee is temporarily absent from work because of an illness or injury of a kind prescribed by the regulation. Regulation 3.01 of the FW Regulations prescribes kinds of illness or injury for s. 352 as follows:

“3.01 Temporary absence—illness or injury

(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a) 24 hours after the commencement of the absence; or

(b) such longer period as is reasonable in the circumstances.

Note: The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee:

(a) is required by the terms of a workplace instrument:

(i) to notify the employer of an absence from work; and

(ii) to substantiate the reason for the absence; and

(b) complies with those terms.

(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

(5) An illness or injury is not a prescribed kind of illness or injury if:

(a) either:

(i) the employee’s absence extends for more than 3 months; or

(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.”

[14] Section 361 of the FW Act provides that the reason for action is to be presumed unless proved otherwise and is in the following terms:

“361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.”

[15] In Keep v Performance Automobiles Pty Ltd 3(Keep) a Full Bench of the Commission said in relation to s. 340:

“An employer contravenes s.340 if it can be said that the exercise by the employee of a workplace right was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s.342. 4

…

The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.” 5

[16] Sections 360 and 361 of the FW Act are important provisions in the legislative scheme concerning general protections. In Keep the Full Bench also made the following observations in relation to those provisions:

“Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:

“If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and

(b) taking that action for that reason ... would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.”

It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively. 6

[17] In Tattsbet Limited v Morrow 7the Full Court of the Federal Court held that s. 361 requires more than an applicant simply making an allegation before the onus shifts to the respondent to rebut the statutory presumption. Jessup J (with whom Allsop J and White CJ agreed) held that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact.

[18] In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited 8 Wigney J distilled the following principles in relation to s. 361 of the Act from the High Court Decisions in Board of Bendigo Regional Institute of TAFE v Barclay9 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd10

“As has already been noted, s 361 creates a statutory presumption that operates in cases where it is alleged that a person contravened s 340. Relevantly, where it is alleged that a person has taken adverse action against another person because that other person has a workplace right, or has exercised a workplace right, it is presumed that the action was taken for that reason, unless the person proves otherwise. Here, the CFMEU alleged that De Martin & Gasparini took adverse action against its employees for reasons that included that the employees had or had exercised workplace rights. Those workplace rights were the benefit of the Enterprise Agreement (a workplace instrument), and the ability to approve or not approve a variation of the Enterprise Agreement (a process under the Fair Work Act). By reason of s 361, it is to be presumed that De Martin & Gasparini took the adverse action for those reasons unless it proves otherwise.

One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal, however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.

First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62]. 11

[19] I have applied these principles to my consideration in the present case.

PROCEDURAL ISSUES

Non-compliance with Directions

[20] It is necessary to set out issues resulting from the Applicant’s failure to comply with Directions which were issued on 16 December 2020, for the hearing of the Application. Directions are an important mechanism providing procedural fairness including by ensuring that parties come to the Commission understanding at least the basis of the case they are required to answer. In the present circumstances, the Respondent consented to the arbitration of a dispute and was in my view entitled to presume that the dispute it was consenting to have arbitrated was within the scope of the pleadings in the Form F8 Application or at least articulated in the initial outline of submissions filed by the Applicant so that the Respondent had an opportunity to meet the Applicant’s case. In a general protections matter, this assumes greater significance given that s. 361 of the FW Act operates to shift the onus to the Respondent to rebut the presumption that action is taken for a particular reason unless the person who took the action proves otherwise, and s. 360 which provides that a person takes action for a particular reason if the reasons for the action include that reason.

[21] The Directions I issued in this matter were detailed. Further, the Applicant’s representative is a lawyer. The Directions required that the Applicant file submissions, documents, and witness evidence on which he replied by 8 January 2020. The Directions advised that the Commission would not accept material filed in non-compliance with the directions unless an extension of time had been sought and granted prior to the time for compliance had expired. Such a request for an extension of time was directed to be made in writing to the Commission, specify the grounds on which the extension is sought, and attached relevant documents (eg medical certificates). The Applicant did not comply with any of these Directions.

[22] Several days after the date by which the Applicant was required to file his material, correspondence was sent from my Chambers to ascertain if the Applicant intended to proceed with the matter. The Applicant’s representative responded apologising for the delay and proposing an alternative date – 15 January 2021 – for compliance. The Respondent objected to a further period being granted and over that objection, a further period was granted and amended Directions were issued, maintaining the hearing dates of 4 and 5 February 2021. The Directions also required that any party seeking permission to be represented by a lawyer or paid agent file a brief outline of submissions in relation to why permission should be granted. The Applicant did not comply with this requirement.

[23] In addition, the Directions set out the following requirements in relation to submissions and witness statements that the parties were directed to file:

“[7] The Submissions must include all relevant facts, dates and incidents to support all claims made.

[8] Witness statements are required to be provided for each witness that the parties intend to call to give evidence at the hearing and are designed to take the place of evidence-in-chief. Any document parties seek to rely on to support their application should be attached to a witness statement which identifies the document. Leave of the Commission may be required if evidence in addition to that set out in a witness statement, is sought to be advanced at the hearing.”

[24] Again, the Applicant did not comply with this requirement. The Applicant’s witness contains little detail and is in the words of his representative, “summarises” his evidence. Contrary to the Directions and without seeking leave, the Applicant’s representative sought to adduce further evidence-in-chief from the Applicant at the commencement of his oral evidence. Despite not having sought leave to do so, I permitted the Applicant’s representative to adduce additional evidence-in-chief from the Applicant. 12 During that additional evidence-in-chief it became apparent that the Applicant had in his possession documents that were potentially relevant to his case but were not appended to his witness statement. These documents included a written complaint the Applicant claimed to have made to the Respondent’s human resources department about an incident in July 2018 involving a run sheet that the Applicant claimed was incorrect. The Applicant asserted that it was following this complaint that the issues he contends constituted bullying started.

[25] After raising with the Applicant’s legal representative that these and other relevant documents should have been filed with the Applicant’s witness statement, I granted an adjournment of almost two hours to enable the Applicant’s representative to seek further instructions from the Applicant and collate documents that should have been filed and which were said to be relevant to the issues in dispute. During the adjournment, the Applicant’s representative sent eight emails to my Chambers appending documents sought to be tendered into evidence.

[26] After reviewing those documents during the adjournment, I put a provisional view to the parties that on the basis that many of the documents were the Respondent’s documents, and others were documents said to have been sent by the Applicant to the Respondent, that I would allow the Applicant to give evidence about each document and either admit it if the Respondent consented or mark the document for identification and allow the Respondent to verify whether documents had been received or to seek further instructions from its witnesses about such documents before the hearing resumed on the second day. Neither party objected to this course on the basis that it meant that the hearing could proceed and that the parties would not be put to the cost and inconvenience that would have resulted from an adjournment. I also indicated to the Respondent that if it identified any additional relevant documents by virtue of the process of verifying those tendered by the Applicant, an opportunity would be given to the Respondent to seek permission to tender those documents. 13

[27] A further issue arising during the Applicant’s oral evidence was the record of a final meeting between the Applicant and the Respondent prior to his dismissal. In its evidence, the Respondent supplied a “record of discussion”. The Applicant did not file any material in reply to this evidence. It subsequently emerged, during the first day of hearing that the Applicant did dispute this evidence and, in fact, had a digital recording of that meeting or at least a part of it and that the recording had not been tendered by the Applicant. The Applicant sought to tender the recording and a transcript of that recording. The Respondent objected to this further material being brought to my attention until submissions could be made at the resumed hearing the following day. The Applicant’s representative did not object to that course. At the conclusion of the Applicant’s evidence, he also referred to further documents which were potentially of relevance to his case. I informed the Applicant that if he wished to file further documents on the second day of hearing “you can seek leave to do it through your solicitor and I will deal with it at the time”. 14 After discussion, the Applicant did not press the filing of this further material15 although the transcript of the final meeting was introduced into evidence without objection after the parties and the Commission listened to the audio recording made by the Applicant in order to confirm the accuracy of the transcript made by the Applicant and the duration of the recording.16

[28] In reviewing the documents filed on the first day of the hearing, the Respondent sought to file additional documents, late on the evening of the first day of hearing, that it had not previously sought to file. The Applicant’s representative responded to this request approximately 30 minutes before the second day of the hearing by sending correspondence to the Respondent’s representative in the following terms:

“As you might appreciate, I have only just sought instructions from Rodney Baxter on this and the preceding two emails you sent late yesterday. Presumably the documents, notably the screenshots, are aimed at contradicting Rodney’s account of the incident referred to, but without context or instructions I am unable to properly understand their significance.

I have also been instructed by Rodney to advise that, following yesterday’s proceedings, he suffered considerable stress, and in consequence does not intend to participate in today’s hearing unless required to do so. His evidence had been concluded yesterday, but I’m unsure whether what you have sent through is material on which you would seek leave to further cross-examine him; or whether you simply want to have the material admitted into evidence so that you are able to make comments about it. In this connection I would make clear that, in light of the latitude provided to us by the Deputy President yesterday, I would not object to either of these things; other than to say that I would wish to take instructions from Rodney beforehand.

So on that provisional basis I have no objection to the admission into evidence of these three emails. Should you wish to further cross-examine Rodney, you might let me know.

Finally, you will have seen my email agreeing that the interview materials I sent in late yesterday be not admitted into evidence or exposed to the Deputy President pending discussion of some kind. I am not entirely sure what you have in mind in this respect, or whether you say they are irrelevant, unfairly prejudicial, or inadmissible for some other reason. However I will be most happy to discuss.”  

[29] At my request, my Associate corresponded with both parties to advise that I would deal with whether the additional material should be admitted into evidence at the hearing on that day including any objections that either party may have. Despite the correspondence from my Chambers not including any indication that I was granting leave to the parties to file yet more material, the Applicant’s representative responded by forwarding further material that had been sent to him by the Applicant after the hearing had been adjourned on the previous day. This further material comprised some 13 separate emails sent between 9.04 am and 9.18 am on the second day of the hearing in circumstances where the hearing had been scheduled to commence at 9.00 am.

[30] I also caused my Associate to correspond further with the parties to point out that Mr Baxter, as the Applicant, was required to attend the second day of hearing and that if it was sought that Mr Baxter be excused from hearing, or that he was seeking an adjournment, the Applicant’s representative should have put a proper basis for such an application with relevant medical evidence in support.

[31] Despite these issues, I determined to proceed with the hearing on the basis that the Applicant’s representative maintained that the Applicant had complied with Directions and put his case appropriately and did not seek an adjournment. 17 I was also of the view that as the Applicant was legally represented it was a matter for his representative to conduct the case as he saw fit and to make forensic decisions about what material was placed before the Commission. Further, I had regard for the fact that the Applicant’s representative specifically elected to continue with the hearing rather than seek an adjournment to consider whether further evidence should be tendered.18 In this regard, the Applicant’s representative expressed the view that in light of the reverse onus of proof in s. 361 of the Act, sufficient material had been placed before the Commission to shift the onus to the Respondent to establish that the dismissal was not for a reason that contravenes the general protection provisions of the FW Act.

[32] As a final procedural matter, after having dealt with the additional documents sought to be relied upon by the Applicant and admitting into evidence those which the Respondent could identify and did not object to, a number of documents remained in dispute. The Applicant maintained that the Respondent was or should be aware of these documents on the basis that he had sent them to various managers. The Respondent, in the limited time it had had to seek instructions on the documents, could not verify if it had ever received them. I determined to admit the documents as a single bundle on the basis that I would consider the weight, if any, to be placed on the documents. 19 This bundle became Exhibit A12. I will deal with each of the documents in this bundle at relevant points below.

The Applicant’s case as pleaded

[33] In addition to the issues arising from the failure of the Applicant to comply with Directions, the manner in which the Applicant’s case was pleaded was unhelpful. It is also necessary to set out the pleadings and various contentions made by the Applicant throughout the course of the matter. The application was made under s. 365 of the FW Act which deals with applications for the Commission to deal with a dismissal dispute. The pleadings set out in the Applicant’s Form F8 General protections application involving dismissal, at item 3.1 of the form, described the actions of the employer that led to the application being made as baseless allegations of unsatisfactory performance and conduct – including instances where the Applicant’s insistence on compliance with the Respondent’s procedures and policies was the substance of the allegations – and which amounted to bullying. The Applicant also alleged that he had complained about bullying and underpayment of wages.

[34] The Applicant stated that he took sick leave in August 2019 and was diagnosed as having suffered a psychological injury which was accepted by the Respondent’s workers’ compensation insurer and “since the acceptance of his claim, the Applicant has been the subject of a rehabilitation management plan under workers’ compensation legislation”. The Applicant was dismissed with effect from 6 September 2020 on the grounds of medical incapacity after being told that his absence was no longer temporary. At 3.2 of the Form F8 the Applicant states that the Respondent has contravened s. 340 of the FW Act (in relation to a workplace right) and s. 352 (temporary absence – illness or injury). In 3.3 of the Form F8 the Applicant provided the following explanation in relation to how the actions he had described in 3.1 of the Form contravened the sections of the FW Act he had identified in question 3.2:

1. The Applicant’s psychological injury arose from his work, and the fact of acceptance of his workers’ compensation claim is evidence that the Respondent’s bullying and associated actions giving rise to the injury were not reasonable.

2. In complaining about being bullied and underpaid the Applicant was exercising a workplace right within the meaning of s. 341 of the Act and was accordingly protected by s. 340 from the taking by the Respondent against him of adverse action within the meaning of s. 342.

3. In lodging a workers’ compensation claim, the Applicant was exercising a workplace right within the meaning of s. 341 of the Act and was accordingly protected by s. 340 from the taking by the Respondent of adverse action within the meaning of s. 342.

4. The Applicant was protected from the taking of adverse action against him by the Respondent because of temporary illness or injury, because the acceptance of his workers’ compensation claim attracted the operation of Reg 3.01(2)(b) of the Fair Work Regulations 2009.

5. In dismissing the Applicant, the Respondent took adverse action against him, in contravention of s. 340 of the Act, this being a civil remedy provision.

[35] The remedies sought by the Applicant as set out in 2.1 of the Form F8 are reinstatement, compensation for unfair dismissal and payment of unpaid overtime. The outline of submissions filed by the Applicant states in summary that:

•  The Applicant was bullied and made fun of in various ways including by being made the subject of criticism for simply complying with the Respondent’s policies and procedures as well as road safety and public transport requirements;

•  As a consequence the Applicant was diagnosed with a psychological injury which was accepted by the Respondent’s workers’ compensation insurer and by virtue of s. 11A of the Workers’ Compensation Act 1987 (NSW) is prima facie evidence that the actions of the Respondent in either participating in, condoning or ignoring the bullying, were not reasonable;

•  In submitting the workers’ compensation claim the Applicant was exercising a workplace right within the meaning in s. 340 of the Act;

•  Because of the acceptance of the claim, under the Workplace Injury Management and Workers’ Compensation Act 1988 (NSW) the Respondent had obligations which it neither fulfilled nor attempted to fulfil;

•  Had the Respondent fulfilled those obligations and acted to curb the bullying there is every reason to think that the Applicant could have been restored to pre-injury health and continued to work as a bus driver; and

•  The Applicant had become an annoyance to the Respondent so that the real and immediate or operative was that he had exercised workplace rights and that the Respondent took adverse action within the meaning in s. 342 of the FW Act against the Applicant, for this reason.

[36] The initial outline of submissions filed in accordance with Directions, also stated that it was considered unnecessary for the Applicant to tender documents as to his medical condition, because there should be no dispute about this. In opening submissions made orally at the hearing, the Applicant’s representative asserted that in addition to dismissing the Applicant, the Respondent took adverse action against him by asserting that when the Respondent decided that the Applicant was “unuseful” and that “one way or the other he would be out of a job”, the Respondent’s handling of the Applicant as an employee resulted in him becoming medically unfit and consequently the Applicant was dismissed. In an attempt to clarify the case put on behalf of the Applicant I had the following exchange with his representative.

“THE DEPUTY PRESIDENT:  Just so I'm 100 per cent clear about this, Mr Baldwin, as I understand the application what the applicant is asserting is that his dismissal in respect of - or the adverse action he's claiming is dismissal and he's saying that he was dismissed because he exercised workplace right and the workplace right, as I understand it, is complaining about being bullied and underpaid and lodging a worker's compensation claim.  They're the workplace rights that are asserted.

MR BALDWIN:  Yes, Deputy President.

THE DEPUTY PRESIDENT:  And then he further asserts that he was dismissed on the basis of a temporary - in contravention of other protections being not to be dismissed because of a temporary absence due to illness or injury.

MR BALDWIN:  That is correct.  Now, it's conceded of course that he was in fact absent from the workplace for a considerably long period of time than is provided for in the regulations applying to section 350.

But it is also contended and we say that this arises from material before the respondent, that had the respondent managed his - managed him as the employee in the way that it should have, he would have returned to work - he would have (indistinct) problem and returned to work so that - well, we would say from that point of view that what he originally had was indeed something which would have been a temporary absence because of ill-health under section 352 and the reasons we extended it for so long was that the respondent was unhelpful and obstructive when it indeed had a positive duty under the worker's compensation legislation and Workplace Injury Rehabilitation Injury Management Act to cooperate with him in a return to pre-injury health and it simply did not do that.

THE DEPUTY PRESIDENT: So do you assert that section 352 extends to a dismissal in circumstances where the person is not temporarily absent as defined by the regulations but would've been temporarily absent if the employer hadn't engaged in conduct that it engaged in, is that what you're - - -

MR BALDWIN:  That's pretty much it, yes.” 20

[37] At this point the Applicant’s case appeared to morph from a case where he asserted that he exercised workplace rights by making complaints about bullying (in the form of warnings about matters that were not legitimate) and by making a claim for workers’ compensation and was dismissed for these reasons, to include a claim that the Respondent failed to manage the Applicant’s injury appropriately, resulting in his inability to return to work and thereby attracting the operation of s. 352 of the Act. It was not entirely clear whether this alleged failure was said to be adverse action or whether it was asserted that the Applicant had a workplace right for his injury to be managed in a particular way, and in respect of which he asserts that adverse action was taken against him by virtue of a failure to afford him that right. It was also not clear whether the assertion was that the alleged failure to manage the Applicant’s injury was itself adverse action that injured him in his employment so that he was liable for dismissal.

[38] In closing submissions, the Applicant’s case morphed further. The Applicant referred only to s. 340 of the FW Act in relation to workplace rights submitted that the Respondent had an obligation under s. 45 of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) to implement an injury management plan. The Applicant contended that two forms of adverse action were taken by the Respondent, involving the failure of the Respondent to comply with its injury management obligations and the dismissal of the Applicant. The Applicant also contended that the failure to implement an injury management plan, came within the definition in at least one, and arguably all, of paragraphs (b) and (d) inclusive of item 1 in the table in s. 342 of the FW Act: injury in employment; alteration of position to employee’s prejudice or discrimination. The two forms of adverse action were asserted to have been taken because the Applicant exercised workplace rights to complain about workplace matters and by making a claim for workers’ compensation.

EVIDENCE

The Applicant

[39] The Applicant commenced employment with Surfside on 23 March 2017. He was employed as a bus driver. The Applicant has worked as a driver since the early 2000s. The Applicant states that he suffers from a learning difficulty, meaning that sometimes it takes him longer than persons without a learning difficulty to complete forms and to write reports. Surfside was aware of the Applicant’s learning difficulties. In cross-examination, the Applicant asserted that he is illiterate and cannot read or write, and later said that he is “not fully illiterate” but has a lot of problems spelling and reading. 21

[40] As a bus driver, the Applicant drove a passenger bus used for public transport. The Applicant drove on public and school routes in the Murwillumbah and Tweed Heads areas. As a bus driver, the Applicant was obliged to adhere to the requirements of the Company’s driver handbook as well as the Passenger Transport Act 2014 (NSW) and Passenger Transport (General) Regulation 2017. The Applicant states that he was at all times very conscious of the need to comply with Surfside policies and procedures; road safety rules; and rules governing the operation of public passenger transport services.

[41] Initially the Applicant did not have any problems in the workplace and states that it was a fantastic workplace. 22 The Applicant got on well with managers and other drivers and his driving was regarded as satisfactory, with no criticisms being made in that respect. The Applicant states that from about the middle of 2018, Surfside began to make allegations of unsatisfactory performance concerning his conduct and work performance and contends that in “in all cases” the allegations “arose from” his insistence on complying with policies, procedures, and rules. The Applicant recounted some of those instances of alleged unsatisfactory performance in his evidence and tendered a range of documents which I deal with chronologically.

[42] The first document is a letter to the Applicant from the Respondent relating to a customer complaint made on 28 March 2018 and requesting that he provide a “statement…detailing your recollection of events”.  23 The description of the complaint is:

“Caller complains on 28/03/18 that the driver of school bus 1233 at 7.09 from Banora Point to Kingscliff High school has offered to take her daughter and other students on the bus to a cafe on their way to school. Caller states her daughter feels uncomfortable and that the driver is a bit too familiar with the students. Caller states her daughter told her the driver took some male students to MacDonald’s on the way to school on 27/03/18 but her daughter was not on the bus that day. Caller states the driver is new to this route.”

[43] The Applicant did not give further evidence about this matter. The Applicant also gave evidence about an incident in July 2018, 24 when he was “written up” and given a verbal warning (which he states probably occurred in August 201825) for reporting an issue with left and right-hand turns that he considered were incorrectly described on a run sheet. At the hearing the Applicant said in relation to this matter:

“I'm not too sure, it's about the run 12-16 that happened in July 2018.  I went to ops and I told ops about the run sheet was incorrect and that the lights were all over the place and (indistinct) and he agreed with me it was.  A few weeks - a few days later I got new students on the bus and the previous driver who was on holidays who I was replacing for a short while was going outside the run sheet and dropping him outside the run sheet.  Now, that's something I will not do because if there's an accident outside the run sheet the driver would be held liable for it and there's no radio reception out there or there's no mobile phone coverage.  So I wanted to find out what (indistinct) drop these people off and these young children and they said to me, ‘Where it's safe at the turning bay’, and there was a big confusion where the turning bay was and the bus that was allocated to that run was an eight point turn on a very narrow country road and it was very hard for me to do that on that bus and they told me to drop him off where it's safe.  Now, I got spoken to, I got sworn at in front of other work colleagues to do the effing job and then I thought this was very unusual so I wrote to HR and told HR everything that was happening with that run.  Three weeks after July I got a verbal warning to basically shut up and just do my job (indistinct) complaint that there's - the driver wasn't dropping the students where the other driver used to drop him off and I tried to get all this sorted out back in July and the branch manager told me due to my intel they've changed the run sheets that I'm getting a verbal warning over this and I thought it was very, very unusual.  So I called HR (indistinct) a verbal warning and had a discussion with her and in August that's when everything started happening like after that with my branch manager.” 26

[44] In relation to this matter, the Applicant received a letter dated 30 July 2018, requiring him to attend a meeting to discuss “allegations of misconduct”. The letter tendered by the Applicant states:

“Breach of the company code of conduct in that on the 25/06/18, 26/07/18 and the 04/07/18 whilst operating on N1216 you failed to diligently follow the run sheet correctly causing children to be disembarked off the bus prior to their required destinations, result in customer complaint.

We have investigated the above allegation, including taking into account the following evidence:

•  Customer complaint.

•  Tims Data base (sic).

•  Run sheet.”

The purpose of this meeting is to provide you with the opportunity to discuss and respond to the allegation in more detail. We will consider your responses and any further evidence you provide during this meeting. If we are able to satisfactorily resolve the matter there may not be3 any need for further action. However, if we are not able to satisfactorily resolve the matter, the outcome may be disciplinary action which could include a warning or termination of employment.” 27

[45] There was no objection to this letter being admitted into evidence. 28 The Applicant also tendered an email he sent on 11 July 2018 to Ms Stephanie Allison, a former employee of the Respondent which is the letter he wrote to HR referred to in his oral evidence (above). While the Respondent was not able to verify that this email was received, it did not object to the Applicant tendering it. 29 The email was in the following terms:

“Thursday 5-7-18

School run 1216 start time 1418

Got to work went to the desk to get my bus and Kevin placed down a Street directory and 1216 run sheet

He asked me a few reasonable questions,

I responded he did not like one of the response’s he said you can do my f##king run and I’ll do your f##king run.

One of the other staff in room said ok settle down to Kevin, then he said to me ok can you do this run Rod?

I said yes i can do it, but it cannot be done the way it is stated on the run sheet. He then read the run sheet and said yes it’s bit confusing

I got back from run 1611 I advised them that I tried to get authorisation via radio to do a reverse? there was no reception tried to call via phone

still no good.

then after all this Russell came out intervened the situation and invite us into his office.

once in the office first thing said was by Russell was what’s happening?

then Kevin replied by saying that Rodney is going off Route. I then responded to Kevin by saying I brought this to your attention over 3 weeks ago!

and also told you before starting this run for first time I actually did this run with no run sheet asked Kevin on this for advice he said ask the students they will tell you where to go.

Friday morning ( next day)

finished 1216 morning shift, I hear unfavourable comments made by Kevin about this run but it was directed at me as they were just about to go out and do a test run on this run 1216.

This made me very annoyed and upset the fact I was treated this was as Kevin is the school run co- ordinater and felt be-littled and bullied in front of my other work colleagues.

I did not go back into work later for my afternoon shift because of this situation.

The run sheet in question 1216 is not accurate the directions are not correct and states u-turns which should be multi-point turns?

also the left and rights are not all correct either.

as i said i did bring this matter up over 3 weeks ago and was advised by Kevin at the time to do whatever turns me on.” 30

[46] At some point in October 2018, there was an issue where it was alleged that the Applicant did not stop the bus at a stop for a passenger to get off. The Applicant states that the passenger “presumably” pressed the bell after the bus had passed the stop and it was not safe, in to stop the bus prior to the next scheduled stop, with the result being the passenger missed the stop.

[47] Admitted into evidence at the hearing, without objection, 31 is another letter, dated 30 October 2018, addressed to the Applicant in relation to this allegation and another allegation about a driving incident. That letter has a heading “[M]eeting to discuss a complaint of inappropriate conduct” and invites the Applicant to a meeting to discuss the complaints. That letter alleges:

“1 At about 2.30pm on 24 October 2018 you failed to stop at a stop sign as you turned from Cane Road onto Tweed Valley Way. The complaint was from the driver of a car that was travelling along Tweed Valley Way. The other driver complained that they had to brake hard and swerve to avoid an incident. It is also noted that in the same situation, a large truck narrowly avoided hitting the bus. Having viewed the CCTV footage, it is my concern that your driving was dangerous, your actions were negligent of your duties as a Bus Driver and you risked the health and safety of all of the people involved; and

2 At about 2.25pm on 25 October 2018 you failed to pull over and allow a 92 year old blind man to get off the bus. The man made a complaint that he had to walk half a mile, to get to where he needed to be. He was concerned that you had opportunity to stop but chose not to. I not that you chose to let off a lady at a non-designated bus stop only moments before this incident.” 32

[48] There is a further document, again admitted without objection, 33 that relates to the second of the allegations in the 30 October 2018 letter. That document is in a similar form to the document dealing with the 28 March 2018 complaints and provides the details of the complaint as:

“Caller complains today 25/10/2018 regarding bus 605 due at 1425 from Brisbane St before Wollumbin St, Murwillumbah (Stop ID 248437). Caller states that he is 92 years old and legally blind and he was using bus service for the past 18 years. Caller states that he usually get down at Federation Dr, Terranora but today this bus driver stopped at the corner of Terranora Public School and caller have to walk half a mile to reach his destination. Caller states that he never came across some indignity with the bus drivers before. Caller request a response from Tweed Head Depot.” 34

[49] After considering the document, the Respondent accepted that it did receive an “Incident Report Form” from the Applicant concerning this incident. 35 This document is a handwritten document that has been completed by the Applicant. It is not dated but is contained in an email dated 9 November 2019, from the Applicant to himself, which appears to be the method the Applicant used to keep copies of work related documentation. The incident report form was tendered into evidence by the Applicant without objection.36 In the section “Details of the incident”, the Applicant has written:

“Company Policy States we are only to Stop at bus Stop however if we get [hailed] down and if it is safe we can stop to pick up or drop off.

Customer did not advise me where to stop if he did not hear it.

At training they drummed into us to only stop as bus stop.

There is no bus stop on Federation Dr.

605 bus doesn’t Enter Federation Dr

This road is on the intersection of Terranora Rd/Federat[cut off]”

[50] There is also a hand-drawn diagram of the streets. The bundle of documents tendered by the Applicant (which were not able to be identified by the Respondent) and were marked as Exhibit A12, includes an email from a Customer Service Officer, to Tweed Operations dated 5 November 2018 at 12:38 pm relating to this incident stating:

“Good afternoon,

I’m investigating this complaint and noticed that the driver has made a statement in his drivers report “company policy states, we are only to stop at bus stops”

Can we please get the driver to provide more information on this or find out where the driver got his information from?” 37

[51] The document also includes the following handwritten notation made by the Applicant: 38

“To Dee Johns

When I did my induction the trainer advise the class to only stop as bus stops

He advised it is a safety reason and company Policy

Trainer also advised we have a duty of care of the passage if we pull over not a designated bus stop and the passenger is injured the driver maybe held liable”

[52] The Applicant states that he handed this document to the Respondent and also attached an “Opportunity for Improvement Form” he had completed stating that it has come to his attention that there is a 92-year-old man that requested to be dropped off and picked up on Federation Drive in Terranora by the 605 bus and that this might be a dangerous location. The Applicant requested verification in writing in relation to this matter.Also related to this incident, is a further document, dated 8 November 2018 provided in support of the Applicant by a disability support worker who the Applicant states was present when the 92-year-old man was on the bus with the Applicant. The document states that the Applicant is always polite and friendly and that on 25 November, there was an elderly man who wanted to get off the bus near Terranora Primary School. The document also states that the bus arrived at the school around 2.45pm, a very busy time with a line of cars waiting in the pick-up zone and children walking home and that there are also “NO STOPPING” signs near the school. The document goes on to state that:

“Rod stopped the bus at the allocated bus stop for Terranora to let the gentleman off the bus. He started yelling and abusing the driver for not stopping near the school, he politely explained to him that there is no bus stop there, and he has a duty of care to his passengers and the school children, as it is dangerous and illegal to stop there.

Rod assisted the gentleman off the bus, in a professional, respectful manner, despite the abuse he received.

Rod is very competent, friendly and safe driver and is an asset to Surfside Buses.

I will happily be a character witness for him if need be…”

[53] The Applicant’s evidence is that he gave this document to Mr Russell Courtney. 39 A further document tendered as part of Exhibit A12 is an email, again sent by the Applicant to himself, dated 13 September 2020 and states:

“Rodney Baxter

A first and final warning was issued to me in October 2018 and in it includes a complaint made by a 92 year old passenger. This letter outlines the events pertaining to this.

The complaint was allegedly made by a 92 year old passenger via phone to management on 25/10/2018. He claimed that I had failed to let said passenger down at a location of his choosing, which he identified as “Federation Drive, Terranora”.

Please note that federation Drive Terranora does not have a bus stop. Please also note that the bus route does not go down federation Drive. The non-designated stop that the passenger requested to be let down is also identified as a dangerous place to stop – by myself and …

Please also note that I was not advised by the passenger as he boarded the bus that he wished to be let down at federation Drive Terranora. Unfortunately, due to the legally blind status of the passenger he was unable to identify that I was a different bus driver to the one he had had previously. That bus driver I now know routinely let this passenger down at the non-designated stop. After passing the non-designated stop – to which I was still unaware was the undesignated stop of the legally blind passenger – said passenger shouted stop! Stop!. At this time I had entered into a busy school bus area. I could not stop immediately, but had to pass the other traffic and stopped at the first safe spot I was able. The passenger then stepped off the bus. By this stage it was 300 metres passed his unsafe non-designated stop.

I understand that video surveillance from within the bus was viewed. Unfortunately this footage does not allow the viewer to see to the left outside the bus. Hence, it did not show that the non-designated stop did not have a bus stop and was a dangerous place to stop. I believe that the incident of that day were an unfortunate series of events that were born out of the passenger not knowing that I was a different bus driver. His sight prevented him noting this; and secondly the passenger having no identifiable visual cue (such as a walking stick for the blind) that he was legally blind.

I request a full investigation be conducted regarding this event.

In the meeting that was held about this incident the full video footage was not shown to me and also they mentioned a female that I dropped off where I dropped the female off there is two designated bus stops on before Bilambil Road and one just after Bilambil Road I would’ve stopped at either one of them because the video footage wasn’t shown to me, I couldn’t see which one but I stopped at One of them and also the female has identified herself to me in the past that she has a slight disability, and I’ve also noticed that she is a regular customer on the bus.”

[54] The Applicant maintained that this email was given to the Respondent but gives no evidence as to when or how it was delivered or who it was given to. 40 A further email, also dated 9 November 2018, was tendered into evidence without objection.41 It is an email from a another bus passenger to Surfside buses. It states:

“I am writing in regard to news of issues with local bus drivers and their pickup and drop off points for passengers. I have been a regular user of tweed bus services for the past four years and in this time I have been, for the most part, very happy with the drivers and the service provided.

I have lived in different areas of tweed over the years and have used many of the different buses, mainly the 608 & 607 lines. I have used the buses extensively and know all the local drivers fairly well. Most of them know exactly where I get off the bus for work and the street that I live in. Although drivers have always made it clear that they are supposed to drop off and pick up passengers at designated bus stops, I was also told when first moving down to the tweed region (from qld) that they are allowed to drop passengers off closer to their home etc if it is along the bus route and if it is a safe place to so. As I have learnt over time, some drivers tend to stick to the “rule” of dropping off at designated stops only, while others are a little more helpful to passengers and drop them closer to their actual destinations when it is possible.

I would like to make particular mention of two drivers, Rodney and Steve, who are always friendly and helpful, no matter what kind of day they’ve had, and who always go above and beyond to provide exceptional service to all passengers. I am always happy to walk home from the bus stop as I know this is the designated place for the drivers to stop, but it’s been very nice of some drivers to drop me closer to my street when I’ve asked at time due to bad weather or having a lot of stuff to carry. In particular, after asking Rodney only one time to drop me closer to my street one night (as I had a lot of groceries to carry) he has always remembered my street ever since then and dropped me off closer to it whenever conditions permit.”

[55] There is a further document, again tendered by the Applicant and admitted without objection, 42 that relates to the first of the allegations in the 30 October 2018 letter. That document is in a similar form to the document relating to the 28 March and 29 October complaints. The details of this complaint are:

“Caller complained about the rash and dangerous driving of the bus driver of bus route number –605, leaving from Murwillumbah and going towards Tweed Heads, at a point on Cane Road, turning left onto Tweed Valley Way, at Condong, near the Condong Sugar Mill, at about 1430 hrs on 24/10/2018. Caller states that the bus was supposed to wait for traffic to clear before turning left onto Tweed Valley way, when caller states that the bus driver turned dangerously onto Tweed Valley way without stopping, and on turning realised that there was traffic headed his way Caller states that at this point the bus driver turned into a gutter area, just allowed a truck which was in front of callers (sic) car to pass, and without waiting for the overtaking lane swerved right in front of callers (sic) care. Caller had to brake hard and swerve hard to avoid a collision with the bus. Caller states that the bus drivers (sic) turn was extremely dangerous, and caller would like to know the action taken against this bus driver when she receives call.” 43

[56] The Applicant responded to this issue by completing an incident report form stating: “Sorry I cannot recall this”. 44 Also tendered as part of Exhibit A12, is another ‘Opportunity for Improvement Form’, dated 16 November 2018. This form is also handwritten. Mr Baxter’s evidence about who completed the form is unclear but I assume that he caused it to be completed as his evidence is that it relates to the 30 October complaint.45 This document states the issue as:

“NTH BOUND L/H TURN OUT OF CONDONG ONTO TWEED VALLEY (80 KLM ZONE) IS DANGEROUS AS TAKES 7 SECONDS FOR NTH BOUND CARS TO REACH INTERSECTION FROM BLIND CURVE AT 80KLM”

[57] The document goes on to record the cause of the issue as:

“NOT ALLOWING BUS TO EXIT STOP SIGN AND REACH SPEED WITHOUT CAUSING POSSIBLE INCIDENT/ACCIDENT”

[58] The improvement proposed in the notice was:

“MAKE CONDONG ACCESS NTH BOUND ENTRY ONLY (TRAVELLING NTH + STH BOUND) ALLOWING USE OF NTH BOUND SLIP ROAD PLEASE SEE MAP AND AVOID DANGEROUS INTERSECTION”

[59] In May 2019, the Applicant states that he was “written up, reprimanded, and suspended from duty” for stopping the bus so he could take a short toilet break. According to the Applicant, the Respondent’s driver handbook does not contain clear instructions about toilet breaks. The Applicant states that he was informed in training that if a toilet break was urgently required a driver could stop the bus and use a public toilet facility. The Applicant states that this allegation was put to him in a document containing 6 allegations which he maintains were “completely false”. Mr Baxter does not say what those other allegations were or why he says they were false. A letter dated 10 June 2019 requesting the Applicant to attend a meeting to discuss six allegations was tendered by Mr Thompson and is considered below. 46 The allegations in that letter were that the Applicant: stopped the bus at an unscheduled stop; left the bus with six passengers including children on board; turned off the lights on the bus leaving it in darkness; did not ring Control before any of these actions; called someone on his mobile phone while off the bus; and when back on the bus encouraged a passenger to make a complaint about the bus headlights.

[60] The Applicant accepted that he was referring to the six allegations in the letter dated 10 June 2019, but states that he was on light duties at the time and did not receive the letter until 17 July when he was informed by a controller named “Warren” that it was a “love letter from work”. 47 Under cross-examination the Applicant accepted that he did leave a bus with passengers on it and that the lights on the bus turned off.48 The Applicant also accepted that he did not contact control to say that he would be stopping the bus but maintained that he had attempted to do so.49 The Applicant also maintained that the Respondent’s policies or “rulings” did not require him to contact control to advise of an unscheduled stop to use the toilet, stating in his evidence as follows:

“Right?---And under no guideline or ruling is it - you have to call out a toilet break.  They were training us so if you have to go to the toilet, explain to the passengers, that's the first thing I did.  If I shut the bus off I would shut the bus off first.  I'm pretty sure I explained to the passengers that I had to go to the toilet, I had to turn off the bus which would shut down the lights.  It did.  I went to the toilet and when I got back the old gentleman when I turned - powered the bus up, the lights on the bus weren't the best - they were - the one on the left wasn't even lighting the road up and you couldn't even see what was out to the right and the gentleman said to me, "You should put a complaint in for that", and I cut him off and I said, "If you want to make a complaint just call Surfside", and that's what you have been told to do in our training.  Do not to talk to them about the mechanics of the bus, tell them to call the service line and I used the word, "If" and that's why they withdrew all that letter and (indistinct) - - -

So when you before - you said that you didn't encourage a passenger to make a complaint, you said before that he didn't - sorry, you didn't do so but just now you're saying you actually did?---I didn't.  I said, "If you want to put a complaint in, call Surfside."  He was coming to me.  Surfside has told me, we're told in the classroom "If someone wants to talk about mechanical compliance don't carry on, we don't want the public knowing that you're having problems with our bus so just tell them to call Surfside", and that's what I did.  I said, "If you want to put a complaint in just call Surfside."  And I cut him short and I cut - we changed the subject.

And I also note that in the events that led to the situation that the several emergency exit hammers were missing from the bus, it was effectively stolen?---Yes, that's what - that's - - -

So whilst you were off the bus that people on board stole the emergency exit hammers?---Yeah, it was the young - two 18-year-olds that broke the light.

And to put it in total you are confused as to why the company would raise this with you as some sort of conduct concern, that you believe it wasn't appropriate for the company to raise this with you?---Well, it wasn't appropriate because I brought it to the company's attention that the hammers were missing off the bus when I did the final checks that night and Lou Charelle wrote me an email saying it's highly unlikely when you stop you go to the toilet this time and I'm suspended from work and I've never been suspended from work my entire life and I was suspended for a few days and I went into the meeting and then that's when the union appeared with me and they got this letter withdrawn.  You guys went through all this letter because the union said all the allegations were all false.” 50

[61] After returning from this suspension, the Applicant suffered a distressing incident during which he soiled himself in a bus, in front of passengers and states that this incident occurred because he was too afraid to take a toilet break for fear of being disciplined. The Applicant states that this was extremely embarrassing and humiliating for him particularly when gossip about this incident spread around the workplace and other employees asked him about the incident and made jokes about it. In oral evidence, the Applicant agreed, albeit after a leading question by his representative, that following this incident he started to be the subject of bullying from management and other drivers. 51

[62] Sometime after this the Applicant attended mediation with “the manager” and was told to call out if he needed a toilet break. The Applicant states that no other driver was subject to this requirement and he found it embarrassing and humiliating to do so over the two-way radio. The Applicant also states that this impacted him psychologically and that this was so severe that he had to take leave and applied for workers’ compensation with such claim being accepted.

[63] However, the Applicant’s evidence about this matter was confusing. In his witness statement the Applicant said that:

“On 10 June 2020, I attended my General Practitioner … and was diagnosed as suffering from anxiety and depression and severe stress, as a result of which I was unable to work and entered on sick leave.

On 25 June 2020 the workers’ compensation claim … was accepted.”

[64] After questioning from me the Applicant said that the dates in his statement were incorrect and the illness and compensation claim occurred in 2019. I also note that in oral submissions the Applicant’s representative said that the workers’ compensation claim was made in October 2019. 52 The Applicant provided no evidence about any interaction he had with the Respondent between June 2019 when his absence from work commenced and 30 July 2020, when he attended a meeting with Mr Thompson and Mr Harris to discuss his ongoing employment.

[65] The Applicant said in his witness statement that the written record of this meeting tendered by Mr Thompson was not accurate and bore no resemblance to what actually happened at the meeting. During the Applicant’s oral evidence, he revealed that he made a digital recording of the meeting and after informing Mr Thompson that he was recording the meeting turned the recording device off at Mr Thompson’s request. The Applicant’s transcript of that meeting, and the recording were tendered into evidence at the hearing. 53 The Applicant’s transcript of the discussion (including a note inserted by his legal representative) is as follows:

“TRANSCRIPT OF MEETING HELD AT SURFSIDE

Rodney: Where am I going?

Paul: You take a seat over there. That’s a…

Rodney: The big seat?

Paul: Yeah. The big seat. And we’ll wander over this side (inaudible) so we’ll at least pretend that we’re social distancing (laugh). How’s your day been? All right?

Rodney: Not too bad. I went and seen my psychiatrist today.

Paul: Yeah. OK.

Mathew: So they’re happy for you to come? What was their….

Rodney: No. She did not want me to come.

Paul: Yeah.

Mathew: Why are you here?

Rodney: My solicitor said to come.

Paul: OK ‘cause if it’s almost at that point..if..if..If your doctor is saying you shouldn’t be here.

Rodney: That’s my psychologist. My Dr/GP doesn’t know about what….

I haven’t had the opportunity. I’m seeing her next week. But I know she would say if I feel like I should come, I should come..

Paul: Yes. OK.

Rodney: But my psychiatrist did not want me to come. Then I told her that my solicitor advised me to come. Just take notes. They told me to bring the union but I’ve had enough of the T.W.U Union

Paul: Ah mate,  (inaudible) I say this (inaudible). Ah this. I have learned from…Just from this.

Mathew: Sorry Rodney. Matt. Obviously we spoke on the phone.

Rodney: Yeah mate. Man with the nice voice.

Mathew: Yeah Mate. We haven’t actually met mate. Yes, nice to finally meet you anyway.

Rodney: I got to let you guys know that I’m recording this.

Paul: Yep. OK.

Rodney: As well, because my solicitor wants me to take notes .

Paul: Yeah.

Rodney: I… my literature isn’t the best. So, I can’t really take notes.

Paul: Can I take notes for you? It is a general rule right across the company we don’t.

Rodney: It’s for my safety.

Paul: No, no can I say, we don’t. It’s just a rule. We’re in NSW. There has to be an agreement for it to happen. Queensland. Different story.

Rodney: No. Queensland they have to agree.

Paul: No no it’s the other way around but can I say I am happy to take notes for you. You know I’ll get a piece of paper, a pen and note.

But otherwise Rod, we’re not going to have a meeting.

Rodney: I can’t answer any questions then.

Paul: Yeah, that’s fine, you don’t have to answer questions. Uh we’re, I’m not comfortable with you recording.

Rodney: OK.

Paul: Just as a company rule. We’re not allowed. We allow people to take notes but we provide a pen and paper but not recording. I’m sorry.

You’ll have to turn off your phone.

Rodney: We are going to postpone this meeting then so I can get legal representation to come in.

Paul: err, when is that going to happen?

Rodney: My solicitor has a very busy schedule, so very busy.

Paul: We asked you in the letter…

Rodney: Yeah.

Paul: to provide us with something from your doctor saying..

are you going to switch your phone off?

[I am instructed that the Applicant did at this point cease the recording, as requested. The balance of the transcript derives from the Applicant’s memory, as transcribed shortly afterwards.]

Paul: when is your next appointment with your doctor then

Rodney: I have one I think late next week

Paul: see can we contact your doctor and see if we can make it sooner

Rodney: no

Paul: why not I just want to get you in there to see her earlier

Rodney: look I am pretty sure that I have appointment late next week she is very busy and sometimes it takes two weeks to get into see her either rather you guys not contact her.

Paul: we were outside talking to Lenny you understood why we had to let him go.

Rodney: no I don’t

Paul: look we have a contract for you to drive the bus I’ll put it this way if you got a contract to buy a tractor and the tractor did not arrive the the contract would be in void therefore we have a contract for you to drive you’re not driving for us so

Rodney: so I’m being quoted as a tractor” 54

[66] The Applicant states that in the first week of August 2020 “staff” of Surfside asked his general practitioner to alter her assessment of his medical fitness and that his general practitioner refused to do so. On 11 August 2020, the Applicant received a letter from the Respondent dismissing him from his employment. The letter stated that the reason for dismissal was “medical incapacity” and that the dismissal would take effect on 6 September 2020.

[67] In cross-examination the Applicant was taken to a “Certificate of capacity/certificate of fitness”, completed by his treating medical practitioner on 24 July 2020 and signed by the Applicant on that date. The certificate was tendered by Mr Thompson. 55 The medical practitioner completing the certificate has indicated a diagnosis of anxiety and depression, with the stated date of injury being 10 June 2019. In response to the question “How is the injury related to work or the motor vehicle accident?”, the medical practitioner states:

“1) inaccurate complaints being made by the company causing undue stress – leading to anxiety, headaches, poor sleep

2) not wanting stop at kingcliff due to previous incident to use the toilet last night (13/6/19) and had an embarrassing accident regarding his bowels in front of a passenger. Passenger was made aware. This has caused extreme stress and anxiety regarding returning to work

3) overtime not been fully paid for has also caused further stress” 56 (errors in original)

[68] The certificate does not identify any pre-existing factors that have led to the injury. Under the heading “Capacity for activities”, the medical practitioner has included the following comments:

“BUT NOT PRE INJURY ROLE

If he tries working less hours a day instead of full time, then he might not get the job he would like to do.

Hence he would like to try full time hours and get into the job that would like to do.” 57

[69] And further, under “Capacity for work”, it is indicated that the Applicant has capacity for work at full time hours, but:

“UNABLE TO RETURN TO THE PRE-INJURY ROLE AT SURFSIDE AND NEW EMPLOYER SERVICES ARE RECOMMENDED” 58

[70] Under cross-examination, Mr Baxter agreed that this certificate was the state of the medical evidence at the time he met with the Respondent’s managers on 30 July 2020. It was also put to the Applicant that the medical certificate states that he was unable to work for the Respondent and the Applicant’s response was that this was because the Respondent tried to contact the doctor and she did not want to speak to its managers. In response to the proposition that he had approached the doctor and the doctor had been unwilling to change the medical certificate, the Applicant maintained that this was because the doctor had been approached by the Respondent.

[71] In response to a question as to what other option was open to the Respondent given the opinion in the medical certificate to the effect that the Applicant could not return to his pre-injury role, the Applicant maintained that the doctor meant to say that he could not return “at this time. 59 The Applicant subsequently appeared to accept that he was not able to comment on why his doctor made the comments that she did on the certificate.60 The Applicant did not agree that at the meeting on 30 July 2020 he was given an opportunity to go to his doctor and obtain a revised medical certificate and maintained that the Respondent’s version of the meeting was “only lies” and “completely false”.

[72] Despite initially disagreeing, 61 Mr Baxter ultimately agreed, that earlier in his employment he was converted from a casual employee to a permanent’ employee, first, as a part-time employee and then on a full-time basis.62 Mr Baxter responded to this by explaining his view that he was taken off the casual school run and given a permanent position because he was a “whinger”63 and because they didn’t want him to make a workers’ compensation claim.64

The Respondent

[73] Mr Thompson is the Depot Manager of Surfside’s Tweed depot. Mr Thompson reports to the Executive General Manager for Queensland. Mr Thompson has been employed by Surfside since June 2017, being appointed to the position of Depot Manager in November 2019. As Depot Manager, Mr Thompson has operational oversight for the depot and has the authority to hire and dismiss employees. Mr Thompson’s evidence is that he was not the Depot Manager during the period of time leading up to the Applicant’s workers’ compensation claim, made about June 2019 but was the decision maker when the Applicant’s employment was terminated.

[74] The Respondent provides urban service, public transport services across the Gold Coast and Northern NSW river regions. It performs these services under contracts with the relevant Queensland and NSW bodies. There are 251 Surfside employees based at the Tweed depot.

[75] In Mr Thompson’s view, there is no disagreement between the parties that the Applicant’s employment ended because of his medical incapacity. However, Mr Thompson considers that the remainder of the Applicant’s statement is otherwise full of “mis-perceptions and assumptions”. In his witness statement Mr Thompson specifically refers to some of those matters as follows:

“a. It is common practice for our Company to thoroughly investigate complaints of misconduct. This is not unique to Mr Baxter;

b. It is our expectation that Drivers would stop when a passenger requests it. The service in Northern NSW is a ‘hail and ride’ service meaning that passengers are picked up and dropped off at any location of their choosing. This was explained to Mr Baxter as part of his training. Further, the passenger was an elderly man who was almost blind. We had regularly dropped him off at that location in the past and I can understand why he was upset that he was made to walk further;

[110] The Applicant accepts that, as at the date of the final medical certificate, being 24 July 2019, 88 and as at the time of hearing in this matter, he remained medically unfit to return to work.89 However, it was also submitted that regard should be had to the Applicant’s difficulties in reading and writing and that an inference to be drawn from his evidence about the opinion of his medical practitioner is that she said to him that he should not return to the Respondent’s employment “at this time” was a reference to her opinion that the Applicant should not return until the Respondent’s attitude to him changed rather than to his prognosis.

[111] The Applicant submitted that leading cases have framed the analysis of the word “because” in s. 340 of the FW Act in terms of what was in the mind of the decision maker, and that it has been affirmed that if the evidence of the decision maker is accepted, and does not include acting for an impermissible reason, the applicant in a general protections case cannot succeed. The Applicant also submitted that the present case is different on the basis that the Respondent’s Depot Manager Mr Thompson gave evidence that he decided to dismiss the Applicant because of his indefinite unfitness to carry out the inherent requirements of his job. The principal thrust of the Applicant’s case is that he suffered this unfitness for the sole reason that he was denied rehabilitation which the Respondent was statutorily obliged to provide and that the Respondent denied this right to the Applicant for an impermissible reason that he exercised workplace rights by making complaints about safety matters and making a workers compensation claim.

[112] In support of this submission, the Applicant relies on Mr Thompson’s evidence as set out in his witness statement at paragraph 30, that the Applicant “chose” to make a workers’ compensation claim before a final determination in relation to misconduct could be made and submits that even if the word “chose” not been used, the meaning and intention of Mr Thompson’s statement is quite clear: the Applicant knew he was likely to be dismissed, and took a pre-emptive step, filing a workers’ compensation claim, to prevent this happening. It is submitted that the use of the word is not accidental and that it clearly illuminates the operative reason; and that its clear implication is that the Applicant knew he had done wrong; knew he had no legitimate defense to the complaints; and believed that his only defense was to shield himself by making a workers’ compensation claim, and thus hopefully engage statutory protections against the dismissal of employees on workers compensation. It is also clear that Mr Thompson believed that, absent a good reason, the Applicant should have been dismissed. It is further contended that this statement evidences that:

“The Respondent’s officers having taken a dislike to the Applicant and having been hopeful of getting rid of him by dismissing him on the basis of his alleged misconduct, perceived themselves as having been thwarted in that intention by his filing of a workers compensation claim (whether or not it was true, in a legal sense that the claim might have formed some barrier to his dismissal); and thus decided to leave the Applicant, as it were, to wither on the vine:to drift into irremediable psychological illness. And that, it is submitted, is exactly what they did.”

[113] Notwithstanding Mr Thompson’s evidence that he did not become Depot Manager until the Applicant was on sick leave and that he had no reason not to take the Applicant’s medical certificate at face value, it is submitted that his evidence that the Applicant “chose” to make a workers’ compensation claim speaks eloquently to the operative and impermissible reasons for dismissal. The Applicant also submitted that the failure of the Respondent to comply with its obligations to the Applicant under s. 45 of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) is adverse action taken against the Applicant under at least one and arguably all, of the paragraphs (b) and (d) inclusive of line 1 in the table in s. 342 of the FW Act.

[114] In relation to the application having been made under s. 365 of the FW Act, the Applicant submits that the real damage suffered by the Applicant was the loss of his job and that had he made an application under s. 372 for the Commission to deal with a non-dismissal dispute this would have been attacked as a device to avoid scrutiny of the medical certificate on which primary reliance was placed by the Respondent in attempting to justify the dismissal. There is a clear causal link between the two kinds of adverse action, and that dismissal followed inexorably from the failure to rehabilitate.

[115] Further, it was submitted that both forms of adverse action were taken against the Applicant because he had exercised a workplace right. It was also submitted that there is no mandate, either as a matter of statutory construction or in the authorities, for the evasion of liability by the Respondent because it took two different kinds of adverse action against the Applicant.

[116] The Applicant sought damages in the amount of $70,000.00 and acknowledged that any damages awarded may be subject to the provisions of s. 9AC of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW).

The Respondent’s submissions

[117] The Respondent submitted that the Applicant’s employment was terminated because of his medical incapacity to perform the inherent requirements of his role. The Applicant had been absent from work since about 10 June 2019 until his dismissal on 6 September 2020. In its initial outline of submissions the Respondent submitted that the Applicant had alleged that he was dismissed for exercising a workplace right and no allegation was made that the Respondent’s actions were in breach of any other general protections apart from s. 340; unfair dismissal provisions; s. 352 or Regulation 3.10; or s. 248 of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW).

[118] The Respondent disputes that adverse action was taken and, in the alternative, contends that such action was not as a result of the Applicant having or exercising a workplace right. According to the Respondent, all evidence points to the Applicant’s employment having been terminated because he was medically incapable of performing his duties for the employer and not for any other reason. The Respondent also submits that the Applicant’s reliance on an assumption that the acceptance of his workers’ compensation claim means that he was bullied at work, is erroneous and that any flaws in the procedures it followed in dismissing the Applicant are not relevant to whether he was dismissed for exercising a workplace right.

[119] In closing submissions, the Respondent accepted that the Applicant exercised various workplace rights including making complaints about overtime and other matters and making a claim for workers’ compensation but maintained that the reason for his dismissal was his incapacity to perform the requirements of his role and/or frustration of his employment contract. The Respondent also traced what it termed the “rollercoaster” of the Applicant’s Form F8 Application and submissions. In particular, the Respondent asserted that the Applicant had completely changed his argument in his closing submissions.

[120] In relation to the Applicant’s assertion that he was denied rehabilitation, the Respondent submits that it did not respond because it was not given a reasonable opportunity to do so. Further, the Respondent asserts that the Applicant’s argument is doomed to fail as rehabilitation of persons on workers compensation is the activity of the Respondent’s insurer, and that if the Applicant has concerns about this, he should take it up with the insurer, not the Respondent which has no power in this regard.

CONSIDERATION IN RELATION TO LIABILITY

The scope of the dispute

[121] Before considering the factual matters, I am required to determine, it is necessary to say something about the entirely unsatisfactory manner in which the Applicant’s case was pleaded and advanced at the hearing. In my view the deficiencies in the pleading of the case creates an issue as to whether I can arbitrate the dispute as pleaded. This is because the case as ultimately advanced is that the adverse action involves both dismissal and one of the other forms of adverse action in item 1 of s. 342: injury in employment; prejudicial alteration of employee’s position; or discrimination.

[122] As a general proposition, I accept that there is authority for taking a broad view of the term “dispute involving dismissal” in s.365 of the FW Act. That authority is in the context of the nexus between an application under s. 365 for the Commission to deal with a dispute and a general protections court application under s. 371 of the FW Act.

[123] In Shea v TruEnergy Services Pty Ltd (No 1) 90 Justice Dodds-Streeton held that a general protections court application may include claims not the subject of the initial application to the Commission on the basis that the additional claims were “in relation to” the original dispute. In that case, the Applicant asserted that she had made complaints to her employer which constituted the exercise of a workplace right and included references in her general protections court application that were not included in her application to the Commission under s. 365 of the FW Act. His Honour observed that “the dispute” referred to in s.365 is not defined elsewhere in the legislation and is simply assumed to co-exist with a person’s dismissal allegedly in contravention of Part 3-1 and that Section 365 identifies “the dispute” at a high level of generality by reference to the occurrence of a person’s dismissal allegedly in contravention of Part 3-1. His Honour further observed that s. 365 does not expressly or implicitly provide that the dispute precisely corresponds with the application to the Commission, but rather permits the application to be made to the Tribunal to deal with the dispute. In practice, the dispute identified in the general terms is likely to be further elaborated on or described not only in the application to Commission but also in the respondent’s response (if any) and the conference conducted by the Commission to deal with the dispute.

[124] Notwithstanding these observations, the present case does not concern a general protections court application but rather, an application for the Commission to deal with a dispute, in relation to which the parties have consented to arbitration. It is also the case that the Applicant is not seeking to simply add additional actions that are alleged to have been undertaken by the Respondent in support of the same contraventions but is instead seeking to add an additional form of adverse action to the dispute and seeks arbitration in respect of that action. Further, the form of adverse action that the Applicant seeks to add to the dispute does not involve dismissal. In this regard the Applicant does not assert that the failure to implement an injury management plan constituted dismissal in the sense of termination of employment at the initiative of the Respondent.

[125] I have determined that the Applicant should not be permitted to advance his case based on the assertion that the Respondent took adverse action against the Applicant by failing to comply with alleged obligations under s. 45 of the WC Act in relation to the implementation of an injury management plan in relation to his injury, for the following reasons.

[126] First, it is my view that the Commission does not have jurisdiction to arbitrate the dispute insofar as it relates to that assertion. The dispute is brought under s. 365 of the FW Act which applies to disputes involving dismissal. If in addition to dismissing the Applicant, the Respondent took adverse action by failing to implement an injury management plan while the Applicant was employed, such action does not involve the dismissal of the Applicant. Rather any failure on the part of the Respondent to manage the Applicant’s injury can only constitute adverse action involving injury to the Applicant in his employment or prejudicial alteration of his position, thereby exposing him to dismissal. Both matters do not involve dismissal and are properly matters that could have been advanced by the Applicant under s. 372 of the FW Act.

[127] The Applicant could have made an application under s. 365 asserting that the relevant adverse action was dismissal and a separate application under s. 372 asserting that the alleged failure to implement an injury management plan was adverse action on the basis that it injured him employment or altered his position to his prejudice. Alternatively, the Applicant could have made an unfair dismissal application alleging that his dismissal was harsh, unjust or unreasonable. Presumably the Applicant was advised to make a general protections application because of perceived advantage associated with the presumption in s. 361 or because of the higher amount of compensation or damages that could be awarded if such an application succeeded. Having made such an election, in order to succeed with a general protections application, the Applicant is required to bring his application within the legislative framework of the general protections regime.

[128] Second, if a single application can be made under s. 365 of the FW Act in relation to a dispute involving dismissal and a non-dismissal dispute (which I do not necessarily accept is possible) that is not what the Form F8 Application filed in the present case purported to do. The Form F8 filed by the Applicant makes no reference to any form of adverse action other than dismissal. The Form F8 application also asserts that the Applicant was dismissed because he exercised workplace rights by complaining about bullying and making a workers’ compensation claim and that he was protected from adverse action being taken against him by virtue of s. 352. That section also deals with dismissal and provides that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury. The Form F8 Application specifically refers to the Applicant’s dismissal and not to any other form of adverse action.

[129] Section 369 of the FW Act, provides that the Commission can deal with a dismissal dispute by arbitration if the parties notify the Commission that they have agreed to the Commission “arbitrating the dispute”. There is no corresponding provision with respect to a non-dismissal dispute under s. 372 of the FW Act. It is arguable that the Commission is not empowered to arbitrate a non-dismissal dispute although in the present case it is not necessary to determine this point. This is because the Form F8B recording the agreement of parties to the Commission arbitrating is an agreement with respect to “the dispute”. In my view, the dispute for the purposes of arbitration is the dispute as set out in the Form F8. That dispute states that the issue for arbitration is whether the Respondent took adverse action against the Applicant by dismissing him because he exercised a workplace right or in contravention of s. 352 of the FW Act – temporary absence due to illness or injury.

[130] Assuming (without accepting) that an application made under s. 365 of the FW Act can theoretically encompass a form of alleged adverse action that does not involve dismissal, “the dispute” the parties in the present matter have agreed to the Commission arbitrating, does not include adverse action involving failure to implement an injury management plan. Accordingly, the Commission is not empowered to arbitrate the dispute in relation to this claim.

[131] Fifth, the alleged contravention involving the failure to implement an injury management plan was not clearly articulated until closing submissions, after the Respondent had closed its evidentiary case. Adding to the difficulty, closing submissions were heard several weeks after the conclusion of the evidence, due to delays occasioned by the manner in which the Applicant’s case was conducted. I am also of the view that to allow the Applicant’s case to be significantly amended in the manner sought, would deny the Respondent procedural fairness. I note that the Applicant was legally represented and that his representative was given an opportunity to seek an adjournment to plead his case with more precision and to file additional evidence and declined that opportunity.

[132] I also note that the Respondent was not legally represented. While there were some oblique references to the WC Act in the Form F8 and some references in the course of the evidence to injury management obligations, this was not asserted to be adverse action until the Applicant’s closing submissions. Accordingly, I do not accept that the Respondent had any real opportunity to call evidence to rebut the assertion should it have wished to do so. While the Applicant calls in aid the requirement in s. 578(b) of the FW Act that in performing its functions the Commission take into account equity, good conscience and the merits of the matter, the same requirement necessitates that the Respondent have a proper opportunity to defend serious allegations. In my view the merits of this argument are not so strong as to overcome the unfairness to the Respondent if the Applicant’s additional claim of adverse action is considered in the absence of an opportunity for the Respondent to have answered it.

[133] Finally, if I am wrong in relation to the jurisdictional and other issues, I am not satisfied that the Applicant has established that any failure by the Respondent to implement an injury management plan under s. 45 of the WC Act, is adverse action taken by the Respondent against the Applicant. The Applicant provided no evidence to establish any objective background facts to support the assertion that the Respondent had such an obligation much less that the Respondent failed to meet any obligation. Just as an applicant cannot simply allege that action was taken for a particular reason without establishing the factual circumstances said to have been the reason, it cannot simply be asserted that an action was adverse action, without establishing that the action was taken. The Applicant in the present case did not provide any evidence to support the assertion that an injury management plan was not implemented. Rather, the assertion was made in a final submission, without any evidentiary basis other than the Applicant was absent from work for over 12 months.

[134] Further, an examination of s. 45 of the WC Act makes clear that the Respondent had no such obligation. Rather, s. 45 of the WC Act imposes the obligation to establish an injury management plan on an insurer who is or may be liable to pay compensation to an injured worker. The obligations on an employer are found in s. 46 and are limited to the employer being required to participate and co-operate in the establishment of such a plan.

[135] I accept that consistent with the definition in s. 12 of the FW Act “action” can include an omission, and that this definition applies to adverse action. However, the Applicant did not assert a failure on the part of the Respondent to co-operate. Rather, the Applicant asserted that the Respondent had a positive duty to establish an injury management plan and that this failure constituted adverse action. The Respondent submitted that it has an insurance provider with responsibility under s. 45 of the WC Act. I do not accept that an employer can engage in adverse action by failing to comply with a legislative provision that has no application to the employer.

[136] For these reasons, the Respondent has nothing to answer in relation to the allegation that it took adverse action against the Applicant by failing to establish an injury management plan for the Applicant.

[137] I turn now to consider each of the factual questions posited by the Full Bench in Keep, on the basis of the facts in the present case established by the evidence.

Was the Applicant exercising a workplace right within the meaning in s. 341?

[138] I am satisfied and find that the Applicant exercised a workplace right by complaining to managers of the Respondent about work related matters including bus routes and non-payment of overtime. I am also satisfied that the Applicant made a claim for workers’ compensation and in doing so exercised a workplace right.

Was the Applicant temporarily absent from work because of illness or injury?

[139] The Applicant did not press the argument that s. 352 of the FW Act was engaged, despite the Applicant’s absence not being a temporary absence due to illness or injury as defined in the Regulations. This argument is without merit in any event given that there is no exclusion from the operation of the definition of temporary absence in the FW Regulations on the basis of failure by an employer to take some step which would have rendered the absence temporary if the employer had taken that step. The Applicant was absent for a period of some 14 months and was not temporarily absent due to illness or injury for the purposes of s. 352 of the FW Act.

Did the Respondent take adverse action against the Applicant?

[140] I accept that by dismissing the Applicant the Respondent took adverse action against him. Accordingly, the Applicant has established that he exercised a workplace right and that adverse action was taken against him and by virtue of s. 361 of the FW Act, the onus shifts to the Respondent to establish that the action was not taken because the Applicant exercised a workplace right.

Why was the adverse action taken?

[141] At the outset, I do not accept the submission advanced on behalf of the Applicant that acceptance of his workers’ compensation establishes that the Applicant was bullied. There is no evidence before me about the Applicant’s workers’ compensation claim other than he suffered a psychological injury which was accepted as compensable and that the Respondent did not dispute the claim within the required period requiring that its insurer accept the claim. The injury suffered by the Applicant has been compensated and I am concerned only with the question of whether the Applicant was dismissed because he complained about bullying or made a claim for workers’ compensation. For the purposes of determining these questions it is not necessary that I consider whether the Applicant was bullied. It is also not necessary for me to consider whether the Applicant’s dismissal was unfair, although the manner in which the dismissal was effected may be relevant to considering whether the Applicant was dismissed because of the complaints or the workers’ compensation claim.

[142] Mr Thompson’ evidence was that the Applicant was dismissed because he was unable to fulfil the inherent requirements of his role as a bus driver. Mr Thompson was not challenged in cross-examination in relation to this evidence and I accept it. At the time the decision to dismiss the Applicant was made, he had been absent on workers compensation for a period of over 14 months. The Applicant’s treating medical practitioner had certified that the Applicant could not return to his pre-injury role and recommended new employer services.

[143] I do not accept the Applicant’s evidence that the intention of the medical practitioner was to certify that his incapacity was limited to the time the certificate was provided. Nor do I accept that the certificate was motivated in some way by the Respondent attempting to exert pressure on the medical practitioner to alter the certificate. The certificate speaks for itself and if the Applicant wanted to establish that the certificate was limited in the way he asserted or that it was the result of some pressure being exerted by the Respondent, the medical practitioner who issued the certificate should have been called to give evidence.

[144] I accept that the Respondent has met its onus of establishing that the dismissal of the Applicant was not because he exercised workplace rights by complaining about work related matters or making a claim for workers’ compensation. I also accept that the Respondent has established that these matters are excluded entirely as reasons for the Applicant’s dismissal. In short, I am satisfied that the sole reason for the Applicant’s dismissal was because he was unable to perform the inherent requirements of his role as a bus driver and his incapacity was permanent.

[145] My reasons for these conclusions are as follows. The Applicant’s own evidence that the status of his employment was changed from casual to permanent because he was a “whinger” is inconsistent with the Respondent having taken adverse action against him because he made complaints.

[146] The evidence of Mr Thompson establishes that at the time the Applicant commenced his absence on workers’ compensation leave, he had made complaints about matters including bus routes and overtime payments. There is also evidence of attempts by the Respondent to address the matters raised by the Applicant including the Applicant’s evidence of having participated in mediation with his manager.

[147] Further, Mr Thompson’s evidence establishes that there were issues with the Applicant’s conduct and work performance based on complaints from customers of the Respondent. In my view when the nature of those complaints is considered it was entirely reasonable for the Respondent to have investigated them. I also accept Mr Thompson’s evidence that it is usual for the Respondent to investigate such complaints and that the Applicant was treated in the same way as any other employee in this respect. For an employer to investigate serious complaints about an employee involving unsafe driving and matters concerning leaving children at incorrect stops and taking them to a fast-food outlet, is entirely reasonable. It is also clear that these complaints were made by members of the public with no apparent interest other than in having the complaints dealt with. While the Applicant gave evidence refuting some of the complaints, he did not refute others.

[148] I am satisfied that all of the issues raised with the Applicant’s conduct and work performance were matters that it was reasonable for the Respondent to raise and that there was nothing unreasonable about the Applicant receiving warnings about the matters that the Respondent believed were justified. The evidence of Mr Thompson establishes that where complaints or allegations about the Applicant’s conduct could not be substantiated the Respondent did not pursue them. I also note that the Applicant received a first and final warning in July 2018 and a further first and final written warning in November 2018. The Applicant was not dismissed after the July final warning and nor was he dismissed after the final warning in November. Rather, the Respondent continued to issue notices to the Applicant reminding him of its expectations in relation to his work performance.

[149] In relation to the unscheduled stop made by the Applicant on 30 May 2019, while it was reasonable for the Applicant to stop the bus when he urgently needed to use a toilet, it was also reasonable for the Respondent to require that he notify the base if he was going off route. The documentary evidence in relation to this incident establishes that the Applicant was not given a letter of expectation because he had an urgent need to use a toilet, but rather because of his failure to notify base about this. It was also reasonable for the Respondent to be concerned about passengers, including children, being left on a bus in the dark while the Applicant used a toilet, and about equipment being stolen off the bus while it was unattended.

[150] The effect that this incident had on the Applicant is unfortunate. However, this impact to the extent it resulted in the Applicant suffering a psychological injury, was dealt with by the Applicant making a successful claim for workers’ compensation.

[151] While the Applicant was entitled to complain about the fact he had been issued with improvement notices and to dispute the substance of the allegations against him, I find it highly improbable that he was dismissed because he made such complaints. If the Respondent wanted to dismiss the Applicant for poor work performance it had ample opportunity to do so in 2018 after he received a second “first and final warning”. If the Respondent wanted to dismiss the Applicant because he made a workers’ compensation claim, the Applicant was not protected by s. 352 or the WC Act after a period of six months had elapsed from the date his absence on workers’ compensation leave commenced and the Respondent did not dismiss the Applicant. It was not until 14 months after the Applicant’s workers compensation leave commenced, and in the face of a certificate of capacity from his treating medical practitioner stating that he could not work again for the Respondent, that the Applicant was dismissed.

[152] Further evidence that the Respondent did not dismiss the Applicant for any reason other than his permanent incapacity to perform the requirements of his role, is the discussion between the Applicant and the Coomera Manager in November 2019 in which he was offered a choice on a roster line based on his seniority. At that point the that the Applicant had been absent from work since June 2019. That discussion evidences no intention on the part of the Respondent to dismiss the Applicant.

[153] Finally, before the Applicant was dismissed, he was he was invited to a meeting on 30 July 2020 and informed in advance by Mr Thompson that the purpose of the meeting was to discuss concerns about whether the Applicant could return to his role with the Respondent, given the medical certificate indicating that he could not return. While the Applicant disputes the Respondent’s record of the meeting on 30 July 2020, I accept that there was a discussion at the meeting about the Applicant’s inability to return to work and the necessity for him to obtain a clearance from his treating doctor if he wished to remain employed. Even on the Applicant’s version, while the analogy of a contract for a tractor that did not arrive was unfortunate, it indicates that there was a discussion about the fact that he had a contract of employment as a bus driver which he was unable to fulfil.

[154] I do not accept that Mr Thompson or Mr Harris (the attendees on behalf of the Respondent at the 30 July meeting) were attempting to pressure the Applicant’s doctor to change the medical certificate. Rather, they were endeavouring to persuade the Applicant to attend his doctor to ascertain whether he would be cleared to return to work. Every opportunity for the Applicant to seek a medical clearance was provided and on 4 August 2020, Mr Harris wrote to the Applicant and advised that the Respondent could not continue to employ him while there was no prognosis that he could return to work and confirming if the Applicant was unable or unwilling to provide the information, his employment would be terminated with four weeks’ notice. The Applicant was given a week to consult his medical practitioner and the Respondent confirmed that the medical practitioner had availability to see the Applicant within that time. This was not in my view pressuring the medical practitioner, but rather, attempting to give the Applicant every opportunity to obtain a clearance. That the Applicant did not attempt to do so or was unable to comply with the request, was the reason for his dismissal.

[155] In this context, the comments made by Mr Thompson in his witness statement that the Applicant chose to make a claim for workers’ compensation rather than face disciplinary action which would have resulted in the termination of his employment, do not “speak eloquently to the operative (and impermissible) reason for reasons” for the Applicant’s dismissal. Mr Thompson had no involvement with the Applicant prior to considering the Applicant’s situation before the meeting on 30 July to discuss his incapacity.

[156] The comment was not made contemporaneously with the Applicant’s dismissal. Rather, Mr Thompson’s comment was made in the context of defending a claim made by an employee with a chequered employment history including a disciplinary record containing some significant issues. In a career spanning some three years and 5 months from March 2017, the Applicant had two first and final warnings in 2018 and other letters detailing significant conduct and work performance issues in 2019 in circumstances where he was absent from work from June 2019 and did not return before his dismissal in August 2020.

[157] Viewed in the context in which it was made, Mr Thompson’s comment is nothing more than his assessment on the basis of the Applicant’s employment history, at the time Mr Thompson prepared his witness statement in the present proceedings. In circumstances where the Applicant had two first and final warnings and a number of subsequent conduct and performance issues, Mr Thompson’s comment that the Applicant would have been dismissed if he had been unable to provide a reasonable explanation for his actions is not surprising. It certainly does not evidence that the Applicant was dismissed for making a workers’ compensation claim.

CONCLUSION

[158] For these reasons I concluded that the Applicant’s dismissal did not contravene the general protections provisions of the FW Act and dismissed his application for the Commission to deal with a general protections dispute.

DEPUTY PRESIDENT

Appearances:

G.Baldwin of Stacks Champion for the Applicant.
P.Harris for the Respondent.

Hearing details:

4 & 5 February.
Brisbane.
2021.

9 March.
By telephone.
2021.

Final written submissions:

Applicant: 19 February.

Respondent: 26 February.

Printed by authority of the Commonwealth Government Printer

<PR730513>

 1   Exhibit A1.

 2   Exhibit R2.

 3   [2014] FWCFB 8941.

 4   General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J

 5   Ibid at [8] to [15].

 6   [2014] FWCFB 8941 at [12] citing Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (2010) 186 FCR 22 at [10]

 7 [2015] FCAFC 62.

 8 [2017] FCA 1046.

 9 (2012) 248 CLR 500.

 10 (2014) 253 CLR 243.

 11 [2017] FCA 1046 at paras 295 – 303.

 12   PN81 to PN88.

 13   PN171 to PN185.

 14   PN634.

 15   PN706.

 16   PN717.

 17   PN698.

 18   PN706.

 19   PN784.

 20   PN43 to PN49; see also PN159 to PN170.

 21   PN487 to PN492.

 22   PN77.

 23   Exhibit A2.

 24   PN92 to PN93.

 25   PN93.

 26   PN93.

 27   Exhibit A3.

 28   PN204.

 29   PN758 to PN759.

 30   Exhibit A8.

 31   PN220.

 32   Exhibit A4.

 33   PN259.

 34   Exhibit A5.

 35   PN748 to PN746.

 36   Exhibit A7.

 37   Exhibit A12.

 38   PN222 to PN233.

 39   PN263.

 40   PN366.

 41   PN763 to PN764; Exhibit A9.

 42   PN288.

 43   Exhibit A6.

 44   Exhibit A10; PN316 to PN326; PN765 to PN769.

 45   PN327 to PN334.

 46   Exhibit R2 Annexure L.

 47   PN348.

 48   PN596; PN599.

 49   PN599 to PN602.

 50   PN609 to PN613.

 51   PN91.

 52   Potentially October 2019 or earlier: PN40.

 53   Exhibits A13 and A14.

 54   Exhibit A13.

 55   Exhibit R2 Annexure D.

 56   Exhibit R2, annexure C.

 57   Ibid.

 58   Ibid.

 59   PN467 to PN510.

 60   PN486.

 61   PN568.

 62   PN569 to PN570; PN575.

 63   PN572.

 64   PN576.

 65   Exhibit R2 Annexure A.

 66   Exhibit R2 Annexure B.

 67   Exhibit R2 Annexure C.

 68   PN902; PN904; PN915.

 69   PN902.

 70   PN903.

 71   PN906.

 72   PN911.

 73   Exhibit R2 at Annexure H.

 74   Ibid at Annexure I.

 75   Ibid at Annexure J.

 76   Ibid at Annexure K.

 77   PN843; PN852 to PN853.

 78   Exhibit R1.

 79   PN876.

 80   PN883.

 81   PN892 to PN895.

 82   PN957 to PN958.

 83   PN43 to PN49; see also PN159 to PN170.

 84   PN514 to PN516.

 85   PN517 to PN524.

 86   PN698.

 87 (1959) 101 CLR 298.

 88   PN514.

 89   PN38; PN515.

 90 [2012] FCA 628 (15 June 2012).