Sasalili Fia v Corinthian Industries (Australia) Pty Ltd

[2013] FWC 2694

[2013] FWC 2694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Sasalili Fia
v
Corinthian Industries (Australia) Pty Ltd
(U2012/14210)

DEPUTY PRESIDENT SAMS SYDNEY, 7 MAY 2013

Application for unfair dismissal remedy - employee injured during the course of work with another employer - employee on unpaid leave pending full medical clearance - employee on light duties with the other employer - warning of termination if return to work could not be advised - excessive leave due to injury valid reason for dismissal - differential treatment - no procedural unfairness - application dismissed.

BACKGROUND

[1] This matter concerns an application filed by Mr Sasalili Fia (the ‘applicant’) pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks relief from his alleged unfair dismissal by Corinthian Industries (Australia) Pty Ltd (the ‘respondent’) on 12 October 2012. The applicant had been employed by the respondent since 2001 and at the time of his dismissal, he was a leading hand on the trim line in the press area. The applicant was also working a second job at Star Track Express where he sustained an injury in or around 4 March 2012, which subsequently required surgery. Obviously, this injury had an impact on his work and attendance for work at the respondent’s timber door factory.

[2] The reason for the applicant’s dismissal was expressed to be: ‘Excessive leave due to work injury sustained at another employer.’ It is not disputed that he had three months unpaid sick leave in the twelve months prior to his dismissal. On 28 September 2012, the respondent’s General manager, Mr Sameer Bhave wrote to the applicant in the following terms:

‘Dear Sus,

We note that you have been absent from your job for a considerable period. We understand this is due to a workplace injury sustained in your other employment and your current restrictions prevent you from performing your duties with us.

As your total time off over the last 12 months exceeds 3 months, we are writing to advise that we are unable to keep your position open indefinitely.

We would like to meet to understand when you anticipate a return to your job with us. Please note we will require a full clearance from your doctor and evidence of a full return to pre-injury duties with your alternative employer.

Please contact me to discuss this situation. If we have not heard from you by Friday 5th October we will act to terminate your employment.’

[3] A meeting was held with the applicant on 3 October 2012, in which he was advised that his position could not be held open indefinitely pending a full clearance from his doctor of a return to his pre-injury duties. The applicant replied that he was seeing his doctor again on 12 October 2012. The applicant produced a WorkCover NSW Medical Certificate dated 12 October 2012, which did not deem him fit for pre-injury duties. As a result, the applicant’s employment was terminated and he was paid four weeks pay in lieu of notice and all his outstanding accrued entitlements. It is not disputed that the applicant received a clearance from his doctor that he was fit for return to his full pre-injury duties only two weeks later.

THE EVIDENCE

[4] The facts of this matter are largely undisputed, although there was an allegation (later withdrawn) that the applicant was not offered a support person to attend the two meetings with Mr Bhave on 3 October and 12 October 2012. In his statement, the applicant made further allegations of discrimination, degrading and inappropriate comments having been made to him in the workplace and that he was discriminated against by virtue of his role as a Union member and his carer’s responsibilities. There was no evidence that these allegations gave rise to a claim that he was dismissed for raising these matters or that he was dismissed for being a Union member. In any event, if he believed these claims to be genuine, it might have been expected some other application would have been lodged by him, or on his behalf by the Union.

[5] From the tenor of the proceedings on 15 April 2012, where the applicant was supported by his partner, his main grievance was an allegation that other employees of the respondent, with non-workplace injuries, had received more favourable treatment than he did. This amounted to discrimination. I shall come back to these matters in due course.

For the applicant

[6] The applicant claimed he was a loyal employee for over ten years and the father of four children under twelve. At all times, he was honest and upfront about his injury and his second job. The applicant said his decision to work a second job was ‘a necessity, not a luxury’. He said that the respondent had never offered him retraining, light duties or transition to another role within the company or its sister entities when he was injured. He believed his dismissal was a deliberate act by the respondent for reasons unrelated to his injury. He should have been offered retraining or light duties (such as in the gate house) while waiting to fully recover, which was the usual practice.

[7] The applicant said that he had consistently kept the respondent up to date with the progress of his injury and informed them he would be off for twelve weeks. However, his injury was never discussed with the respondent’s OH&S officer, HR staff or Return to Work Co-ordinator. The applicant firmly believed that other injured employees had kept their jobs after having been off work for longer than he had. He believed he was treated differently because of his second job and Union membership. The applicant said he could not force the doctor to give him a clearance.

[8] The applicant received a full medical clearance to return to full duties just two weeks after his dismissal. He and his family were now struggling financially on one income. He believed the respondent had acted in a discriminatory way and without reference to its duty of care to him after ten years service. He sought compensation for a morally ‘reprehensible decision’ that had affected him and his family physically, psychologically and financially.

[9] In oral evidence, the applicant was asked to explain a number of inconsistent dates in respect to when he saw the doctor after his workplace injury. He believed he saw the doctor at 8:00pm on the day of the injury (14 March 2012), despite the doctor indicating he had not seen him till May. The applicant insisted the doctor had got the dates wrong.

[10] The applicant accepted that when he had the first meeting with Mr Bhave on 3 October, Mr Bhave had told him that if he did not receive a clearance from his doctor by the next meeting on 12 October and return to work on 15 October 2012, his employment would be terminated. He acknowledged that the respondent had been keeping his role open and no predetermined decision had been made on 3 October as to what would happen on 12 October.

[11] The applicant changed his earlier evidence and now agreed he had been offered a support person for both meetings and that he had declined. Nevertheless, Mr Bhave arranged for the Union organiser to participate on the phone in the second meeting. However, the applicant was unresponsive to a question as to whether he had been denied natural justice. The applicant accepted he had signed off on the minutes of the meetings prepared by Mr Bhave.

For the respondent

Mr Sameer Bhave

[12] Mr Bhave detailed his work experience for the respondent and explained that, as part of his duties, he is required to monitor the overall attendance records of all employees. Mr Bhave was aware of the applicant’s injury at Star Track Express. He understood the applicant had been working as a Yard Driver, 30-35 hours per week in addition to his full time role with the respondent.

[13] Mr Bhave said the respondent’s policy requires a full medical clearance before any employee can return to work after non-work related injuries. Mr Bhave was aware that WorkCover certificates had deemed the applicant unfit for normal duties and that he was performing suitable light duties with Star Track Express. None of the medical certificates provided the applicant with a full and final medical clearance. Mr Bhave said, to the best of his knowledge, the applicant had not requested to come back to work to perform light duties.

[14] Mr Bhave confirmed the correspondence sent to the applicant (see para [2]) and the meetings held with him on 3 and 12 October 2012. On each occasion, Mr Bhave offered him the opportunity to have representation or a witness present, however the applicant had declined. File notes were made of each meeting, which were signed by the applicant. At the second meeting, Mr Bhave specifically proposed that the Union organiser, Mr Davies, participate in the meeting by phone. The applicant again declined. During the second meeting, the applicant informed Mr Bhave that his doctor could not say when he would receive a full clearance.

[15] After informing the applicant that he was to be terminated, Mr Bhave again indicated his intention to call Mr Davies and have him participate. When Mr Bhave explained the situation, Mr Davies had said, ‘There is nothing more I can add to what has already been said. I understand the company’s position.’ Mr Bhave believed the applicant was given every opportunity to raise and put whatever he wished to respond to the situation. When the meeting ended, they shook hands.

[16] In response to the applicant’s statement, Mr Bhave submitted that:

a) the applicant’s absence was not temporary as defined by the Act;

b) he had no knowledge of any complaint made by the applicant concerning discrimination, degrading or inappropriate comments, or unfair treatment in comparison to others;

c) the applicant had not asked the respondent for suitable light duties. In any event, his medical restrictions meant he could not work any longer than eight hours, which he was already doing at Star Track Express; and

d) it was made clear to the applicant that he could have a support person with him and that if he did not provide a full clearance, his employment would be terminated.

[17] In oral evidence, Mr Bhave reaffirmed much of what was said in his written statement. I will not repeat it here. Nevertheless, Mr Bhave claimed that both meetings had been arranged in writing with the applicant. The meetings were a ‘two way conversation’. As to the meeting of 12 October 2012, the applicant provided a certificate indicating he was still medically unfit. He could give no indication of when he would get a full clearance. Even though the applicant did not want representation, Mr Bhave insisted it was appropriate to call the Union Organiser and the applicant agreed he could participate.

[18] Mr Bhave deposed that no decision had been made to terminate the applicant’s employment prior to 12 October, because ‘it was all hanging on the medical certificate’. Mr Bhave reaffirmed that at no time during the applicant’s employment had he raised any issues concerning discrimination, carers’ responsibilities or Union membership.

[19] Mr Bhave acknoweldged that the respondent has had another employee who had a non-work related injury and who was now back at work with a full medical clearance after three and a half months off. Mr Bhave said the applicant underwent the same process as this employee. The applicant’s role involved working with machinery using his hands to full capacity. It would be unsafe for him to work in a manufacturing environment working with machinery with partial use of both hands.

[20] In cross examination, Mr Bhave conceded the other injured employee, recently returned to work, had been on leave for longer than Mr Bhave. As to alternative duties, Mr Bhave had understood that one of the applicant’s work limitations related to maximum hours, which he was already working at Star Track Express. In any event, the applicant had never asked for suitable alternative duties.

SUBMISSIONS

For the applicant

[21] The applicant’s partner made submissions on his behalf. She emphasised that it was unfair that other employees (as admitted by Mr Bhave) had been off work longer than the applicant, but were given a chance to return to work.

[22] Ms Fia said her partner’s working two jobs was a necessity, not a luxury. After eleven years with the respondent, he had every intention of returning to full time duty when he was medically fit. A doctor certified that he was only two weeks later.

[23] Ms Fia concluded by saying:

‘So legally speaking, yes I believe you crossed your t’s and dotted your i’s, but morally we are just disappointed that even though we did turn around and say another two weeks for that doctor’s certificate, I know we could not guarantee a date of return to work. As much as we hoped we could get it, we couldn’t. And it’s just unfair that he had to that extra two weeks that did that.’

For the respondent

[24] Ms J Gilbert from the Timber Trade Industrial Association, submitted that there was a valid reason for the applicant’s dismissal. It related to his incapacity to perform his duties after an extended absence from work due to a non-work related injury. He was absent for nearly four months and was unable to provide a full medical clearance. The respondent did not know when he might receive such a clearance; See: Cyprys v Above the Line Pty Ltd[2012] FWA 1247 (‘Cyprys v Above the Line’). As a timber door manufacturer, the applicant was involved in the door trimming line in the press area. This required the full use of both hands to ensure a safe working environment.

[25] Ms Gilbert noted that there was no dispute that the applicant:

● was well aware that his continued employment was at risk if he did not attain a full medical clearance;
● was given a letter inviting him to a meeting to discuss the situation;
● attended two meetings on 3 October and 12 October 2012 to discuss his situation. The latter of these was for him to demonstrate when he could return to work;
● was offered a support person to be present at both meetings and Mr Bhave even called the Union Organiser to be on the line during the second meeting;
● was given every opportunity to respond to any of the respondent’s concerns as to his return to work.

[26] Ms Gilbert noted that the applicant had returned to light duties with his other employer in August 2012. Accordingly, any order made by the Commission for compensation should take this into account.

[27] Ms Gilbert noted that the respondent has many employees who are Union members. She said that the applicant did not raise any issues as to discrimination, degrading or inappropriate comments, carers’ responsibilities or Union membership until after his dismissal.

[28] Ms Gilbert put that the applicant was not treated unfairly. All employees are required to have a full medical clearance after a non-work related injury. The respondent could not provide him with alternate duties. However, he had not asked for any, because he was already working a maximum of 6-8 hours with Star Track Express in accordance with Return to Work arrangements with it. Ms Gilbert stressed that each case is determined on its own merits and the applicant head been treated no differently to any other employee in a similar situation.

CONSIDERATION

Statutory provisions

[29] Before considering the merits of this application, the Commission is required to make findings on four preliminary matters set out in s 396 of the Act as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[30] The application for an unfair dismissal remedy was filed on 16 October 2012. There is no dispute the applicant’s dismissal was on 12 October 2012. Accordingly, the application was filed within the then statutory time frame set out in subsection (a) above. The applicant was employed for the minimum employment period and was covered by the Corinthian Industries NSW Enterprise Agreement 2011 - 2015 [AE890570]. He was a person protected from unfair dismissal (subsection (b) above). The respondent employs some 600 employees Australia wide. Consequently, the Small Business Fair Dismissal code has no relevance to this matter. There was no submission that the applicant’s dismissal was for reasons of genuine redundancy.

[31] For completeness, s 385 of the Act sets out the criteria for determining whether the applicant was unfairly dismissed:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’

[32] There is no question that the applicant’s employment was terminated at the initiative of the employer in satisfaction of s 386 of the Act. Therefore, he was dismissed for the purposes of subsection (a) above. Subsections (c) and (d) do not apply and the remaining matter for the Commission to determine is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)). That leads the Commission to travel to the criteria for considering harshness, unreasonableness and unjustness under s 387 of the Act, which I will come to momentarily.

[33] However, at the outset, let me state unequivocally what this case is not about. It is not a general protections case involving a temporary absence on account of illness or injury. Nevertheless, even if it was such a case, it would seem unarguable that the definition of temporary injury as referred to in Reg 3.01(5) has not been met in that the applicant was off work for more than three months. The Regulation is 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.

(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.

(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 [emphasis added].’

[34] That said, the relevant statutory provisions governing the application are set out at s 387, which I will come to shortly. One of the critical requirements is for the Commission to make a finding as to whether there was a valid reason for the applicant’s dismissal (s 387(1)(a)). The reason given by the employer in this instance was ‘excessive leave due to injury sustained at another employer’. In addition, I apprehend the respondent’s uncertainty as to when the applicant would be returning to his full pre-injury duties, was an associated basis for the applicant’s termination of employment. Thus, the question is whether these grounds constituted a valid reason for the applicant’s dismissal, particularly given there was no evidence of any other performance or conduct issues adverse to the applicant in a relatively long period of service of eleven years.

[35] It seems to me that the answer to the valid reason test in this context, might well be the respondent’s correct conclusion as to the Act’s definition of what is and what is not a temporary absence due to injury. The respondent was at least entitled to be informed of that definition when making the decision it did. Whether the time off necessary to recover from an injury incurred at another employer’s workplace was ‘excessive’, is perhaps a matter on which informed views might differ or may be conveniently accommodated due to an employer’s particular circumstances. I think the better view is that, at the time of the dismissal and in light of the absence of the applicant, the respondent did not know, and could not be assured of, when the applicant might be able to return to his pre-injury duties. The fact that he was cleared for pre-injury duties just two weeks later is really not the point.

[36] On the other hand, the applicant asserts that he was treated differently to other employees in that others had longer periods of absence, but their jobs were kept open. On this point, it is interesting to digress and observe that, while differential treatment is a specific factor under s 394 (3)(b) of the Act (dealing with whether the Commission should accept an unfair dismissal applicant made ‘out of time’), it is not a discrete factor under s 387 of the Act.

[37] Of course, the authorities make clear that differential treatment of employees is a matter which might be taken into account in unfair dismissal cases; See: APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230. Usually, the differential or disproportionate treatment argument arises in respect to two or more employees whose misconduct or poor performance is the same, but they are treated differently or disproportionately. That is not the case here. In any event, one may safely assume that it is a matter which would fall under the general heading at s 387(h), ‘any other matters that FWC considers relevant’. If it is to have any bearing in this case, then that is how I intend to treat it.

[38] Returning then to s 387 of the Act, which is expressed in full as follows:

‘387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[39] The phrase ‘harsh, unreasonable or unjust’ is well known in the industrial lexicon. Often quoted is the decision of the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 (‘Byrne’), where McHugh and Gummow JJ ascribed an industrial meaning to each of the words in the phrase as follows:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted’.

Was there a valid reason for the applicant’s dismissal

[40] It seems to me that the answer to this question is the central focus of this case. This is so because, as I will later observe, there is little to criticise in the respondent’s handling of the applicant’s dismissal, so as to ground any adverse findings of procedural unfairness against the respondent.

[41] The meaning of ‘valid reason’ in the context of an unfair dismissal case is drawn from the words of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’), where His Honour said:

‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.’

I will come back to this definition shortly.

[42] It is pellucidly clear from the relevant authorities that an employee’s ongoing incapacity to perform the inherent requirements of his/her job may be a ‘valid’ reason for the termination of the employee’s employment; a fortiori, where the employer does not know, and the employee cannot be certain of, when he/she might be fit for full pre-injury duties.

[43] Ms Gilbert referred me to a decision of Commissioner Gooley (as she then was) in Cyprys v Above the Line, in which the Commissioner said at para [43]:

‘Was the reason given by the Respondent for terminating the Applicant’s employment a valid reason?

[43] An employer, particularly a small business, cannot be expected to keep open indefinitely the job of an employee who is medically unable to return to work. Given all the circumstances, and in particular the refusal of the Applicant to provide any formal advice to the Respondent about how his return to work could be facilitated and where the Respondent did not know when it was expected that the Applicant could return to his duties, I consider that the Respondent had a valid reason for terminating the Applicant’s employment.’

[44] In any event, it seems to me that Her Honour’s approach accorded with the conventional Full Bench authority on the question, to which I will now refer. In Smith and Kimball v Moore Paragon Australia Ltd PR942856 [2004] AIRC 57, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at paras [44], [48], [51] and [54]:

‘[44] The present case provides an illustration. As the First Full Bench found, where the reason for termination is that an employee has a WorkCover history, that reason without more will not be a valid reason for termination. It would not of itself provide any basis for opposing an order for reinstatement. However, under the general law an employer may lawfully terminate, or perhaps treat as frustrated, the contract of employment of an employee who, by reason of illness or injury, does not have an ongoing capacity to perform the duties of the position in which he or she is employed. Hence the need for provisions in workers' compensation legislation protecting an injured employee for a period following the injury and a provision such as s.170CK(2) in the Workplace Relations Act 1996. However, ongoing incapacity arising from illness or injury can certainly be a valid reason for termination of employment within the meaning of s.170CG(3)(a).

...

[48] The traditional view was that when an employee is so incapacitated by illness or injury that he or she cannot work, at least in the longer term, the contract may be frustrated and thus terminated by operation of law and not at the initiative of the employer. In Marshall v. Harland & Wolff Ltd Donaldson J, giving the judgment of UK National Industrial Relations Court stated:

"In the context of incapacity due to sickness, the question of whether or not the relationship has come to an end by frustration sounds more difficult than it is. The tribunal must ask itself: 'Was the employee's incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the agreed terms of his employment?' In considering the answer to this question, the tribunal should take account of:

(a) The terms of the contract, including the provisions as to sickness pay

The whole basis of weekly employment may be destroyed more quickly than that of monthly employment and that in turn more quickly than annual employment. When the contract provides for sick pay, it is plain that the contract cannot be frustrated so long as the employee returns to work, or appears likely to return to work, within the period during which such sick pay is payable. But the converse is not necessarily true, for the right to sick pay may expire before the incapacity has gone on, or appears likely to go on, for so long as to make a return to work impossible or radically different from the obligations undertaken under the contract of employment.

(b) How long the employment was likely to last in the absence of sickness

The relationship is less likely to survive if the employment was inherently temporary in its nature or for the duration of a particular job than if it was expected to be long term or even lifelong.

(c) The nature of the employment

Where the employee is one of many in the same category, the relationship is more likely to survive the period of incapacity than if he occupies a key post which must be filled and filled on a permanent basis if his absence is prolonged.

(d) The nature of the illness or injury and how long it has already continued and the prospects of recovery

The greater the degree of incapacity and the longer the period over which it has persisted and is likely to persist, the more likely it is that the relationship has been destroyed.

(e) The period of past employment

A relationship which is of long standing is not so easily destroyed as one which has but a short history. This is good sense and, we think, no less good law, even if it involves some implied and scarcely detectable change in the contract of employment year by year as the duration of the relationship lengthens. The legal basis is that over a long period of service the parties must be assumed to have contemplated a longer period or periods of sickness than over a shorter period.

These factors are inter-related and cumulative, but are not necessarily exhaustive of those which have to be taken into account. The question is and remains: 'Was the employee's incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and accepted by the employer under the agreed terms of his employment?' Any other factors which bear on this issue must also be considered."

...

[51] The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:

• further performance of the employee's contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;



• reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or



• reinstatement would impose an unreasonable burden on other employees.

Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.

...

[54] In summary, subject to the guiding principle referred to in paragraph [51] above, the following matters are relevant to the weight to be accorded to an employee's ongoing incapacity arising from injury or illness when considering whether reinstatement pursuant to s.170CH(3) is appropriate:

• The terms of the contract of employment including, in particular, the extent to which the contract of employment specifies inherent requirements for the employee's contractual "position".



• The nature of the employee's incapacity and whether it prevents the employee from satisfying the inherent requirements of the employee's contractual position.



• The breadth of the contractual "position" occupied by the employee and the duties or job actually performed by the employee at the time his or her employment was terminated. Where a given "position" covers a wide range of duties and jobs within the employer's business, it is less likely that an inability to perform some only of those duties or jobs will be determinative against reinstatement.



• The practicality and reasonableness of providing modified work arrangements (including, possibly, the provision of special equipment) or modified duties to an employee so as to enable the employee to make a fully or substantially fully productive contribution to the employer's enterprise albeit within the restrictions arising from the employee's injury or illness. Clearly, it will often be impractical or unreasonable for a small employer to provide modified work arrangements or modified duties.



• The likelihood, if any, of a substantial recovery by the employee from his or her illness or injury and the consequent work restrictions.



• Any statutory duties falling upon the employer under workers' compensation or other legislation and whether such duties have been complied with [emphasis added].’

[45] In J Boag and Son Brewing Pty Ltd v Allan John Button[2010] FWAFB 4022 (‘Boag v Button’), a Full Bench of Fair Work Australia (FWA) said at paras [22] and [29]:

‘[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

...

[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense [emphasis added].’

[46] In my opinion, the reason given for the applicant’s dismissal by the respondent was a valid reason. I can see no basis, let alone evidence, for a conclusion that the reason was ‘capricious’, ‘fanciful’, ‘spiteful’ or ‘prejudiced’. It was ‘sound’ and ‘defensible’ in the sense that the respondent did not know, nor could the applicant give any indication of when he would be returning to full pre-injury duties. It was unfortunate, from the applicant’s perspective, that the clearance was given two weeks later. However, at the relevant time, this fact was obviously unknown to the respondent and purely speculative.

[47] The applicant’s alleged grievances in relation to discriminatory, degrading and inappropriate comments and that he may have been dismissed for his carers’ responsibilities and Union membership were also unknown to the respondent at the time. There was no evidence that the applicant had ever raised these matters with the respondent, including when it might be said he had a perfect opportunity to do so, in the two meetings with Mr Bhave on 3 and 12 October 2012. There was no evidence that the applicant had told anyone else about these concerns, particularly as to discrimination on Union membership grounds, where it might be thought the Union (CFMEU), would have leapt to the applicant’s defence if he had done so.

[48] Moreover, there was no evidence that there was a causal link to these matters and the applicant’s dismissal. The reason was always set out in clear and unequivocal terms which the applicant understood. With respect, the only conclusion I can draw is that the applicant’s claims are a belated attempt to recreate a set of circumstances to justify his claim that his dismissal was unfair. His allegations were no more than his perceptions. They were not based on any evidentiary foundation. Importantly, however, he did nothing to inform the respondent of them and, consequently, they could not possibly have figured in any consideration by the respondent concerning his dismissal. I would add that, given the respondent has many Union members as employees, it is highly unlikely that this was ever a factor relevant to the decision to dismiss him.

[49] The applicant’s perceptions were perhaps on a sounder footing by the submission that he was treated unfairly, because one other employee had been on leave to recover from a non work related injury, longer than he had, and this employee was now back at work. While Mr Bhave conceded that this was the case, the time difference was only a matter of a few weeks. He said that each individual’s circumstances must be taken into account. While the claim was not developed to any significant degree, there was no evidence, for example, as to whether that employee had known when he was likely to return to work, the nature of his injury, his job or other of his personal circumstances. No other examples were cited by the applicant in support of this allegation.

[50] While I accept the applicant might have felt aggrieved by this seemingly unequal treatment, it does not appear to have been raised by him, at any time, prior to 12 October 2012. Moreover, I do not consider that this claim gets near to the threshold of overturning a finding that his dismissal was for a valid reason.

[51] Turning to the other matters in s 387 of the Act, I do not intend to refer to the relevant authorities on the issue of procedural fairness. This is because the applicant’s own evidence and his partner’s submissions made clear that the dismissal could not be criticised for any lack of procedural fairness. However for completeness, I will make the following findings.

a) the applicant was notified on 28 September 2012 of the reason for his likely dismissal and in the meetings with Mr Bhave on 3 and 12 October 2012;

b) the applicant was given every opportunity to respond to the reason related to his capacity to perform the work. Indeed, he was positively encouraged to obtain a full clearance from his doctor so as to allow his return to his pre-injury duties;

c) the respondent offered and encouraged the applicant to have a support person present at both meetings. While he declined, Mr Bhave was concerned enough to call the Union Organiser so that he could be involved in the 12 October 2012 meeting;

d) there was no suggestion that the applicant’s performance was otherwise unsatisfactory, although it must be said the applicant was warned his employment would be in jeopardy if he did not obtain a full medical clearance. I accept that the question of a full clearance was obviously out of the applicant’s hands and I agree he could not force his doctor to do so;

e) and f) are not relevant in this case, as I consider the respondent’s process leading up to, and including the applicant’s dismissal, was appropriate in all the circumstances.

[52] Three other matters are relevant to my determination of this application. Firstly, there was a concession from the applicant’s partner, appropriately made, I might say, that ‘legally speaking, yes I believe you crossed your t’s and dotted your i’s’.

[53] Secondly, to follow on the above quote, Ms Fia said ‘morally, we are just disappointed’. While I have some sympathy for the fact that the applicant obtained a full medical clearance two weeks later, that is not the point. Unfortunately, this Commission cannot make findings on the grounds of sympathy for a party; nor is it a Tribunal of morals; See: Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 at 344. The Commission is bound only to the relevant statutory tests under s 387 of the Act and the notion of applying the principle of a ‘fair go all round’ (s 381(2) of the Act). Applying those tests does not permit a finding that the applicant’s dismissal was ‘harsh, unreasonable or unjust’.

[54] Thirdly, while I readily accept the applicant’s reason for taking a second job was because of necessity and not, to use his word, a ‘luxury’, the fact was that, for some time prior to his dismissal with the respondent, he was working at least six to eight hours a day for Star Track Express. Because of his restrictions, he was not permitted to work any further hours. So, even if the applicant had asked for alternative or light duties, (which I accept he did not), the respondent was unable to do so, because these restrictions would be breached. This was a very sound reason why it was not possible to offer him alternative duties. In these circumstances, the respondent’s only option was the one it ultimately took.

[55] In any event, it was not as if the applicant was completely without any income. It is to his credit that he worked two jobs in order to support his family. He was completely open and honest about it and the injury he sustained at that workplace. Regrettably, though, these are not matters for which the respondent in this case should ultimately be held accountable.

[56] For all the foregoing reasons, I find that the applicant’s dismissal on 12 October 2012, was not ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. The application must be dismissed. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

K Fia for the applicant.

J Gilbert of the Timber Trade Industrial Association for the respondent.

Hearing details:

2013

Sydney

15 April

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