Sidhu v Aldi Stores (A Limited Partnership)
[2022] FedCFamC2G 239
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sidhu v Aldi Stores (A Limited Partnership) [2022] FedCFamC2G 239
File number(s): MLG 1 of 2021 Judgment of: JUDGE MCNAB Date of judgment: 5 April 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action claim – whether employer took adverse action against employee – whether employer took adverse action against employee because the employee exercised a workplace right – employee had made complaints about being required to attend on an occupational therapist – employee had made complaints in relation to bullying by employees – claim for workers’ compensation for work related stress and anxiety – whether the employer had taken adverse action for by dismissing the employee – whether the employer engaged in adverse action by instructing an employee to attend a further assessment of capacity – where there was a sufficient reason to ask the employee to attend a examination in relation to employee’s capacity to work – application dismissed. Legislation: Evidence Act 1995 (Cth) s 144.
Fair Work Act 2009 (Cth) ss 340, 341, 342, 344, 351, 361, 546.
The Accident Compensation Act 1985(Cth).
Workers Compensation Act 1958 (Cth).
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 1.04.
Occupational Health and Safety Act 2004 (Vic) s 121.
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 588.
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445.
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41.
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451.
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.
X v Commonwealth [1999] HCA 63.
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 15 March 2022 Date of hearing: 13 & 14 December 2021 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms J Zhou Solicitor for the Respondent: Hentys Lawyers ORDERS
MLG 1 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SIDHU
Applicant
AND: ALDI STORES (A LIMITED PARTNERSHIP)
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
5 APRIL 2022
THE COURT ORDERS THAT:
1.The application filed on 4 January 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge McNab
INTRODUCTION
This matter comes before the Court by way of an initiating application filed by the Applicant on 4 January 2021. By that application, the Applicant claims that the Respondent:
(a)took adverse action within the meaning of section 342 of the Fair Work Act 2009 (Cth) (“the FW Act”), by dismissing the Applicant from his employment: see Item 1(a), Column 2 of section 342 of the FW Act; and
(b)exerted undue pressured on the Applicant by allegedly forcing him to attend a medical examination: see section 344 of the FW Act.
In respect of the claim to adverse action, the Applicant says he has a right to a working environment that is safe and without risk to health, pursuant to section 21 of the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”). The Applicant says he exercised this workplace right by making complaints about alleged unreasonable and unlawful demands made to him by representatives of the Respondent. On that basis, the Applicant claims that the Respondent subjected him to adverse action for a prohibited reason, in that the Respondent terminated his employment for exercising a workplace right to make a complaint or inquiry in relation to his employment: see section 341(1)(c)(ii) of the FW Act.
The Applicant by the application filed on 4 January 2021 seeks the following relevant orders:
(1)A minimum 26 weeks wages which comes equivalent to approximately $30,000.[1]
(2)Compensation for mental and emotional harms $20,000.
(3)The Respondent make payment of interest up to judgment pursuant to section 547(2) of the FW Act.
(4)The Respondent pay a pecuniary penalty pursuant to section 546 of the FW Act.
[1] In opening the Applicant stated that as compensation he wanted a sum that would see his mortgage paid being about $300,000.
By a response filed on 19 April 2021, the Respondent opposes the making of such orders, and seeks that the application be dismissed with costs.
At the trial, which was conducted via Microsoft Teams, the Applicant appeared on his own behalf and gave oral evidence with questions directing his evidence being asked by the Court when he gave evidence in chief.
The Respondent relied on the evidence of the following employees of the Respondent who each filed outlines of evidence and gave oral evidence to the Court:
(a)Mr Travis Peters who has been the Logistics Manager of the Respondent since January 2019 and who reported to Mr Katz. Mr Peters is one of the people who made the decision to terminate the Applicant’s employment;
(b)Mr Tahl Katz who has been the Logistics Director of the Respondent since May 2015 and was the person to whom Mr Peters reported. Mr Katz was one of the two decision makers decided to terminate the Applicant’s employment on the ground that the Applicant had repeatedly refused to obey what was said to be a lawful and reasonable direction to attend a Psychological Assessment of Capacity[2] to be conducted by an external occupational therapist engaged by the Respondent; and
(c)Ms Belinda Truong who has been employed by the Respondent as a Logistics Manager since January 2016. She took notes of meetings and telephone conversations between the Applicant and Mr Peters on 5 February 2020 and meetings on 12 August 2020 and 2 October 2020. She was also responsible for sending correspondence to the Applicant reminding him of the Respondent’s requirement that he attend a Psychological Assessment of Capacity (with an occupational therapist).
[2] This term was referred to in Mr Katz’ witness statement dated 8 October 2021.
BACKGROUND
There is no real controversy in this matter regarding the factual background leading to the termination of employment. The controversy is about whether Mr Peters and Mr Katz decided to terminate the Applicant’s employment because he made complaints about being required to see Mr Marsh. I have drawn on the Respondent’s closing submissions as to the background of the factual setting as they are an accurate account of same.
On 3 April 2018, the Applicant commenced as a casual truck driver. On 6 August 2018, the Applicant was offered a full-time position as a truck driver, commencing 13 August 2018. In his role, the Applicant’s duties included driving heavy combination vehicles on public roads.
In or about September 2019, the Applicant lodged a WorkCover claim in respect of mental health issues, namely anxiety and depression, caused by work-related stress and alleged workplace bullying. The Applicant says that his mental health issues were caused by bullying by the Store Manager at a branch of the Respondent business. At [1(b)] of the Further and Better Particulars claim (“FBP claim”) filed on 22 March 2021, the Applicant says that those bullying incidents were as follows:
(i)on or about 30 June 2019, when the applicant was unloading the delivery items at the respondent‘s Sanctuary Lakes store, the store manager behaved aggressively and rudely towards the applicant (first bullying incident);
(ii)in or about early September 2019, the Sanctuary Lakes store manager turned his back on the applicant when he Sanctuary Lakes Store, and the store manager’s husband who was also present with her looked at the applicant in a way that made him feel unsafe (second bullying incident occurred);
(iii)on or about 22 September 2019, while the applicant was unloading the delivery items at the Sanctuary Lakes store, he requested the store manager 2 to provide a clear unloading dock, but the store manager behaved aggressively towards the applicant and refused to provide any help (third bullying incident).
In October 2019, the Applicant lodged a claim for workers’ compensation for work related stress/anxiety.
From October 2019 to October 2020, the Applicant was certified by his medical practitioners as having no capacity for employment, with the exception of the following periods:
(c)on 20 January 2020, the Applicant was certified as having a capacity for suitable employment from 20 January 2020 to 17 February 2020;
(d)on 4 March 2020, the Applicant was certified as having a capacity for suitable employment from 5 March 2020 to 2 April 2020;
(e)from 4 June 2020 to 24 September 2020, the Applicant was certified as having capacity for suitable employment; and
(f)on 16 September 2020, the Applicant was certified as having a capacity for pre- injury employment from 17 September 2020.
Attempted Return to Work
On the basis that the Applicant was certified as having capacity for suitable employment on 20 January 2020, the Applicant returned to work for a scheduled three-hour shift on 30 January 2020. He was unable to complete it.
Travis Peters stated in oral evidence:
…At some point during the shift, I met with Gurpreet at, near or adjacent to the transport area, because his leaders had reported he was distressed or just wasn’t coping with the work at the time. And so I met with him briefly, noticed that he was not – not comfortable with – with the situation. He was tearing up a small piece of paper into very small pieces into smaller chunks and clearly not comfortable with being at work. And so we decided to stop there and agree to – to start again at the next shift.[3]
[3] Transcript page 51, line 11-20.
On 4 February 2020, the Applicant was scheduled to return to work for his second shift. The Applicant conceded in evidence and cross-examination that he did not attend his second shift because after he arrived at the Respondent’s carpark on that day, he saw a car, which he believed to be the car of his previous manager against whom he had a prior complaint.
After this incident, on 5 February 2020, the Applicant was certified as being unfit to work once more. The Applicant did not again return to work after 4 February 2020.
On 16 September 2020, the Respondent directed the Applicant to attend an assessment with Mr Paul Marsh, occupational therapist (“OT”).
Medical Information from June 2020 onwards
On 12 August 2021, the Respondent requested the Applicant’s General Practitioner (“GP”), Dr Motaman and treating psychologist Dr Barker to provide medical reports containing their respective medical opinions and to provide answers to a medical questionnaire. In response to the Respondent’s request, Dr Motaman provided a report dated 18 August 2020, and Dr Barker provided a report dated 7 September 2020.
Clauses 2.1 and 2.2 of the questionnaire directed to Dr Motaman and Dr Barker asked:
2.1.ALDI Stores now request for your medical opinion in respect of Mr Sidhu’s Condition and his capacity to safely perform the inherent requirements of the Transport Operator role, in accordance with the tasks listed in the attached Job Dictionary.
2.2.In your report, we request that you please provide your responses based on your medical opinion regarding the following:
(a)Having regard to Mr Sidhu’s Condition and the tasks listed in the Transport Operator Job Dictionary, do you agree with Dr Motaman’s opinion as contained in the CoC dated 30 July 2020, that Mr Sidhu is fit to perform suitable duties?
(b)If Yes to item 2.2(a), please provide your opinion as to what restrictions should be imposed on Mr Sidhu as part of his return to work.
(c)In addition to item 2.2(b), how long do you believe Mr Sidhu’s restrictions should be imposed?
(d)In relation to the CoC dated 19 July 2020, Dr Motaman stated that Mr Sidhu’s “attention/concentration” and “memory” is affected. In your opinion do you believe that this a key factor why Mr Sidhu is only capable of performing suitable duties? In providing your response, please have regard to the Job Dictionary.
(e)If Yes to item 2.2(d), please provide your opinion as to what reasonable adjustments (if any) may need to be made to assist Mr Sidhu in his return to work.
(f)In your opinion when do you believe Mr Sidhu is likely to have a capacity to perform his full pre-injury duties?
(g)Are there any barriers which may affect Mr Sidhu’s future working capacity?
On 18 August 2020, Dr Motaman provided a response to question 2.2 in the following terms:
1:MEDICAL OPINION: Mr Sidhu is currently mental(l)y stable and safe to perform his duty in Transport Operator role.
2/A:REASON OF CHANGE IN THE MEDICAL OPINION: As you are aware, he has been under medical/psychological treatment and as the outcome of all of these and as it was expected his mental health issues has improved.
2/B:Yes.
2/C:Please refer to the WorkCover certificate updated on 9/8/2020 under the treatment plan.
2/D:Probably 2-4 weeks.
2/E:Please make sure the safe work environment policies and procedure are followed and he has enough support to get to his usual working hours.
2/F:Hopefully after 4 weeks.
2/G:Currently NO.
Please do not hesitate to contact me if any more information is required.
Dr Kathryn Barker, Psychologist prepared a report dated 7 September 2020 in response to the medical questionnaire sent to her on 12 August 2020 which included her clinical observations of the Applicant between January – June 2020. Under the heading clinical observations (CB 521) she states amongst other things:
Mr Sidhu presented as a person with significant thinking and concentration, problems, prominent agitation and distress. He reported lack of sleep, that he was feeling withdrawn and isolated, had few if any close interpersonal relationships; indeed he reported that he felt more anxious and threatened by such relationships. He indicated that his social judgement was apparently fairly poor, having difficulty making decisions even about matters of little significance.
In the first couple of sessions with the psychologist in January and February 2020 Mr. Sidhu scored in the Worst-Dismal range on the five indicators of wellbeing on the Road to Recovery from Depression scale.
('The Road to Recovery from Depression' is a self rating scale.
Scores range from 0-10: where 0= None, Worst, Dismal; 1-3=Poor-Little, Disturbed, Pessimistic; 4-6 Moderate, Better, Fair, Neutral; 7-9=Adequate, Normal, Good, Bright; 10= Optimal, Great, Ideal, Best, Optimistic).
Similarly Mr Sidhu's scores on the DASS21 fell in the Moderate to Severe range for Anxiety. These scores did not improve significantly until July 2020 when his scores fell consistently into the Neutral-Better range of functioning on the Road to Recovery from Depression scale and also on the SASS21.
Mr. Sidhu told me that his obsessive thoughts and lack of sleep appeared to fluctuate with how sincere and genuine he felt his complaint (of racist language used against him at his workplace) was taken by Aldi Stores, his Union, and EML ( Insurance)….
In response to the question 2.2 Ms Barker stated:
2.2(a)Mr Sidhu told me that he was able to competently carry out his work duties prior to his work related Anxiety/Stress injury (30th June 2019 to September 2019). He now tells me that he feels much better and that he is able to return to his original Transport Operator role. He tells me that he has now changed in his thinking and feels ready to return to his work.
Mr Sidhu tells me that he is now fit to perform suitable duties.
2.2(b) No Restrictions (as part of Mr. Sidhu's return to work).
2.2(c) N.A.
2.2(d)Mr Sidhu reports that he no longer is affected by blackouts, attention and/o concentration and/or memory problems.
(Refer to Certificate of Capacity dated 30/8/20 that was later updated to 'No Limitations').
2.2(e) The Limitation is reduced hours (This is not a Restriction).
2.2(f) For the first 2-4 weeks.
2.2(g) Not at the moment.
As set out above, on 16 September 2020 the Respondent directed the Applicant to attend an assessment with OT Mr Marsh.
By email on 17 September 2020, the Applicant advised the Respondent that he did not consent to attending the assessment.
Following the Applicant’s refusal, the Applicant was given deadlines to provide his medical authority to attend an assessment on an additional five occasions:
(a)on 18 September 2020, the Applicant was directed to provide his medical authority by 5.00pm on 19 September 2020;
(b)on 21 September 2020, the Respondent directed the Applicant to sign the Medical Authority by 5.00pm on 22 September 2020;
(c)on 23 September 2020, the Respondent gave the Applicant until 5.00pm on 24 September 2020 to return his medical authority to attend the assessment;
(d)on 4 September 2020, after the Zoom Meeting on the same day with the Applicant, the Respondent extended the deadline for the Applicant to consent to attending the assessment to 11.00am on 25 September 2020; and
(e)on 2 October 2020, at a Zoom meeting with the Applicant, the Respondent directed the Applicant to return the medical authority consenting to his participation in the assessment by 2 October 2020.
A total of three meetings occurred between the Applicant and representatives of the Respondent in relation to the Applicant’s work capacity from August to October, being 12 August 2020, 24 September 2020, and 2 October 2020.
It is common ground between the parties that on each occasion, the Applicant was asked to provide his medical authority to attend an assessment of work capacity, and he was warned on each occasion of the consequences of non-compliance. On each occasion, the Applicant refused to comply.
On 5 October 2020, the Respondent confirmed that the Applicant had failed to provide a signed Medical Authority and gave notice of the termination of the Applicant’s employment. There were two relevant decision-makers in respect of the decision to terminate:
(a)Mr Travis Peters, Logistics Manager at the Respondent, who was responsible for the management of the Applicant’s return to work; and
(b)Mr Tahl Katz, who was Director of Logistics at the relevant time of dismissal and to whom Mr Peters reported. Mr Katz did not have any involvement in the management of the Applicant’s return to work, but met with Mr Peters about the Applicant’s case, and accepted Mr Peter’s recommendation to terminate the Applicant’s employment.
The Applicant tendered two reports by Associate Professor Damodaran, which indicated that he had work capacity: (see CB Exhibit A1). Notably, these reports were commissioned by and addressed to EML, the workers’ compensation insurer. The Respondent objected to the tender of these reports on the basis of section 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”). That section provides:
A person must not use information obtained under or pursuant to this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 except as authorised by or in respect of a matter or for a purpose arising under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958.
The Court received these documents into evidence on the basis that there was no argument that the documents would have been received into evidence if they had been subpoenaed. Given that the Applicant was self-represented, the Court determined that it was in the interests of justice and sensible management of the Court and parties’ time that they be accepted into evidence without the need for a subpoena to be issued and made rulings in relation to the use of those documents accordingly: see Rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The documents are plainly relevant to this proceeding as they were also relevant in the process leading to dismissal.
The Applicant’s employment was terminated on 5 October 2020.
APPLICANT’S CLAIMS AND EVIDENCE
At the final hearing, the Applicant gave oral evidence before the Court on 13 December 2022. He was unrepresented.
The Applicant pleads that:
(a)the Respondent took adverse action against him because of his exercise of workplace rights by making complaints against unreasonable and unlawful demands; and
(b)the Respondent took adverse action against him because of his physical and mental conditions pursuant to section 351 of the FW Act.
In the FBP claim filed on 22 March 2021, the Applicant claims the Respondent’s actions constituted unlawful discrimination against the Applicant on the basis of his previous mental health condition by reason of the Respondent:
(a)refusing to execute the Applicant’s return-to-work plan and insisting that the Applicant attend a Psychological Assessment of Capacity; and
(b)in circumstances where the Applicant had already attended the assessments and received the certificate of capacity to work.
The Applicant states that:
(a)he made several complaints against the Respondent’s unreasonable demands that he attend a Psychologist Assessment of Capacity;
(b)the complaints were in writing and contained in emails from the Applicant to Mr Peters and Ms Truong, the Respondent’s executive managers of logistics between 17 September 2020 and 23 September 2020; and
(c)such complaints constituted an exercise of the Applicant’s workplace right to be treated equally and without discrimination on the basis of his previous mental health conditions.
The Applicant claims that the Respondent’s actions in insisting that the Applicant attend a further assessment otherwise his employment would be terminated, constituted undue pressure in breach of section 344 of the FW Act.
The Applicant states that:
(a)the Respondent purported to dismiss the Applicant because of his refusal to comply with the Respondent’s demands that he attend a further Psychological Assessment of Capacity;
(b)such demands were unreasonable in circumstances where:
(i)a full certificate of capacity had been issued on 16 September 2020 which provided that the Applicant had no incapacity and was able to perform the same work duties performed prior to his mental injury; and
(ii)the Respondent was provided with recent report from the Applicant’s treating psychologist and psychiatrist respectively which provided that the Applicant no longer suffered from his previous mental health condition by no later than September 2020.
(c)in the premises, the Applicant was dismissed because he sought to exercise his workplace right to be treated equally and without discrimination on the basis of his previous mental health conditions.
A clear expression of the Applicant’s views on why he did not believe that he should be required to attend on Mr Marsh is set out in the notes of a meeting conducted between the Applicant and Ms Truong on 24 September 2020: (see CB536-537):
GS (the Applicant): I read on Mr Marsh and he is not a phycologist. He is corporate friendly.
I suggest to go to a different group so I can get a fair opinion hence I offer Aldi at that time I went to the assessor who prepared the report by EML. Why you want me to go to Mr Marsh? I am in the process of finding out whether you can request this and the answer in NO. I believe that EML are like Aldi. I have injury when I worked with Aldi. And Aldi had obligation to deal with it.
Whether they used EML or did it themselves and it was my obligation to participate in all attendances and meetings. EML has given me clearance, which means Aldi has accepted that I have a clearance and has a full capacity to return to work.
Back to Mr Marsh, I don’t believe the insurance broker (sic. meaning to refer to an occupational therapist) I don’t think he can do a psych assessment if they are not a phychologist.
Dr Barker gave the report which was really good. The other lady did an ok report but Mrs Barker was more in depth and clinical. There is still doubt based on examples aldi are referring too and I know what you are referring too in the email. I want to know what the sources were for the specific examples.
BT (Ms Truong): I will need to get clarification on the examples.
Thank you for expressing your thoughts on Mr Marsh and providing your thoughts on him. Aldi believe he is independent. Unfortunately, If we can’t use the EML report we will need a new assessment.
Aldi are still of the belief that it needs to be independent assessor and we will be sending you to Mr Paul Marsh.
At a further point in the meeting the Applicant stated:
At no point I am denying the request. I want my thoughts and opinions to be clear and open as I have a dispute. I have no other option to dispute it outside and elsewhere. I don’t have an option to. Im not denying doing a capacity assessment, I just don’t want Mr Marsh to do it. I feel it is unreasonable, but if you really wanted me to do it. This doctor (referring to IME Dr) is independent and is a psychologist and he can do it. I did it, I went through it with EML, and he has my history which he can help explore other options. If you need to stick to Mr Marsh. He is not a doctor and Mr Marsh I (he) will not be seeing me as he is not a doctor and is not psychologist. I am still doubtful on this whole process.
I was on the phone prior to this about who can the business ask to conduct this assessment. I haven’t received an answer to this yet. I do not feel it is not unreasonable for Aldi to do the assessment, however I am not going to go for this assessment if it is with Mr Paul Marsh as he is not a psychologist.
RESPONDENT’S CLAIMS AND EVIDENCE
The Respondent claims that the Applicant’s employment was terminated for the sole reason that the Applicant failed to comply with a lawful and reasonable direction for the Applicant to attend the medical assessment with Mr Marsh. The Respondent submits that each of Mr Peters and Mr Katz had a genuine belief that that direction that the Applicant attend for a further psychological assessment to be conducted by OT Mr Marsh was a reasonable and lawful direction on the grounds that they held the opinions that:
(a)there was uncertainty about the state of the Applicant’s health arising from the opinions that had been expressed in medical reports provided to the Respondent; and
(b)Mr Marsh was a suitably qualified person to conduct a Psychological Assessment of Capacity.
Medical Evidence
The Respondent asserts that the medical evidence put before the business in September 2020 did not adequately address whether the Applicant could perform the inherent requirements of his role, and what adjustments if any, need to be taken to mitigate against the risk of injury.
The Respondent submits that despite the Applicant’s GP certifying on 20 January 2020 that he had capacity for suitable employment, the Applicant was unable to return to work successfully in late January-early February 2020. It is noted he regressed to having no capacity after his unsuccessful attempt to return to work. It is submitted that it was reasonable for the Respondent to be concerned about the quality of his GP’s opinion and to seek further clarification.
On 4 June 2020, following months of incapacity, the Applicant’s GP, Dr Motaman, certified the Applicant as having capacity for suitable employment from 4 June 2020. The Respondent claims that no explanation was apparent from the certificate as to why the Applicant’s work capacity changed on 4 June 2020.
Mr Peters gave evidence in relation to this stating:
Based on the failed return to work and month of having no capacity, having issues with concentration and a range of other things, it seemed – it was – was sudden and almost miraculous.[4]
[4] Transcript page 52, lines 40-45.
On 12 August, the Respondent provided a questionnaire to Dr Motaman “to seek better information” so that it could “make better decisions about… an appropriate return to work plan”.[5]
[5] Transcript page 53, lines 45-47.
The Questionnaire asked inter alia why Dr Motaman’s opinion changed and that Dr Motaman, as of the certificate of capacity dated 30 July 2020, considered the Applicant’s attention and concentration to be no longer affected.
Dr Motaman’s response to the question was: (see CB 503).
as you are aware, he has been under a medical/psychological treatment and as the outcome of these and as it was expected his mental health issues has [sic] improved.
The Respondent claims this response fails to indicate what treatment had been effective and what made Dr Motaman form the opinion that the Applicant’s attention and memory were no longer affected.
The Questionnaire asked what restrictions should be imposed on the Applicant as part of his return to work. Dr Motaman’s answer specified “no restrictions” under the treatment plan referred to in the certificate of capacity dated 9 August 2020. However in the Questionnaire at 2.2(c), Dr Motaman stated “probably 2-4 weeks” in response to the question: (see CB 503).
Mr Peters provided evidence in relation to the report:
And what was your view of Mr Sidhu’s capacity to work after reading this report at the time?---Again, the information didn’t provide us with any detail – enough detail – provide me with enough detail to make… comfortable – make a decision I was comfortable with as far as writing a return-to-work plan. It didn’t provide us with enough concrete instruction or guidance around what steps we should take about staging the return to work. It was – the – there was a bit of vagueness around the period of how long it should take, commentary around the words like “hopefully after four weeks”. Yes, it just left me – it left me with more questions than answers about how I could structure an appropriate return-to-work plan.[6]
[6] Transcript page 54 lines 20-28.
The Respondent submits that Mr Peters’ evidence after reading Dr Motaman’s report was genuine, well-explained and should be accepted as credible. The Respondent states it was clear from his evidence that what he required was “concrete instruction or guidance” about formulating Mr Sidhu’s return to work plan. Rather, the Respondent submits that Mr Peters’ instead received vague commentary such as “hopefully after four weeks” and in a role that required the operation of heavy machinery, a vague indication of hope was insufficient assurance.
The Respondent also provided a questionnaire to Dr Barker, clinical psychologist, asking whether she agreed with Dr Motaman’s opinion as to whether the Applicant was fit to perform duties as a truck driver. Dr Barker stated in response: (see CB524).
Mr Sidhu told me that he was able to competently carry out his work duties prior to his work related Anxiety/Stress injury (30th June 2019 to September 2019). He now tells me that he feels much better and that he is able to return to his original Transport Operator role. He tells me that he has now changed his thinking and feels ready to return to his work.
The Respondent submits that this response from Dr Barker was the Applicant’s self-reported lay-opinion of his own ability to work and therefore is not medical opinion which could form a sensible basis for believing that he could be safely employed as a truck driver.
In response to question 2.2(d) of the Questionnaire, which asked for the recommendations of any reasonable adjustments (if any) that may need to be made to assist the Applicant in his return to work, Dr Barker stated:
Mr Sidhu reports that he no longer is affected by blackouts, attention and/or concentration and/or memory problems.
The Respondent submits the there was no evident attempt made by Dr Barker to ascertain whether the Applicant was subject to any mental health condition that may affect his ability to operate heavy machinery.
Mr Peters gave evidence that upon reading Dr Barker’s report that:
it did not have any actionable recommendations on how [he] could facilitate a return-to-work.[7]
[7] Transcript page 54, line 41.
The Respondent submits that given the Applicant’s unsuccessful history of attempting to return to work, and the lack of clarity in Dr Motaman and Dr Barker’s responses, it was reasonable for the Respondent to seek additional information.
Lawful and Reasonable Direction
The Respondent asserts that the direction for the Applicant to attend Mr Marsh for a medical examination is both lawful and reasonable as it was within the scope of the employment relationship. OT Mr Marsh proposed to conduct the examination was instructed to give his opinion on the ability of the Applicant to perform the inherent requirements of his role. Mr Marsh was also asked about the existence of any restrictions, potential risks if the Applicant were to return to his pre- injury duties and any reasonable adjustments to accommodate the Applicant’s return to work or to mitigate risks.
The Respondent submits that the direction was reasonable in that:
(a)as at October 2020, the Applicant had been absent from work for around a year and had been consistently certified as having no capacity to work, with the exception of a few periods;
(b)the Applicant’s mental health condition had affected his attention/concentration, and memory. He reported fatigue, lack of concentration, and “blackouts to the point where I did not know why I was where I was on the Road”: (see CB page 522);
(c)the Applicant’s pre-injury role involved the operation of trucks, where his own safety and the safety of his colleagues and the general public would be of paramount concern;
(d)the Applicant had a history of attempting, but failing to return to work, despite clearance from his treating medical practitioners. Specifically, in late January-early February 2020, the Applicant attempted to return to work in circumstances where his GP had certified him as having capacity for suitable employment, and he was unable to complete even a full shift. In these circumstances, it is felt that it was reasonable for the employer to have doubts about the quality of the medical evidence; and
(e)the state of medical evidence – in the absence of a medical examination – was not sufficient for Aldi to be satisfied that the Applicant could perform the inherent requirements of his role.
The Respondent says that the direction to attend the assessment was a lawful and reasonable direction in circumstances where the Respondent allegedly had concerns with:
(a)Ms Barker's, Psychologist, psychological report and response to the medical questionnaire dated 7 September 2020;
(b)Dr Motaman's, General Practitioner, sudden change of medical opinion;
(c)Dr Motaman's medical questionnaire response dated 18 August 2020;
(d)the conflicting certificates of capacity provided by the Applicant in August and September 2020;
(e)previous comments made by the Applicant to his colleagues about how he suffered anxiety and that he was feeling fatigued;
(f)the health and safety of the Applicant, its employees and the public at large, being road users; and
(g)its inability to rely on medical assessments/information provided by the Applicant by reason of the operation of section 588 of the WIRC Act.
Appropriate Choice of Independent Medical Expert
The Respondent submits that the choice of Mr Marsh, an occupational therapist, to conduct the psychological assessment of capacity, was appropriate having regard to the skillset and experience of a qualified OT. The Respondent asserts that the questions asked of the OT are matters that are within the competence and expertise of an OT.
Pursuant to section 144 of the Evidence Act 1995 (Cth), the Respondent submits that the Court should take judicial notice that an OT is qualified to conduct a psychological assessment of capacity. Alternatively, the Respondent states such a conclusion can be verified by reference to documents the authority of which cannot reasonably be questioned, having regard to the following:
(a)occupational therapy is a degree-based health profession, regulated by the Australian Health Practitioner Regulation Agency (“AHPRA”), OT enables people to participate in meaningful activities, such as self-care, work, volunteering, and participating in hobbies, interests and social events;
(b)OTs are trained in mental health and psychology. Accredited Bachelor of Occupational Therapy degrees offered by Australian Universities include mental health and psychology subjects both as part of the core and the elective curriculum;
(c)as a matter of common knowledge, the OTs provide mental health services. Medicare funds OTs to provide focussed psychological strategy services as a part of a GP Mental Health Treatment Plan; and
(d)according to Occupational Therapy Australia (the peak professional body representing OTs in Australia), OTs are “are a critical part of the Australian mental health workforce. Mental health interventions are at the core of occupational therapy practice and occupational therapists work across all areas of our mental health system.” Despite this, the role of OTs in mental health care is ‘poorly understood’.
The Respondent submits that Mr Marsh was asked to assess capacity. Issues of capacity and function are matters which can properly be asked of an OT (as opposed to diagnosis or prescription of medicinal treatment, which would be matters for a clinical psychologist or psychiatrist). Accordingly, the Respondent submits Court should find that Mr Marsh was appropriately qualified to conduct the assessment.
The Respondent submits that the direction issued to the Applicant to attend a medical examination was both lawful and reasonable.
LEGISLATIVE FRAMEWORK
Section 340 of the FW Act provides that a person must not take adverse action against another person because the other person has exercised a workplace right. Section 340(1) provides as follows:
(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 has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
For the purposes of section 340(1) of the FW Act, a ‘workplace right’ is defined in section 341 of the FW Act. The Applicant alleges the he exercised a ‘workplace right’ pursuant to section 341(1)(c)(ii) of the FW Act being a complaint in relation to his employment by making complaints about what he says are unreasonable and unlawful demands made to him by representatives of the Respondent to seek further assessment by a medical professional of his capacity to work.
The circumstances in which ‘adverse action’ is taken by an employer against an employee is outlined in Item 1 in section 342(1) of the FW Act:
(1) [Adverse action is taken by] an employer against an employee [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.
Further, section 361 of the FW Act provides that:
(1) If:
(a) in an application in relation to a contravention […], 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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In considering whether the Respondent has displaced the presumption in section 361 of the FW Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] HCA 41. Relevantly, these authorities establish that:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
CONSIDERATION
The primary issue in this matter is whether the Applicant was dismissed from his employment for a reason prohibited by part 3-1 of the FW Act. For the Applicant to obtain judgment in his favour, the Court must be satisfied that:
(1)the Respondent took adverse actions against the Applicant; and
(2)the Respondent took adverse action for a prohibited reason(s).
There is no dispute that the Respondent took adverse action against the Applicant in terminating his employment. The question for the Court is whether the decisions makers made the decision maker made the decision to terminate the Applicant’s employment because he had made complaints about attending on the OT.
Mr Peters’ gave evidence of the reason for terminating employment:
And what was your reason, finally, for terminating employment?---Just essentially failing to comply with a – with a legal request. We had attempted to, on several occasions over a – over a few weeks – or more than a few weeks to get to this stage. And at each step I felt frustrated at a barrier put up to try and just to prevent ..... being able to take the step and get some information we could act on. And so I felt that there was no – there wasn’t going to be a positive outcome with continuing the employment relationship.[8]
[8] Transcript page 58, line 30.
Mr Katz also gave evidence as to the decision-making process in terminating the Applicant’s employment:
And prior to the dismissal decision, did you and Travis talk about – what was the decision-making process between you and Travis? You say that you made the decision in consultation with him. What was that consultation?---The consultation was a verbal discussion around the evidence and us going through it. And talking through the risks associated with bringing someone back on the basis of having a concern around their capacity and whether the capacity is clear. And we could return them to work based on that capacity.[9]
What was your reasons for the decision to terminate Mr Sidhu’s employment?---The reason was relating to not following a reasonable instruction. So we requested that Mr Sidhu go and see the occupational therapist, Paul Marsh. And we requested – I think, we tried verbally. We definitely did so multiple times in writing. And there was refusal to do so. And on the basis of not following a reasonable instruction, we terminated employment.[10]
[9] Transcript page 73, lines 41-47.
[10] Transcript page 74, lines 1-6.
No issue was taken by the Respondent that the complaints made by the Applicant about being required to attend Mr Marsh was the exercise of a workplace right for the purposes section 341 (1)(c)(ii) of the FW Act.
The issues for the Court to determine were:
(a)whether that evidence and the evidence of the witnesses regarding the reasons why the Applicant was being asked to attend for the medical examination; and
(b)whether the reasons for termination discharge the reverse onus caste on the Respondent to prove that the reason to dismiss the Applicant did not include for a proscribed reason.
Neither Mr Peters nor Mr Katz positively swore that the reason did not include that it was because the Applicant was making complaints about attending on Mr Marsh. A failure to have a witness give evidence positively denying that the reasons included positive reasons was a factor in Gray J. deciding that a witness had not discharged the burden of proof in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [131]. However, Gray J. stated that the absence of an explicit denial was not the only reason for making that decision.
The absence of an explicit denial in this case by either of the decision maker does not mean that the Court must find that there evidence of why they took the action does not discharge the reverse onus.
As noted above, the focus of this proceeding is whether the decision to terminate the Applicant’s employment was made because the Applicant had made complaints about attending Mr Marsh. I find that the reason for termination was because that Applicant had refused the direction to attend on Mr Marsh not because he had made a complaint about this. The Applicant was given the opportunity to speak up in a number of meetings raising his concerns about the process and I can detect no evidence that there was any sanction imposed on him because he did that. It was the Applicant’s decision not to attend and thereby disobey what the decision makers rightly or wrongly thought was a lawful direction that I find was the sole reason for termination.
The focus of my enquiry is whether the decision makers considered that the direction to attend Mr Marsh was reasonable and lawful and whether the Applicant refusing to follow that direction was the sole reason for terminating his employment. I have considerable sympathy for the Applicant because many points that he raises regarding about direction to attend on an OT for the purpose of obtaining a Psychological Assessment of Capacity are entirely valid. He stated clearly that he was prepared to undergo that assessment as long as it was conducted by a qualified psychologist or psychiatrist. He was entitled to be dubious about being referred to Mr Marsh rather than a psychologist or psychiatrist and to suspect that by adopting that course the Respondent was embarking on a process to go behind the certificate of capacity and to find a means of not employing him. However, I accept that the decision makers believed that referral to an OT was an appropriate course of action.
I do not accept the submission made by the Respondent that I should take judicial notice of the fact that OTs who are not qualified psychologists or psychiatrists can provide a medical opinion which underlies a Psychological Assessment of Capacity. I do not make a finding that OTs have that expertise because it is not something that I have to decide. The Respondent attempted to put on evidence regarding the field of expertise of OT’s through submissions and I have not had regard to those submissions. The fact that OT’s may assist people with mental illness does not mean that they are qualified to diagnose mental illness or provide an opinion on psychological health.
Similarly, the Applicant is entitled to be sceptical about the position taken (apparently on legal advice) that the Respondent could not use the medical reports that had been obtained in relation to the Applicant by the WorkCover insurer or claims manager. Section 588 of the WIRC Act prohibits the use of information obtained under pursuant to that Act or predecessors as specified at [28] of this judgment.
The scheme of return to work arrangements for injured workers of employers in Victoria are dealt with in the WIRC Act; (see part 2 and 4 of that Act). Whilst the matter has not been fully argued, I find it hard to understand why the documents produced in the WorkCover process regarding the Applicant’s capacity to return to work when he was still employed would not be relied upon or used by him in relation to return to work arrangements as those matters arise under the WIRC Act.
The Applicant may well have had a strongly arguable claim under the unfair dismissal provisions of the FW Act being that there was no valid reason for the termination because the direction which formed the basis of a valid reason was not reasonable or lawful. That is not a claim I am able to determine under the adverse action provisions of the FW Act.
I do find that the decision makers did believe that the referral to the OT was the appropriate course to take and that the genuinely believed that an OT had the training and experience to provide the opinion about the Applicant’s capacity for work as a driver of heavy vehicles and the steps that might be implemented as part of a return to work.
The reasons for asking for more details and clarification from the respective medical professionals regarding the capacity of the Applicant to return to work as a heavy truck driver were reasonable and sensible. The Applicant had been off work for a lengthy period with stress and anxiety to a severe extent. He had previously attempted a return to work which was unsuccessful. His stress and anxiety had affected his ability to sleep. These are all good reasons why an employer of a driver of heavy trucks would want to ensure that a recently incapacitated driver was fit for duties where the reports provided did not make that clear or alternatively did not provide a coherent reason for explaining why an employee who had been so severely affected by mental health issues in about June was fully fit in about August.
Discrimination
The Applicant also pleads that Respondent took adverse action in breach of section 351 of the FW Act by dismissing him from his employment his physical and mental conditions.
I accept that the only reason for dismissal was the Applicant’s failure to comply with what the Respondent believed was a lawful and reasonable direction in order to determine whether the applicant was able to fulfil the inherent requirements of the position that he was employed to perform. Subsection 351(2)(b) of the FW Act provides that section 351(1) does not apply to action that is “taken because of the inherent requirements of the particular position concerned.”: See X v Commonwealth [1999] HCA 63 at [31] and [35].
Claim of breach of section 344 of the FW Act by use of Undue Influence or Undue Pressure
The Applicant’s claim includes an allegation that the Respondent breached section 344 of the FW Act by exerting undue pressure on the Applicant in forcing him to go for a further medical assessment. The Respondent submits that this claim is untenable on the statutory language.
Section 344 of the FW Act deals with the exertion of undue influence or pressure in relation to an employee’s decision on whether to make an agreement or arrangement under the NES, a modern award or enterprise agreement, to agree to or to terminate an individual flexibility arrangement; to accept a guarantee of annual earnings or a deduction from salary.
Section 344 of the FW Act provides that:
Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
The Respondent submits the direction to attend medical assessment is plainly not a matter addressed by this section.
Given that none of the conduct that has been raised in this proceeding by either party relates to any of the matters in section 344 of the FW Act, this claim must fail.
CONCLUSION
For these reasons the Court will make an order dismissing all applications.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 5 April 2022
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