Stephen King v Crane Enfield Metals Pty Ltd T/A Crane Copper Tube

[2014] FWCFB 4103

[2014] FWC 1522 [Note: An appeal pursuant to s.604 (C2014/3626) was lodged against this decision - refer to Full Bench decision dated 20 June 2014 [[2014] FWCFB 4103] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen King
v
Crane Enfield Metals Pty Ltd T/A Crane Copper Tube
(U2012/9215)

COMMISSIONER ROBERTS SYDNEY, 5 MARCH 2014

Application for unfair dismissal remedy - workplace injury - ability to perform the inherent requirements of a job.

[1] This decision concerns an application lodged on 25 July 2012 by Mr King pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in relation to the alleged unfair termination of his employment by Crane Enfield Metals Pty Ltd T/A Crane Copper Tube (Crane or the Company).

[2] The matter was set down for arbitration hearing in Sydney on 30 and 31 May 2013. Directions were issued for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 6 May 2013. Final written submissions were not concluded until 9 October 2013.

[3] At the hearing Mr King was represented by Mr P King of Regis Industrial Relations and Crane by Mr A de Wynter of The HR Department. Mr King and his wife, Mrs S King, gave sworn evidence for the Applicant. Ms M Gill, Mr S Hawken, Mr T Reynolds, Mr H Hatzikiriakos and Ms E Wilson gave sworn evidence for the Company.

Background

[4] Mr King was employed by Crane for a little over 18 years. He suffered a workplace injury in July 2009 to his left elbow while he was operating the Number One Draw Bench in Mill 1. Mr King then underwent medical treatment and surgery and was on light duties until he was placed on paid ‘garden leave’ on 8 September 2011. He was dismissed by Crane on 12 July 2012 on the ground that he could not perform the inherent requirements of any job at Crane. Mr King disputes that assessment and maintains that he could have performed other useful work and that the Company dismissed him to avoid the payment of redundancy benefits.

Evidence

Mrs King

[5] Mrs King submitted a witness statement 1 but was not required for cross-examination. Mrs King’s witness statement relevantly said that she attended the meeting on 12 July 2012. Her evidence in relation to that meeting was in line with that of her husband. In particular, Mrs King supported Mr King’s evidence that he was not told at the meeting during which his employment was terminated that the termination was due to his inability to perform the inherent requirements of his job.

[6] “Stephen was prevented from trying to explain that there were still machines that he could operate and that he had never been given the opportunity to show this, no assessment was ever made to determine if Stephen could still operate the machines. It appeared to me that all Cranes wanted to do was to terminate Stephen’s employment that was the agenda they had adopted and they were not prepared to take into consideration any other factors or listen to Stephen, the termination of Stephen’s employment was their priority.”

Mr King

[7] Mr King gave sworn evidence and submitted a witness statement 2. In his witness statement, Mr King said that he was employed by Crane for a little over 18 years, from March 1994 until his employment was terminated at the initiative of Crane on 12 July 2012. At the time of his dismissal, he was employed as a Production Operator/Maintainer classification c10 PE3. That classification relates to a qualified Fitter who is working as a Production Operator/Maintainer and who is multi-skilled in operating most machinery at Crane and is able to train other persons to operate machinery. During the entire period of his employment, he worked in Copper Mill 1 and Copper Mill 2. His employment was governed by the Crane Enfield Metals Pty Limited Penrith Plant AWU Certified Agreement 2011-2014 (the Agreement).

[8] On 12 July 2009, he suffered a workplace injury to his left arm which was followed by surgery in 2010 on two occasions.

[9] Mr King went on to say that on 8 September 2011 Mr Hawken requested that he attend his office and when Mr King requested a support person he was told that he did not need one. Mr Hawken then placed him on ‘garden leave’ effective that day. “I was taken back by the fact I was being placed on garden leave as throughout the whole of the period of my injury I was on light duties and Crane made no attempt whatsoever to assess me on the machines I was competent and skilled in operating.”

[10] Mr King was told that he should attempt to retrain himself and that his position would be reviewed in July 2012. Mr Hawken did not reply to a question asked of him by Mr King as to why he was not allowed to use other machines rather than being assigned to light duties. He asked about a store room position but was told that it was not a permanent job. Mr King had previously been assigned to such work but was told by Mr Hawken that the Company was seeking to retrench employees and said words to the effect of “don’t worry we will look after when the retrenchments commence.” The person who was performing the store room duties at that time was still employed by Crane at the date of hearing.

[11] ”From the commencement of the garden leave 8 September 2011 to the 12 July 2012 being the date of termination I heard nothing from Cranes not even a telephone call to see how I was going, or to enquire if the injury to the left arm was improving. I firmly believed that Cranes had hung me out to dry.”

[12] Mr King went on to dispute the alleged claims by Crane that a Rehabilitation Plan had been developed in consultation with himself to allow him to take up employment with another employer. “I was simply told that if I didn’t agree with it that was my bad luck as they would have my Workers Compensation payments stopped and I would not receive any benefits at all.”

[13] In summary, Mr King went on to say:

● That on 11 July 2012, he was telephoned and told that Mr Hawken wished to see him the next day. On 12 July 2012, he attended Crane’s offices with his wife as his support person. Present were Mr Hawken and Mr Hatzikiriakos.
● That discussion with Mr Hawken and Mr Hatzikiriakos ensued in relation to Mr King’s workplace injury.
● “On several occasions I attempted to advise Mr Hawken that I had no workplace assessment undertaken and that there were a significant number of machines I could still operate but had never been provided with the opportunity to do so. Mr Hawken failed to acknowledge this fact. Mr Hawken’s main focus was on terminating my employment that day.”
● That Mr Hawken terminated his employment on 12 July 2012 and advised him that the necessary paperwork would be sent to him by mail and his entitlements paid into his bank account.
● That he disputed Crane’s allegation that he was informed on 12 July 2012 that his employment was being terminated because he could not perform the inherent requirements of his job. He did not find this out until the Company filed its form F3 with the Commission.
● That he never received a letter of termination and the Employment Separation Certificate supplied to him was “deceptive and misleading in that it does not state that I could not perform the inherent requirement of my job.”
● That Crane is part of the wider Fletcher Group and he could have been assisted in obtaining alternative employment within the Fletcher Group. He heard nothing from Ms Wilson in that regard.
● “For the month June 2012 (prior to my termination) there were a number of positions available within the Fletcher Group that I was suitably qualified for and Ms Wilson should have made these positions known to me, she failed to do this.”
● “There are a significant number of the machines you have to operate using your right hand there is minimal use of the left hand and this is a crucial factor that Cranes should have provided serious consideration to before terminating my employment. Cranes management failed to recognise and appreciate that most of the machines are operated right handed and therefore can still be operated by me.”
● That other employees have returned from extended ‘garden leave’ and were then transferred to an area different to that which they had worked in prior to their injury.
● That the day before he was dismissed, another employee who had been on light duty was retrenched and paid a redundancy payment.
● “I believe that for whatever reason my employment was terminated by Cranes on the pretence that I was unable to perform the inherent requirements of the position in order to avoid having to make a redundancy payment of 54 weeks to me.”
● “I believe that in all honesty I should have been offered a redundancy and but for the workplace injury I would have been one of the employees offered a redundancy.”
● “The termination of my employment was harsh because it has placed me and my family in a severe financial situation. I find myself unemployed because Cranes proceeded to terminate my employment without carrying out any assessment whatsoever to determine if I could perform the inherent requirements of my job.”
● That the termination of his employment was unjust because it was taken without considering all the facts.
● That the termination of his employment was unreasonable because he was not able to make any informed response “and was denied the opportunity to show cause why my employment should not be terminated.”

[14] In his supporting oral evidence, Mr King said that he sustained his workplace injury whilst using a copper tube machine known as the Number One Draw Bench. 3 He had worked on that machine for some ten years.4 Mr King went on to say that he is left hand dominant.5

[15] Mr King further said that prior to going on ‘garden leave’ and prior to the meeting on 12 July 2012, he was never given the chance to operate any machinery although he was capable of doing so after his injury. 6 Mr King’s oral evidence went on in considerable detail concerning his medical condition and his ability to operate a number of machines at Crane. Mr King maintained that he could have returned to unmodified pre-injury duties.7

[16] In cross-examination, Mr King maintained that when he went on ‘garden leave’ he was never told that he could obtain a further medical certificate allowing him to return to normal duties. Crane never told him that they wanted another medical certificate from him. 8

[17] In further cross-examination, Mr King:

● Said that he was never informed of workers compensation procedures “or trying to get back to work or get another doctor’s certificate”. 9
● Agreed that he could not mow his lawn at home and had to give up playing golf due to pain. 10
● Said that he had given away his motorcycle as he is no longer able to ride it.
● Said that he had worked with the rehabilitation provider during his ‘garden leave’. 11

[18] Nothing of significance to my determination of his matter arose in re-examination.

Ms Gill

[19] Ms Gill submitted a statutory declaration and it was entered into evidence 12. Ms Gill’s statement was that she is a Director and Principal Consultant of Keystone Professionals which provides services in the areas of Injury Management and Workplace Health & Safety. Keystone Consultants “have extensive industry and clinical experience in Injury Management and WH&S.” Her personal qualifications and experience were set out as an attachment to her witness statement13. I have paid regard to that material.

[20] Ms Gill’s evidence went on to deal with an assessment of Mr King which occurred in February 2013. I have again paid regard to that material.

[21] Ms Gill was not required for cross-examination.

Mr Hawken

[22] Mr Hawken gave sworn evidence and submitted a witness statement 14. It was his statement that he has been employed by Crane for over ten years and has been Manufacturing Manager for approximately seven years. He is a qualified Electrical Engineer with a Masters degree in Business and Technology.

[23] Mr Hawken’s statement went on to deal with the workplace injury suffered by Mr King in July 2009. He said that following the injury, Mr King continued working and attending his doctor for treatment but his situation did not improve and he underwent surgery during 2010. An Injury Management Plan was implemented in May 2010 after Mr King returned to work post surgery. “The Plan sets out very limited tasks that Stephen is able to carry out, places a lifting restriction of 5 kilograms on what he can lift and stops his operation of the crane. In view of his medical restriction, Stephen is given some light administrative duties which involve little physical activity.”

[24] Mr Hawken further said that the medical restrictions made it difficult to find him “suitable work and productive work” which did not cause him pain. During most of 2010, medical reports indicated that Mr King should avoid using his hands because of chronic elbow pain. After further surgery, Mr King returned to work in January 2011 with a number of restrictions, including no crane work, no gripping with the left hand and no work on machines. “During this period Stephen is very keen to get back to his pre-injury duties and is frustrated at his lack of progress and how slowly the doctor/rehabilitation provider are willing to increase his restriction limits.” The restrictions on Mr King’s work activities were somewhat relaxed in March 2011 but in May of that year, Mr Hawken became aware of a report from Mr King’s surgeon stating that he “is not going to get any better and recommended a change in occupation.” At this time, Mr King was reporting consistent elbow pain and difficulties in performing assigned tasks. Accordingly, the Company recommended that Mr King seek a change in occupation and organised a functional and vocational assessment of him.

[25] In June 2011, the restrictions on Mr King’s work were further increased and he was restricted to office work and quality assurance checks only. The functional assessment was completed in August 2011 and it recommended that Mr King was only capable performing light work involving very limited repetitive use of his left arm.

[26] Around July/August 2011, the assessment and the treating doctor’s recommendations were discussed with Mr King and “he understood the recommendations from all areas were that he would never get back to a useful role at [Crane] and he needed to consider retraining for a new role within another field.” Mr King was keen to start retraining and to seek work outside the Company. “I said I would look into the possibility of giving him paid leave so he can spend full time on retraining and job seeking ... I believe [Mr King] was looking forward to this prospect.”

[27] Mr King’s last day at work was 8 September 2011 and he then proceeded on paid leave to allow him to focus on retraining and finding a new job. Mr King raised no objections and did not argue that he could perform any useful work for Crane. “I discussed with Stephen King that this was a unique opportunity over the next 9 months to get as much training as he can and to look for a new job as this was not eating into his workers compensation entitlements and that he needed to make the most of the opportunity, which he said he would.”

[28] It was understood by everyone that if Mr King could not find another job, then his employment would be terminated. This was not raised specifically with him but Mr Hawken believed that Mr King, who had been a union delegate in the past, understood “the process and the consequences of not finding alternative employment.” During the period from September 2011 to July 2012, Mr Hawken had limited contact with Mr King but received updates on his progress from Ms Wilson who in turn received regular updates from the rehabilitation consultant. Mr King continued to have issues with his left arm and Crane provided him with a laptop computer to prepare his course material for a six month TAFE course.

[29] Mr Hawken’s evidence went on to set out the events of the meeting with Mr and Mrs King on 12 July 2012. “After some further general chat I said ‘You know what we are here for, but I need to tell you formally that due to the views of your treating doctor, surgeon and rehabilitation coordinator that you will never be able to return useful employment at [Crane], you are being terminated as of this day.”

[30] “At no time during the meeting or at the conclusion of the meeting was there any objection from Stephen King or any argument that he could carry out meaningful duties or operate any of the machines at [Crane]. There was no additional evidence presented at the meeting or after the meeting or any argument that his condition and his restrictions had in any way changed. I believe that we gave Stephen King ample opportunity to present his views at the meeting. At the end of the meeting Stephen King shook our hands and said goodbye. At no time was redundancy discussed or raised. It was quite clear that the termination was on medical grounds due to his workers compensation injury and subsequent inability to perform his duties.”

[31] Mr Hawken went on to say that he based his views on available medical opinion and Mr King’s “inability to carry out any modified duties, even simple created duties without experiencing pain.” Mr King was involved in all parts of his rehabilitation and did not raise any argument about his alleged capacity to perform other productive duties at Crane until after his termination. “That argument I believe was motivated by his disappointment that he did not receive redundancy pay rather than an argument based on any evidence that he could carry out meaningful work at [Crane].”

[32] Crane has made several employees redundant on the basis that the work they were doing was no longer to be done by anyone. All of those redundancies occurred in the Mill 2 work area. No redundancies occurred in the Mill 1 area where Mr King worked.

[33] No other persons on Workers compensation were given redundancy. Mr King’s employment was only terminated “after 3 years of attempted rehabilitation (and 9 months of paid leave to retrain and job seek).”

[34] In cross-examination, Mr Hawken said that a comprehensive job analysis or a functional workplace assessment was not undertaken in relation to Mr King. 15 Mr Hawken was then asked: “Why wasn’t a functional workplace assessment undertaken?” and said: “Because it wasn't deemed necessary. Through the evidence that we already had from two doctors, from the rehabilitation coordinator - who is extremely experienced and through the natural process of him working with Stephen in the return-to-work he is doing that process anyway - his understanding what Stephen's limits are, he knows the machines, and our own experience and Stephen's own comments. He was incapable of doing the lightest stuff we had.”16

[35] Mr Hawken went on to say that Mr King proved to be incapable of performing “the lightest work in the place that we could find to see if he could progress up. He was incapable of doing that.” 17 He went on to say that Mr King was only capable of doing paperwork and could not have performed work as storeman.18

[36] Mr Hawken was asked: “Do you think Mr King was fairly treated?” and said: “Yes. I think Stephen was very fairly treated. He probably got more fair treatment than many others in the business because we very rarely give people that opportunity to get nine months of paid leave to go and re-job train. So, yes, he was more than fairly treated, in my opinion.” 19

Mr Reynolds

[37] Mr Reynolds gave sworn evidence and submitted a witness statement 20. Mr Reynolds’s statement was that he has worked in the field of occupation rehabilitation since 1995 and holds a degree in psychology together with a graduate diploma in rehabilitation counselling and a graduate diploma in ergonomics. He has dealt with Crane for some ten years in relation to the rehabilitation of injured workers and has undertaken numerous workplace and ergonomic assessments and developed return to work plans on behalf of Crane. The services he provides to workers must comply with the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Act 1987.

[38] In July 2009 Mr King reported a left elbow injury which led to an initial rehabilitation and workplace assessment being carried out. Mr King’s nominated treating doctor assessed him as having a significant injury which would require specialised medical advice. Mr King was unable to return to work in his pre-injury position as this required him to lift up to 25 kilograms on an occasional basis and the constant need to use the tools which he was using when he suffered his injury. “As a result a suitable duties plan was developed for [Mr King] to perform administrative tasks and crane driver duties to allow the injury to heal at work and to comply with the medical advice from his Nominated Treating Doctor.” An initial rehabilitation plan was established with the aim of returning Mr King to his pre-injury duties.

[39] After two separate orthopaedic surgical procedures in 2010, Mr King continued with post-operative treatments including physiotherapy.

[40] Some six months after the second episode of orthopaedic surgery, Mr King’s nominated treating doctor indicated that it was unlikely Mr King would ever resume his pre-injury duties as the injury was permanent and he had reached maximum medical improvement. In consultation with Crane’s insurer, which had obtained its own independent medical advice, a new functional and vocational assessment was required to determine a new rehabilitation goal for Mr King. The conclusion was that Mr King could only perform light work. “Based on my knowledge of available positions/roles in [Crane] my view is that [Mr King] was not able to carry out productive and meaningful work with [Crane] which was consistent with his medical restrictions/condition.”

[41] “Allianz insurance were then informed by [Crane] in September 2011, that [Mr King]’s suitable duties were to be withdrawn and he was advised he would received section 38 NSW workers compensation wage benefits whilst undergoing vocational rehabilitation to assist him find suitable employment. At this time my involvement ceased with [Mr King] and he began working with Ms Hannah Green, Rehabilitation Counsellor, to establish a new vocational rehabilitation goal.”

[42] In cross-examination, Mr Reynolds said:

● That a job analysis was undertaken on the machine Mr King was using when he was injured. 21
● That from a functional assessment it was indicated that Mr King was suitable for light work only. 22
● That Mr King had mentioned to him some symptoms to his right arm as well as to the left. 23
● That a functional workplace assessment is the same thing as a job analysis. “You're looking for the functional physical demands of a worker performing their job. So, you look at the tasks. You could call it a task analysis, a job analysis or a functional workplace assessment. It can be the same thing.” 24
● That Mr King was frustrated by the failure of his first orthopaedic procedure and “definitely wanted to work”. 25.
● That he had met with Mr King’s nominated treating doctor. 26
● That in his experience “people with injuries of their dominant arm, it does take some time for them to be quite dextrous with their other non-dominant hand. It would be quite difficult, I would imagine, not only saying that he had the right arm symptoms, but also having to get the dexterity with the right arm, with the manipulation tasks involved.” 27

Mr Hatzikiriakos

[43] Mr Hatzikiriakos gave sworn evidence and submitted a witness statement 28. It was Mr Hatzikiriakos’s statement that he has worked for Crane for some 14 years and is a qualified Metallurgical Engineer. For the past two years he has been the Manager of Mill 1 and was responsible for Mr King when Mr King’s workplace injury occurred and for his subsequent rehabilitation.

[44] Mr Hatzikiriakos went on to say that in May 2011 he became aware that Mr King’s orthopaedic surgeon had stated that his medical condition was not going to improve and that another occupation should be considered by him. Mr Hatzikiriakos then started considering different types of work for Mr King outside of Crane. His view was shared by Mr Reynolds, Ms Wilson and Mr Hawken.

[45] “In the period from May to September 2011 [Mr King] stops doing any productive work for [Crane] as his work restrictions limit him to performing simple office work only. The focus is now on completing the TAFE Assessments so that training can be provided to up skill [Mr King] for other work and participating in ACCENT (Rehabilitation Provider) Functional and Vocational Assessments.”

[46] On 6 September 2011, Crane received a WorkCover certificate from Mr King’s treating doctor stating that he was fit for permanently modified duties with a lifting restriction of ten kilograms. Mr King was then offered paid leave to re-skill through TAFE and to find employment outside Crane. Mr King’s evidence on this and surrounding events was consistent with that of Mr Hawken. Mr Hatzikiriakos’s statement was also consistent with that of Mr Hawken in relation to the 12 July 2012 meeting during which Mr King’s employment was terminated.

[47] It was not until late July 2012 that Mr King raised the question of redundancy. On 23 July 2012, Mr King mentioned to Mr Hatzikiriakos that he could have driven a forklift or worked in a Tool Room for the first time: “I did not consider these requests realistic as he had experienced pain working in the Tool Room polishing tools and fork lift driving is relatively minimal performed by Remelt staff as part of other duties.”

[48] “I consider that [Mr King] was treated fairly and that his termination was based on the fact that he could not carry out meaningful/productive work for [Crane] consistent with his medical restrictions. I have based my views on the consistent medical opinion and [Mr King]’s inability to carry out any modified duties, even simple created duties without experiencing pain. In my opinion [Mr King] was involved in and consulted during all parts of his rehabilitation. I believe that he knew that if he was not able to find an alternative role outside of [Crane] that his employment would be terminated. [Mr King] was a Union delegate used to dealing with senior Managers of [Crane] so I find it difficult to understand that he would have been prevented from presenting a case that he was capable of performing productive duties. This was not an argument that [Mr King] used until after his termination. That argument I believe was motivated by his disappointment that he did not received redundancy pay rather than an argument based on any evidence that he could carry out meaningful work at [Crane].”

[49] Mr Hatzikiriakos went on to say that redundancies at Crane have only occurred on the basis that the work employees were doing was no longer to be done by anyone.

[50] In cross-examination, Mr Hatzikiriakos said:

● That Mr King had been working in Mill 1 for a few months prior to his injury in July 2009. He had transferred from the Mill 2 area where he worked for some eight years on the poly-lag number 3 machine. 29
● That he accepted the opinion and analysis provided by the rehabilitation provider. 30
● That it was not his role to examine the report from Dr Duckworth but to rely on the rehabilitation provider’s report. 31
● That Mr King had constantly said that he was in pain. 32
● That he believed that there were no suitable duties that Mr King could perform at Crane. 33
● That the Company tried Mr King out on using the crane but he experienced problems. 34

Ms Wilson

[51] Ms Wilson gave sworn evidence and submitted a witness statement 35. It was Ms Wilson’s statement that she has been Crane’s NSW Injury Management Occupational Health Coordinator managing injury associated with workers compensation claims since 2010. In that role, she was aware of the injury to Mr King in July 2009 and the subsequent chain of events. That evidence was consistent with the evidence of the other witnesses for Crane.

[52] “During the 10-11 months that [Mr King] was on paid leave I spoke to him on 3-4 occasions usually about training. Towards the end of the leave period he appeared to be frustrated and a bit angry in not being able to find another job. During the whole of the leave period [Mr King] never stated to me that he was now capable of working at [Crane] or that he should be given another go. As far as I am aware no evidence of any kind was ever presented to me or the workers compensation insurer that varied from the previous views and conclusions presented by his treating doctor or his surgeon. At the time that [Mr King] finished his leave period there was no evidence of any kind that suggested to me that [Mr King]’s medical condition or his inability to perform even suitably modified duties at [Crane] had changed or improved in any way.”

[53] Ms Wilson went on to say that a number of workers who have been injured have been able to be accommodated by Crane with permanently modified duties and that such assessments are made independently taking into account “medical opinion and experience with workplace rehabilitation on suitably modified duties.”

[54] “Based on medical advice from [Mr King]’s doctors, the Rehabilitation Provider and [Crane]’s own experience with [Mr King]’s inability to carry out suitably modified duties, I formed the view that Mr King’s employment with [Crane] should be terminated. I considered that [Mr King] was not able to carry out productive duties with [Crane] in view of his medical restrictions. Nothing I have seen since [Mr King] was terminated has changed that view. I consider the process followed by [Crane] was reasonable and fair and broadly consistent with the manner in which other injured workers are treated. If anything the 20 months paid leave that [Mr King] was given to train and find other employment was perhaps more beneficial than the normal practice. During the whole process I found Mr King to be cooperative, positive and eager to be rehabilitated.”

[55] In cross-examination, Ms Wilson said:

● That she did not know what a production operator/maintainer does. 36
● That she did not know how many machines Mr King could operate. 37
● That Accent carried out an assessment of the tasks at the work site. 38
● That she was not involved in the termination of Mr King’s employment. 39
● That the restrictions on Mr King “didn’t meet the inherent requirements of any of the roles within the ... Mill.” 40
● That it was not within her duties to decide what position would be offered to Mr King or not offered to him. 41
● That Mr King “made numerous comments at work about pain in the right elbow.” 42

Written submissions

Mr King

[56] Mr King filed a written outline of submissions prior to the hearing. 43 He also filed written closing submissions and a reply to the Respondent’s closing submissions together with submissions on remedy. I have paid regard to all of those submissions in their totality.

[57] “The applicant was highly skilled and competent to operate and maintain and can still operate and maintain post injury a significant number of the respondent’s machines which he details in his evidence.”

[58] Mr King went on to argue that Crane had a history of transferring injured employees from machinery that they were unable to operate due to their injury to other machines. Mr King was never offered this opportunity. It was Mr King’s genuine expectation that he would return to employment after his ‘garden leave’. The termination of his employment was decided “on inferences that could not reasonably have been drawn from material before the respondent, material that should have been obtained prior to the dismissal; for example a Workplace Assessment and the respondent asking its self the most obvious question are there still inherent requirements of the job that the Applicant could still perform?” In all the circumstances, there was no sound, defensible and well-founded valid reason for the termination of the applicant’s employment, based on the speculation that the applicant was unable to perform the inherent requirements of his position.

[59] The submissions went on to argue that Mr King did not have a genuine opportunity to be heard before he was dismissed. The decision to terminate his employment was made prior to the meeting with him on 12 July 2012. Crane also did not consider any other alternative to termination.

[60] “The applicant from the onset of this matter has forwarded the proposition that the circumstances of his dismissal was a calculated reason of the respondent that calculated reason being it is cheaper to dismiss the applicant rather than have him return to work only to be offered a retrenchment which he would have accepted.”

[61] The Applicant went on to submit that the medical evidence was “scant and significantly limited and did not show that he was unable to safely perform the inherent requirements of his position.” Mr King said that he was never given Dr Duckworth’s letter 44. He was therefore denied an opportunity to respond to its content.

[62] “The respondent’s contention that it was entitled to dismiss the applicant on the grounds that as a result of the workplace injury he could no longer perform the inherent requirements of his position the applicant submits that the respondent is wrong as there is no medical evidence supporting the respondents claim that it had a valid reason to terminate the applicants employment.”

[63] “The applicant submits his position is clear in that he could and still can perform the inherent requirements of the job. Even with the lifting restriction there were a number of machines and equipment that the applicant could use safely on an ongoing basis as has been shown throughout the whole of his evidence.”

Crane

[64] Crane filed an outline of submissions 45 prior to the hearing and subsequently filed written concluding submissions. I have paid regard to those submissions in their totality.

[65] Crane argued that Mr King suffered a workplace injury which had a permanent effect on his capacity to carry out normal activities both at work and at his home. His employment was terminated for a valid reason following a lengthy process of attempted rehabilitation assisted by the rehabilitation provider Accent over a period of some three years. “The process took account of Stephen King’s needs, physical limitations, involved him in discussions and decisions impacting him and gave him every opportunity to return to normal and meaningful duties with the Respondent. After 3 years of trying to return Stephen King to normal duties which included 10 months of paid leave so that Stephen King could undertake training to equip him to apply for different jobs with other employers, without success the Respondent felt that it had to take the final step of terminating his contract of employment.”

[66] In short summary, Crane submitted that it did everything it possibly could firstly to rehabilitate Mr King so that he could return to his normal duties and when this failed, providing him with an extended period of paid leave to assist him in retraining and obtaining another job. After some ten months of paid leave, the Company decided, on the basis of the medical reports and Accent’s report and advice, that Mr King would never be able to return to normal duties. Accordingly, it dismissed him on the basis that he could not perform the inherent requirements of any position at Crane.

Conclusions and Findings

[67] Section 385 of the Act provides:

“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[68] In Container Terminals Australia Limited v Toby 46, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”47

[69] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 48 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 reason 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 each treated fairly, ….”

[70] In the proceedings before me, both parties relied on a Full Bench decision in J Boag and Son Brewing Pty Ltd v Allan John Button 49(Boag). In that decision, the Full Bench said:

“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.” 50

[71] The Bench went on to say at paragraph [30]:

“In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.”

[72] I respectfully agree with the observations of the Full Bench in Boag and that decision has guided my consideration in this matter.

[73] During the period between the workplace injury and proceeding on ten months paid ‘garden leave’, Mr King was the subject of intensive efforts to rehabilitate him to a level where he could perform a full range of duties at Crane. It is conceded by the Company that he fully cooperated in that process. However, that full rehabilitation never eventuated. The Company then terminated his employment.

[74] The specialist who carried out the second orthopaedic procedure on Mr King’s left elbow wrote to Mr King’s nominated treating doctor, Dr Chow, in a letter dated 27 April 2011 51 in the following terms:

“I reviewed Stephen today in regards his elbow. It is two months since his last review. He has improved since his surgery but his elbow is not 100% and never will be. He finds he gets increasing pain after prolonged activities and lengthy shifts at work.

I believe he will always have a chronic problem with his elbow and he has to try to manage it as best he can. If he cannot manage he may have to consider changing occupations.”

[75] On 13 May 2011, Accent produced a Return to Work Plan 52. That Plan noted that Mr King was only able to perform suitable duties, restrict the use of his left hand, not lift any weight above ten kilograms and to work normal hours. The suitable duties were defined as administration duties, scheduling, Quality Assurance, Crane Operator (1-2 hours/shift), press/rag and tooling room/clean. There was a further notation that Mr King’s duties should be rotated “at least after each meal break”, that he not engage in prolonged gripping with his left hand and that he must limit his use of his left hand.

[76] On 22 July 2011 Accent produced a Functional Assessment Report 53 which noted under the heading “Current Symptoms”:

“ Constant low level pain in the left elbow, forearm and hand.

• Pain increases with hand use after a few minutes of activity



• Paresthesis (Tingling, numbness) and throbbing in left hand.



• Heat and redness around left elbow area after activity.

• Loss of power/grasp in left hand.



• Mild pain in the right elbow after activity (attributed by Mr King to repetitive strain).”

[77] The Functional Assessment went on to say that Mr King reported constant low level pain that was aggravated by holding or lifting with his left hand, grasping with his left hand, vibration and lifting items over ten kilograms. The Assessment went on to say that a Functional Capacity Evaluation had demonstrated that Mr King was capable of performing light work.

[78] Accent produced a Vocational Assessment 54 of Mr King on 5 August 2011. That report noted:

“Mr King reported he is not currently participating in any treatment programs. He advised that this consultation with Dr Duckworth had also ceased, however reported that he had been recommended to undergo a release surgery to his right elbow. Mr King reported that he has ‘chosen to deal’ with current pain symptoms, as he is not keen in undertaking further surgery. Mr King stated that he has been managing the pain in his right elbow for the past 18 months.”

[79] The Vocational Assessment went on to give a detailed analysis of Mr King’s skills etc. and his vocational options. It further noted:

“The Assessor has identified the following barriers to Mr King’s rehabilitation and Return to Work:

• Mr King’s reported left and right elbow pain and subsequent pain behaviours.



• Mr King is currently certified for part-time work.



• Mr King’s limited job seeking activities in the last 18 years.



• Mr King’s job seeking skills and resume need to be updated.



• Mr King’s reported keenness to remain employed by his pre-injury employer, Crane Enfield.”

[80] Dr Chow then issued a WorkCover Medical Certificate dated 6 September 2011 which said that Mr King “has reached maximum medical improvement and is fit for permanently modified duties ...” That certificate maintained the ten kilograms weight limited and noted “use of left arm as tolerated”.

[81] Accent produced a Rehabilitation Plan 2: Return to Work Different Employer on 4 October 2011 55. That document noted that Mr King agreed to a Return to Work Goal involving work outside Crane. The Plan noted the same “Barriers to Rehabilitation” as the Vocational Assessment.

[82] The WorkCover Certificate from Dr Chow was the latest direct medical assessment available to both Mr King and the Company when he met with the Company on 7 September 2011. From the totality of the evidence and materials available to me, I am satisfied that at that stage Mr King was aware that his injury had left him with a permanent disability and that that disability would prevent him performing duties for Crane of the type he performed until he was injured.

[83] Mr King was then placed on paid ‘garden leave’ and effectively ceased seeking further medical attention. At no time during the ten months between September 2011 and July 2012 did Mr King seek to return to work. Instead, he dedicated his time to gaining a qualification and seeking other employment. That other employment was not forthcoming. During his ‘garden leave’, Mr King corresponded by email with both Ms Wilson and Mr Hatzikiriakos on 14 November 2011 and 24 January 2012 respectively 56. In the email to Ms Wilson, he described himself as ‘broken’ and noted that he was “still finding that after minimal use im getting the usual ache stiffness and tingling, last week i started doing the cert iv and i struggled with the written component of the course, they facilitated me by allowing me to use a laptop and printing the work. During the last 2 months i have applied for 16 positions, i understand that i don’t have to disclose that im broken but 11 of them want a fitness test, this is making it hard of the 5 others they have asked for a percentage of injury so they can determine if i can do the job i applied for ...”

[84] In his email to Mr Hatzikiriakos, he asked that if a particular potential employer contacted him, “please don’t say im broken, if you could just say a lot of years of shift work and i want to have a different career path to try something new and challenging .. the job is in the forensic stores, light easy work so hopefully some thing comes from it .. could you please let shane know because this bloke will get in contact with him too.. and not mention the broken part..”

[85] After giving Mr King ten months of paid leave, the Company was in my view entitled to form the opinion that the time had come to end the employment relationship. It is to the Company’s great credit that it waited so long to do so when it could have acted much earlier on the basis of Dr Chow’s WorkCover Certificate of 6 September 2011. Events after the termination of Mr King’s employment, including any alleged ability to now resume employment with Crane, are irrelevant to my consideration of the question of valid reason.

[86] I must specifically reject the allegation from Mr King that the termination of his employment was the result of Crane wishing to avoid the payment of redundancy benefits. Firstly, there were no redundancies in Mill 1 and secondly, the Company’s behaviour in giving Mr King some ten months of additional paid leave, and even apparently providing him with a lawn mowing service, indicates to me clearly that Crane behaved as a good employer. What underlies Mr King’s application for relief is an enduring belief that if he could not obtain alternative employment, then Crane was under an obligation to make him redundant. In that regard, Mr King believes that he had been promised such an outcome. I do not accept that this was so. Mr King’s assertion that he could have performed useful work for Crane is belied by his evidence that his continuing disability preventing him from many everyday activities such as lawn mowing, playing golf and the riding of his motorcycle. Crane even supplied a laptop computer to Mr King as he was not able to write his TAFE assignments due to pain.

[87] All in all, I am satisfied to a high level of probability that Mr King embarked on his ten months paid leave in the knowledge that his employment with Crane was going to end.

[88] In instances where the evidence of Mr King conflicts with that of Mr Hawken and Mr Hatzikiriakos, I am satisfied that the evidence of the Company witnesses is to be preferred. I do not consider that Mr King has lied during proceedings but I believe that his evidence has been coloured by a belief that he was treated badly by Crane and that a promised redundancy was withheld from him. I accept further that the evidence of Mrs King was truthful as to her belief. The evidence of Ms Gill I also believe to have been truthful and accurate. I have no reason to believe that the evidence of Ms Wilson and Mr Reynolds was other than completely truthful.

[89] I therefore find that there was a valid reason for Crane to terminate Mr King’s employment on the basis that he was no longer able to perform the inherent requirements of his job or in fact any other job at Crane.

[90] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[91] In Byrne v Australian Airlines 57, McHugh and Gummow JJ of the High Court said:

“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.”

[92] In Parmalat Food Products Pty Ltd v Wililo 58, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 59

[93] The question of valid reason is dealt with above.

[94] It is clear that Mr King was notified of the reason for the termination of his employment by way of verbal advice on 12 July 2012 although he was not provided with a letter to that effect and I so find. From the totality of the evidence concerning the meeting on 12 July 2012, it does not appear that Mr King was denied an opportunity to respond to the Company’s conclusion that he was unable to perform the inherent requirements of his job. He knew that his paid leave was to be reviewed in July 2012 and must have known that ‘the writing was on the wall’ in relation to his continued employment by Crane. Crane should have told Mr King in advance what the purpose of the meeting was so that he could prepare any arguments that he wished to put. On balance, I find that Mr King was not given an adequate opportunity to present his argument against termination because he was not forewarned. However, I do not believe that anything Mr King could have put forward in the meeting would have changed the Company’s mind as it was acting on medical advice and advice from its Rehabilitation Provider and Mr King had not obtained any evidence to the contrary while he was on leave.

[95] The question of unsatisfactory performance does not relevantly arise and I do not consider that the size of Crane’s enterprise was a factor which was likely to have impacted on the procedures followed in effecting Mr King’s dismissal. On what is before me, I conclude that Crane had access to industrial relations advice.

[96] I have also taken into account a number of other factors. These include Mr King’s long employment history with Crane, his genuine attempts to rehabilitate and retrain himself, his attempts to find other employment, his future employment prospects and the economic and personal effects of the termination of employment on him.

[97] All in all, I am unable to find that Crane’s treatment of Mr King was harsh, unjust or unreasonable in all the circumstances of his dismissal. The workplace injury suffered by Mr King changed his life but that was not his fault or apparently the fault of Crane. There is no inference that Mr King was other than a skilled and valued employee of Crane. His dismissal was the inevitable result of his injury. No one can accuse Crane of acting precipitately in that three full years elapsed between when Mr King suffered his injury and when his employment was terminated.

[98] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[99] The application is dismissed. An order reflecting this decision is in PR548335.

COMMISSIONER

Appearances:

P King, for the Applicant.

A de Wynter for Crane Enfield Metals Pty Ltd T/A Crane Copper Tube.

Hearing details:

2013.

Sydney:

May 30, 31.

2013.

Final written submissions:

9 October 2013.

 1   Exhibit King 2.

 2   Exhibit King 3.

 3   Transcript PNs172-173.

 4   Transcript PN176.

 5   Transcript PN203.

 6   Transcript PNs289-290.

 7   Transcript PN939.

 8   Transcript PNs1096-1097.

 9   Transcript PN1111.

 10   Transcript PNs1131-1135.

 11   Transcript PN1157.

 12   Exhibit Crane 2.

 13   Appendix One to Exhibit Crane 2.

 14   Exhibit Crane 3.

 15   Transcript PNs1463-1464.

 16   Transcript PN1465.

 17   Transcript PN1466.

 18   Transcript PN1518.

 19   Transcript PN1541.

 20   Exhibit Crane 5.

 21   Transcript PN1663.

 22   Transcript PN1674.

 23   Transcript PN1686.

 24   Transcript PN1716.

 25   Transcript PN1741.

 26   Transcript PN1744.

 27   Transcript PN1757.

 28   Exhibit Crane 8.

 29   Transcript PNs1874-1879.

 30   Transcript PN1909.

 31   Transcript PN1910.

 32   Transcript PNs1948-1949.

 33   Transcript PN1954.

 34   Transcript PN1992.

 35   Exhibit Crane 10.

 36   Transcript PN2127.

 37   Transcript PN2130.

 38   Transcript PN2137.

 39   Transcript PN2150.

 40   Transcript PN2153.

 41   Transcript PN2157.

 42   Transcript PN2174.

 43   Exhibit King 1.

 44   Exhibit Crane 4.

 45   Exhibit Crane 1.

 46   Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.

 47   Ibid at para 15.

 48 (1995) 62 IR 371 at 373.

 49   [2010] FWAFB 4022.

 50 Ibid at [22].

 51   Exhibit Crane 4.

 52   Attachment 8 to Exhibit Crane 1.

 53   Exhibit Crane 7.

 54   Attachment 9 to Exhibit Crane 1.

 55   Attachment 11 to Exhibit Crane 1.

 56   Attachments 13 and 14 to Exhibit Crane 1.

 57 (1995) 185 CLR 410.

 58   [2011] FWAFB 1166

 59   Ibid at para 24.

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<Price code C, PR548334>