Timothy Waite v Alcoa of Australia Limited T/A Huntley Mine

[2018] FWC 6352

[2018] FWC 6352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Waite
v
Alcoa of Australia Limited T/A Huntley Mine
(U2017/13658)

COMMISSIONER WILLIAMS PERTH, 15 OCTOBER 2018

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Timothy Waite (Mr Waite or the Applicant) on 20 December 2017 under section 394 of the Fair Work Act 2009 (the Act). The respondent is Alcoa of Australia Limited T/A Huntley Mine (Alcoa or the Respondent).

[2] This matter was referred to the Commission as currently constituted on 8 February 2018 for determination.

[3] This matter was listed either for a conference or for hearing on a number of dates as listed below however on each occasion Mr Waite requested, and was granted, an adjournment of either the conference or the hearing.

23 February 2018 Conference

4 April 2018 Conference

14 June 2018 Hearing

[4] On 30 April 2018 Mr Waite filed his materials in support of his application including his statement of evidence, outline of argument and supporting documents. On 23 May 2018 Alcoa filed its materials in support of its application including a witness statement, an outline of submissions and supporting documents.

[5] On 22 August 2018 a further notice of listing was sent to the parties advising they were required to attend the hearing on Friday, 14 September 2018.

[6] The directions attached to the Notice of Listing required Mr Waite, if he was to request an adjournment, to provide by no later than 6 September 2018 a written medical opinion in support of this and directed him to advise any person providing such medical opinion that they may be required to attend the hearing to give evidence regarding their opinion. The directions also advised Mr Waite that he should not assume the hearing will be adjourned and is required to be able to proceed with the hearing if an adjournment request is denied and that he could attend the hearing by telephone if he wished.

[7] The directions also said,

“If Mr Waite does not attend the hearing his application may be determined by the Commission in his absence on the basis of the materials he and the Respondents have filed and after having heard the evidence of the Respondent’s witnesses and their submissions.”

[8] No adjournment request was made.

[9] On 9 September 2018 Mr Waite advised by email as follows,

“Dear Fair Work Commission

I will not be attending the hearing in person or by telephone.

Given my condition and other lies I have to try and sort out I feel it best you determine the case without me.

The fact they admitted they knew about my mental health and didn’t meet any of their legal obligations as my employer and breaking several laws by sacking me I feel there is nothing more that needs to be said.

It was unfair, unjust and plainly cruel.

I trust the right thing will be done by the commissioner.

Don’t be deceived by this company, they don’t care about anyone!

Regards,

Timothy John Waite.”

[10] The next day by email the Commission advised the parties that noting Mr Waite’s email of the previous day the hearing would proceed as previously notified.

[11] On Friday, 14 September 2018 at 10.00 a.m. the hearing proceeded as notified to the parties.

[12] Mr Waite did not attend the hearing.

[13] The Respondent’s representative advised the Commission that Mr Waite had attended District Court proceedings in person two days earlier on Wednesday, 12 September 2018.

[14] Since the hearing Mr Waite has enquired by email as to the outcome of the hearing, explaining that he understood it had proceeded in his absence.

The evidence

[15] Much of the evidence in this matter that is relevant is not in dispute.

[16] At the hearing of this matter Mr Nicholas Bacon (Mr Bacon) gave evidence, as was provided in his witness statement which had been served on Mr Waite. Mr Bacon is the Human Resources Manager for the Western Australian mining operations of Alcoa and has held that position since January 2016. He has worked previously for the Respondent in Victoria and altogether has worked for Alcoa for seven years.

[17] Mr Waite has worked in the mining industry since 2005 and has extensive knowledge and experience of operating diggers.

[18] In November 2013 he commenced work for Chandler Macleod, a labour hire contractor, as a casual truck driver at Alcoa’s Huntly Mine.

[19] Shortly after, he got a job directly employed by Alcoa as a casual employee.

[20] On 29 June 2015 he was offered and accepted full-time employment with Alcoa.

[21] The terms and conditions of Mr Waite’s employment were as prescribed by a contract of employment he signed on 26 June 2015 and the Alcoa World Alumina Australia W.A. Operations AWU Enterprise Agreement 2014 [AE407184] (the Agreement).

[22] By way of background Mr Waite says in his statement the following occurred.

[23] On 7 February 2016 Mr Waite was operating a Caterpillar 789 truck. Another employee was operating a 300 tonne Komastsu PC 3000. Mr Waite was sitting in the queue to be loaded by the Komastsu digger.

[24] Mr Waite’s statement says that when it was his turn to be loaded, he reversed in his truck and stopped when hearing the horn of the digger. He says that it was then that as he was reaching for his magazine to read that the bucket of the digger stuck the tray of his truck causing the truck to shudder and shake violently.

[25] His statement says that following the impact he felt a shock go through his body and then pain in his back and shoulder.

[26] Dispatch sent a supervisor Mr Terry White (Mr White) down to check on him.

[27] Mr Waite drove himself to the medic and he and was given ice, instructed to take nurofen and sent back to work.

[28] Mr Waite says he returned to work, but the pain continued for the rest of the day.

[29] On 9 February 2016 Mr Waite saw the work doctor, Dr Brian Rostin and reported to him that his lower back pain had subsided substantially, but the pain in his left shoulder was severe and persistent. Mr Waite says the doctor got him to do a series of movements which he could complete but not without sharp pain. Dr Rostin advised him that it was probably frozen shoulder caused by the sudden impact of the digger hitting the truck. He was instructed to take nurofen again and continue to work as normal.

[30] Mr Waite continued to work for several weeks following the incident, hoping that the pain would eventually settle down. After about five weeks, the pain had not subsided.

[31] After about five weeks of work, taking regular nurofen, persisting with the pain and hoping it would settle down, Mr Waite decided that was enough and called Mr White on the two way radio to book an appointment with Dr Rostin for when he was on the next shift to advise him that the pain was not subsiding and getting worse given the fact his job role has a lot of rigid movement.

[32] Shortly after this, Mr Waite says his shoulder froze up and he was unable to continue working.

[33] By including Mr Waite’s explanation above of what occurred I am not making a finding that this in fact occurred in the particular way Mr Waite explained and this is so because Mr Waite has not given his evidence under oath and Alcoa has not had the chance to cross-examine him on these matters of detail.

[34] Exactly what occurred regarding this workplace incident as will become apparent is not relevant to the determination of Mr Waite’s unfair dismissal remedy application.

[35] With respect to the evidence of Mr Bacon I accept his evidence which was given under oath and is unchallenged. Considering the evidence of Mr Bacon I find as follows.

[36] Between 7 February 2016 and 21 April 2016, the Applicant was:

(a) absent on unpaid personal leave (for various reasons) on 8 and 9 February 2016 and between 25 March – 6 April 2016; and

(b) absent on paid annual leave between 15 and 17 March 2016 and 14 to 20 April 2016.

[37] The Applicant was classed as being on unpaid personal leave from 21 April 2016 to the termination of his employment in December 2017.

[38] On or about 26 March 2016, the Respondent was provided with a WorkCover WA –FIRST certificate of capacity advising that the Applicant was “Unable to work for now…” and that the Applicant would be reviewed again on 31 March 2016.

[39] The Respondent self-insures for Workers Compensation and has a dedicated department that deals with Workers Compensation matters.

[40] On or about 31 March 2016, 7 April 2016 and 15 April 2016 the Respondent was provided with a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work for a series of periods that spanned 31 March 2016 to 10 May 2016.

[41] From around 14 April 2016, Mr Liam Smith (Mr Smith), Production Superintendent, attempted to make contact with the Applicant to arrange a meeting to discuss the Applicant’s ongoing absence from work because:

(a) the Applicant’s claim for Workers Compensation had been denied; and

(b) Mr Smith make sure, in the context of a claim for Extended Paid Sick Leave, that appropriate arrangements were put in place based on whether the Applicant was accepting of a prognosis that the Applicant would ultimately be able to return to work.

[42] Mr Smith tried to schedule a meeting with the Applicant on a number of occasions but was unsuccessful because the Applicant either failed to attend or advised that he could not make attend scheduled meetings.

[43] A letter was sent to the Applicant on 3 May 2016 to:

(a) provide a brief background of the Applicant’s absence;

(b) confirm that attempts had been made to arrange a meeting to discuss his absence from work;

(c) explain that the Applicant had failed to attend meetings that had been scheduled by Mr Smith or had otherwise advised that he could not attend;

(d) explain that the Respondent understood, based on then recent medical advice, that the Applicant had been capable of attending the scheduled meetings:

(e) instruct the Applicant to provide Mr Smith with dates and times that he would be available to attend a meeting at a convenient location; and

(f) warn the Applicant that a failure to comply with the instruction could lead to disciplinary action being taken against the Applicant.

[44] The Applicant did not respond to the letter of 3 May 2016.

[45] In or around May 2016, Mr Bacon and Mr Smith were made aware that the Applicant had advised of an intention to appeal the decision taken by the Respondent’s Workers Compensation department to reject his claim for Workers Compensation and that an initial conciliation conference had been scheduled for 19 May 2016.

[46] As a result of them being made aware of the progression of the Workers Compensation matter, Mr Bacon and Mr Smith took a decision to not take any further action at that time (even though the Applicant had not complied with the instruction given to him in the letter of 3 May 2016).

[47] On or about 11 May 2016, the Respondent received a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work from 11 May 2016 to 11 June 2016.

[48] On or about 23 May 2016, the Respondent received a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work from 23 May 2016 to 23 June 2016.

[49] On or about 23 May 2016, the Respondent received a medical certificate from the Applicant’s treating General Practitioner, Dr Shally Gupya which advised that the Applicant was unfit for work between 23 May 2016 and 23 June 2016.

[50] On or about 27 October 2016, the Respondent received a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work from 27 October 2016 to 30 November 2016.

[51] On or about 27 October 2016, the Respondent received a medical certificate from Dr Prathalingam which advised that the Applicant would be unfit for work from 30 October 2016 to 30 November 2016.

[52] Between May and October 2016, Mr Bacon identified that the documentation being supplied to the Respondent by the Applicant’s medical practitioners identified that the Applicant had moved from Waroona (which is approximately 1 hour away from the Myara minesite) to Denmark (which is in excess of 4 hours away from the Myara minesite).

[53] On or about 17 February 2017, the Respondent received a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work from 17 February 2017 to 17 March 2017.

[54] On or about 14 March 2017, the Respondent received a WorkCover WA – PROGRESS certificate of capacity which advised that the Applicant would be unfit for work from 14 March 2017 to 2 May 2017.

[55] On or about 2 May 2017, the Respondent received a WorkCover WA – Progress certificate of capacity advising that the Applicant would be unfit for work from 2 May 2017 until 2 August 2017.

[56] Aside from specifying a further period of absence of a further 3 months, the certificate dated 2 May 2017, consistent with the previous medical certification, contained only limited details of the management plan for the Applicant and did not include any details on a prognosis for the Applicant’s return to work.

[57] In late May 2017, the Respondent took a decision to, having regard for the significant length of time that had passed since Mr Smith’s letter of 3 May 2016 and the lack of information being supplied to indicate a potential return to work date, contact the Applicant to obtain information regarding his absence and the prognosis for his return to work.

[58] Such information was being sought because:

(a) the Applicant had not attended for work for in excess more than 13 months by that time and had not provided any detailed prognosis for a return to his substantive role (or any capacity to return to an alternative role); and

(b) the Respondent was holding the Applicant’s position open for the Applicant notwithstanding the absence of any prognosis of a return to work and wished to ensure that appropriate arrangements were in place to facilitate the Applicant’s return to work or to address a circumstances where the Applicants return to work was not possible (permanently or for an extended period).

[59] On 2 June 2017, the Respondent wrote to the Applicant to:

(a) confirm background information in relation to the Applicant’s employment situation; and

(b) instruct him to provide the Respondent with the information considered necessary to help decide upon an appropriate course of action in respect of his employment.

[60] The Applicant, in that letter, was:

(a) instructed to provide information in relation to the following questions by no later than 5.00 p.m. on 23 June 2017 as to:

(i) whether he would be able to return to work as a Mining Operator;

(ii) the anticipated timeframe of any such return to work; and

(iii) whether, upon returning to work, he would be subject to any restrictions;

(b) advised that the information was required to allow the Respondent to make an informed decision on an appropriate course of action in respect of his employment; and

(c) advised that if he failed to respond as instructed, the Respondent would proceed on the basis of the information available to it and that this could result in the termination of his employment.

[61] The Applicant did not respond to the letter of 2 June 2017 or otherwise contact Mr Bacon to discuss the letter.

[62] On or about 1 August 2017, the Respondent received a WorkCover WA – PROGRESS certificate of capacity advising that the Applicant would be unfit for work from 1 August 2017 until 1 November 2017.

[63] As with earlier PROGRESS certificates received by the Respondent in respect of the Applicant, this certificate provided only for a further 3 month extension of the Applicant’s absence and gave only limited detail as to the management plan for the Applicant. It did not, despite Mr Bacon having made it clear to the Applicant that the Respondent was seeking further information in Mr Bacon’s letter of 2 June 2017, contain any details on a prognosis for the Applicant to return to work.

[64] As at 1 November 2017, Mr Bacon had not been advised by the Applicant that he would be returning to work and had not received any further PROGRESS certificate of capacity documents providing detail of any future absence.

[65] On 3 November 2017, the Respondent wrote to the Applicant to:

(a) instruct the Applicant to provide (by no later than 5pm on 10 November 2017) information to allow the Respondent to determine an appropriate course of action in relation to his ongoing employment; and

(b) advise the Applicant that if he failed to respond as instructed, the Respondent would proceed on the basis of the information available to it, which could result in the termination of his employment.

[66] On 9 November 2017, the Applicant sent an email to Mr Bacon, Mr Jye McCaffery, Rehabilitation Consultant, and Ms Sarah Van Sickler, Operations Manager Huntly Mine, which included a range of accusatory statements and claimed to have attached a document which contained the requested information.

[67] The document attached to the Applicant’s email of 9 November 201 was a WorkCover WA – PROGRESS certificate of capacity advising that the Applicant would be unfit for work from 1 November 2017 to 1 February 2018.

[68] That PROGRESS certificate of capacity:

(a) as with earlier certificates, contained only very little detail on the injury management plan for the Applicant; and

(b) did not, despite the unambiguous instruction included in the letter sent on 3 November 2017, include any details as to:

(i) whether the Applicant would be able to return to work as a Mining Operator and the best, worst and most likely timeframe for that to occur;

(ii) whether the Applicant would be subject to any restrictions on a return to work, and if so, what the duration of those restrictions would be;

(c) had been prepared prior to Mr Bacon’s letter of 3 November 2017.

[69] Mr Bacon considered that the Applicant had not taken any steps to obtain or provide the information requested of him in his letter of 3 November 2017 even though the Applicant responded some 6 days after he had received that correspondence.

[70] Following consideration of the Applicant’s email on 9 November 2017, Mr Bacon formed a view that the Applicant had failed to comply with reasonable and lawful instructions given to him on 2 June 2017 and 3 November 2017.

[71] Mr Bacon and Mr Smith, in a discussion held after receipt of the Applicant’s 9

November 2017 email, decided to issue the Applicant with a show cause letter for his failure to comply with the instructions set out in the Respondent’s letters of 2 June 2017 and 3 November 2017.

[72] On 24 November 2017, the Respondent wrote to the Applicant to advise that:

(a) he had failed to respond to the Respondent’s instructions to provide answers to the questions posed of him in the letters of 2 June 2017 and 3 November 2017; and

(b) the Respondent considered that his repeated failure to comply with such reasonable and lawful instructions could be characterised as conduct justifying the termination of his employment; and

(c) before the Respondent made a decision as to whether it would terminate his employment, he had an opportunity to, before close of business on 30 November 2017, provide a written response detailing reasons as to why his employment should not be terminated.

[73] The Applicant did not respond to the Respondent’s letter of 24 November 2017.

[74] Mr Bacon and Mr Smith discussed the Applicant’s conduct and failure to respond to the letter of 24 November 2017 and they agreed that the Applicant’s employment should be terminated due to his repeated failure to comply with the Respondent’s lawful and reasonable instructions that he provide it with information that it required to determine an appropriate occurs of action in relation to his employment.

[75] On 12 December 2017, the Respondent sent the Applicant a letter confirming the decision taken by the Respondent to terminate his employment summarily for his repeated failure to comply with reasonable and lawful instructions.

Submissions

The Applicant

[76] Mr Waite submits he did not fail to respond to the questions posed and he replied to Alcoa’s emails sent to him on 3 November 2017 stating clearly that not all questions could be answered at this time. He attached his current medical certificate from his doctor stating he had no capacity for work at this time. Alcoa admits to receiving this email in the letter of dismissal.

[77] It is submitted Mr Waite complied with Alcoa's request to the best of his and his practitioners’ ability. The questions Alcoa had asked Mr Waite are questions he says they know cannot be answered due to the nature of his injury. Alcoa have received multiply examination reports all with different answers. Again because of the nature of injury there is so much guess work involved. Alcoa asking Mr Waite these questions knowing they cannot be answered at this time hence medical certificate (no capacity for work at this time) is plainly wrong it is submitted.

[78] Mr Waite says he lost faith in Alcoa’s doctors after being sent back to work after reporting severe pain in his shoulder and it resulted in his shoulder injury worsening and points out Dr Andrew Fairhurst (approved medical specialist) stated “Returning to his usual duties is likely to have aggravated any impingement that has arisen”.

[79] Mr Waite’s medical certificate at the time of dismissal which Alcoa had received included the current injury management plan:

Physio: To reduce pain and increase movement.

Possible Surgical Decompression: To stop impingement and allow free movement of the shoulder...Awaiting result of court case (workers compensation).

Counselling: To reduce anxiety and depression.

[80] It is submitted it was harsh and detrimental to Mr Waite’s mental health issues due to the insensitive approach of the dismissal and threatening actions due to his medical condition. It was plainly cruel being forcibly put in a position with no options and nowhere to turn.

[81] Mr Waite says it was harsh dismissing him less than 2 weeks before Christmas with a young family and this was a cruel and vicious fishing expedition knowing that he was suffering from depression and anxiety and knowing that the questions could not be answered.

[82] Having previous IME reports stating further examination would have to be done by an orthopaedic surgeon, Mr Waite says demonstrates Alcoa knowingly asked him to attend a work doctor, knowing he was not the correct orthopaedic surgeon, and could not answer the questions.

[83] Mr Waite submits his termination was unrealistic and unreasonable and has caused him even more stress and anxiety. Alcoa has had no regard for his mental health issues, and injury whatsoever; this is negligent, irresponsible and dangerous.

The Respondent

[84] The relevant factual matrix is that:

(a) The Applicant did not attend for the performance of work after 21 April 2016.

(b) On 2 June 2017, the Respondent wrote to the Applicant to obtain information regarding his absence and the prognosis for his return to work;

(c) Such correspondence was sent because:

(i) the Applicant had not attended for work for in excess more than 13 months by that time and had not provided any detailed prognosis for a return to his substantive role (or any capacity to return to an alternative role); and

(ii) the Respondent was holding the Applicant’s position open for the Applicant notwithstanding the absence of any prognosis of a return to work and wished to ensure that appropriate arrangements were in place to facilitate the Applicant’s return to work or provide support in the event that a return to work would not be possible (permanently or for an extended period).

(d) The Applicant was instructed to provide the information requested in the letter of 2 June 2017 to allow the Respondent to make an informed decision on an appropriate course of action in respect of the Applicant’s employment.

(e) The Applicant was required to comply with reasonable and lawful instructions pursuant to:

(i) his contract of employment, which required that the Applicant assume responsibilities from time to time as indicated by the Company;

(ii) the Conduct and General Conditions Document, which required that the Applicant comply with all lawful and reasonable instructions given to the Applicant; and

(iii) Clause 6.5(c) of the Agreement which provides that that “It is a term and condition of employment that every employee…accepts and recognises the authority of any Alcoa supervisory personnel as appointed by the Company from time to time.”

(f) The Applicant failed to respond to the Respondent’s letter of 2 June 2017;

(g) The Applicant’s failure to respond to the Respondent’s letter of 2 June 2017 was a failure to comply with a reasonable and lawful instruction;

(h) On 3 November 2017, the Respondent reiterated its instruction to the Applicant to provide information regarding his absence and the prognosis for his return to work;

(i) The Applicant responded to the Respondent’s letter of 3 November 2017 by email on 9 November 2017.

(j) In the Applicant’s response of 9 November 2017, the Applicant:

(i) included a WorkCover WA – PROGRESS certificate of capacity which pre-dated the Respondent’s letter of 3 November 2017 and did not include any responses specific to the questions that the Applicant was instructed to answer in the letters of 2 June 2017 and 3 November 2017; and

(ii) did not answer the specific questions posed in the Respondent’s letters of 2 June 2017 and 3 November 2017.

(k) The Applicant’s failure to provide responses to the questions posed in the Respondent’s letter of 3 November 2017 was a failure to comply with a reasonable and lawful instruction;

(l) As a consequence of the Applicant’s failure to comply with the instructions given to provide responses to the questions posed by the Respondent in the Respondent’s letters of 2 June 2017 and 3 November 2017, the Respondent’s representatives formed a view that the Applicant had failed to comply with reasonable and lawful instructions given to the Applicant on 2 June 2017 and 3 November 2017 and that such conduct justified the termination of the Applicant’s employment with the Respondent;

(m) On 24 November 2017, the Respondent wrote to the Applicant to:

(i) explain that it considered that the Applicant had failed to comply with reasonable and lawful instructions and that such failures could justify the termination of the Applicant’s employment; and

(ii) provide the Applicant with an opportunity to provide reasons as to why his employment with the Applicant should not be terminated.

(n) The Applicant did not respond to the Respondent’s letter of 24 November 2017;

(o) In the absence of a response from the Applicant, the Respondent considered the conduct of the Applicant and took a decision that the Applicant’s repeated failure to comply with reasonable and lawful instructions justified the summary termination of the Applicant’s employment; and

(p) On 12 December 2017, the Respondent communicated the decision to summarily terminate the Applicant’s employment to the Applicant.

[85] It is submitted the Applicant, in failing to provide the information requested by the Respondent in the letters of 2 June 2017 and 3 November 2017 was in direct contravention of the Applicant’s responsibilities as an employee of the Respondent.

[86] There was no reasonable basis for the Applicant to:

(a) not respond to the instruction of 2 June 2017;

(b) not provide responses to the specific questions posed in the letter of 3 November 2017;

(c) assume that the provision of the WorkCover WA – PROGRESS certificate of capacity (which was dated 1 October 2017 and pre-dated the instruction given by the Respondent by three days) would satisfy the instructions given by the Respondent; or

(d) not, at any time, including up until the date of filing of these submissions, provide information in response to the specific queries, even if only to provide educated estimates based on medical advice and assumed courses of medical intervention.

[87] The Respondent submits that its reasons for terminating the Applicant’s employment were sound, defensible well founded and not inappropriate having regard for the rights and obligations of both parties to the employment relationship.

[88] The Respondent further submits that, not only did it have a valid reason for terminating the Applicant’s employment, the Applicant’s conduct was sufficiently serious to support a view that the Applicant’s conduct amounted to serious misconduct.

[89] Regulation 1.07 of the Fair Work Regulations 2009 provides that ‘serious misconduct’ includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment and includes an employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

[90] The instructions contained in the letters of 2 June 2017 and 3 November 2017 were:

(a) reasonable insofar as they were given to elicit the provision of information from the Applicant or his treating medical practitioners (beyond the limited information routinely being provided to that point in time) to allow the Respondent to actively determine an appropriate course of action in respect of the Applicant’s employment (and the implications of that employment continuing or not continuing as the case may be); and

(b) legal insofar as the instruction was permitted by the Applicant’s terms and conditions of employment and would not necessitate the Applicant engaging in any unlawful or illegal conduct.

[91] The evidence of the failure of the Applicant to comply with the reasonable and lawful instructions given to him is not based on inexact proofs, indefinite testimony, or indirect inferences. 1

[92] Should the Commission conclude that Mr Waite’s dismissal was harsh, unjust or unreasonable the following submission was made with respect to remedy.

[93] Whilst the Applicant has not sought reinstatement as a remedy, the Respondent submits that the reinstatement of the Applicant would be inappropriate.

[94] In the Respondent’s view, there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[95] Senior management personnel (in Mr Bacon and Mr Smith) have (for sound and rational reasons) lost trust and confidence that the Applicant will:

(a) having regard for his failure to respond at all to the Respondent’s letters of 2 June 2017 and 24 November 2017 and his inappropriate response to the Respondent’s letter of 3 November 2017, comply with his obligations to obey reasonable and lawful instructions in future; and

(b) be capable of meeting his attendance requirements for the performance of work given his current home address (which is in excess of 4 hours away from the Myara minesite).

[96] It can be considered inappropriate to order reinstatement if an employee is incapacitated because of illness or injury (with the weight to be accorded to ongoing incapacity depending upon all of the circumstances of the case). 2

[97] As at the time of preparing these submissions, May 2018, the Respondent submits that the Applicant:

(a) remains unfit for work as confirmed in a WorkCover WA – PROGRESS certificate of capacity dated 2 March 2018;

(b) has not supplied any information which could lead the Respondent or the Commission as constituted to conclude that the Applicant will at any time in the future be fit to return to work in his former role; and

(c) has not provided any information that would support a conclusion that the Applicant will be capable of meeting the inherent requirements of his former role in future.

[98] It would impose an unreasonable burden 3 on the Respondent if the Applicant were to be reinstated only to be placed on an undetermined period of unpaid personal leave as it would leave the Respondent in a situation where all employment related decisions for the Applicant’s former work area would be subject to consideration of the Applicant’s then circumstances.

[99] Such a situation would be significantly exacerbated where the Applicant did not wholly co-operate with the Respondent (which demonstrably did not occur prior to the termination of the Applicant’s employment).

[100] Should the Commission as constituted conclude the Applicant has been unfairly dismissed, that reinstatement is not an appropriate remedy but that an order to restore lost pay is appropriate (which the Respondent submits ought not occur), the Respondent observes that an order to restore lost pay is discretionary.

[101] The Commission may take into account “all of the circumstances of the case, including the conduct” of the employee that led to the dismissal and any misconduct by the employee that has led to the dismissal may reduce the amount ordered. In this matter the circumstances where Mr Waite,

•  was on unpaid leave between April 2016 and December 2017,

•  has subsequently been unfit to undertake any work and,

•  has not provided any evidence of any future economic loss which would of course be subject to his capacity to return to work being established which it has not.

[102] The Respondent concludes that the Commission ought determine that Mr Waite was not unfairly dismissed but if however it was so determined that he has been unfairly dismissed the Commission should not order reinstatement, which Mr Waite himself does not seek, and should not order any payment of compensation in lieu of reinstatement in circumstances where had Mr Waite not been dismissed he would not have received any remuneration because he was then and has remained unable to work.

Consideration

[103] Section 387 of the Act, included below, sets out the matters the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[104] The relevant context in this matter is that when in December 2017 Mr Waite’s employment was terminated he had not been able to attend for work at Alcoa since April 2016 for medical reasons.

[105] Alcoa had been holding Mr Waite’s position open for him to return to work.

[106] In June 2017, Alcoa wrote to Mr Waite seeking information about his absence from work and his future return to work specifically,

•  whether you will be able to return to work for Alcoa;

•  an estimated timeframe for when you will be able to return;

•  whether there will be any temporary or permanent restrictions applicable to any return to work.

[107] That letter explained that Alcoa required information to decide what to do, which may include maintaining his employment, planning for his return to work or terminating his employment.

[108] The letter offered him the option of attending Alcoa’s Medical Centre for a review in order to be able to provide the requested information. Mr Waite did not do this.

[109] The letter advised that if he failed to respond or did not provide the required information Alcoa would proceed based on the information available to it and this may lead to a decision to terminate his employment.

[110] I find that Alcoa’s request for information to be provided by Mr Waite was reasonable and Alcoa’s instruction to him that he provide that information was lawful.

[111] No response to this letter was received from Mr Waite.

[112] What limited medical information that had been provided to Alcoa did not properly respond to the questions Alcoa had asked of Mr Waite.

[113] On 3 November 2017 Alcoa repeated the direction to Mr Waite for him to provide the requested information with the emphasis that it was critical he understand a failure to respond may lead to a decision to terminate his employment.

[114] Mr Waite did reply by email on 9 November 2017 4 attaching his most recent WorkCover WA - PROGRESS certificate of capacity. This certificate was dated 31 October 2017 which was before Alcoa’s letter was sent. Neither this certificate nor Mr Waite’s email answered the questions Alcoa had directed him to answer.

[115] Mr Waite’s email included the statement by him that “...not all questions can be answered at this time”.

[116] On 24 November 2017 Alcoa wrote to Mr Waite regarding the history of their correspondence with him since June 2017. This letter advised him that his failure on two occasions to provide responses to the questions asked was characterised as a failure to comply with reasonable and lawful instructions.

[117] He was advised this repeated failure to comply with the reasonable and lawful instructions of his employer justified the termination of his employment, however prior to taking a decision to terminate his employment on these grounds he was to be provided with an opportunity to provide reasons as to why his employment should not be terminated.

[118] Mr Waite did not respond to Alcoa’s invitation to provide reasons why his employment should not be terminated by the deadline of Thursday, 30 November 2017 nor indeed at any later time.

[119] Consequently by letter dated 12 December 2017 Alcoa advised Mr Waite that in view of his repeated failure to comply with its lawful and reasonable instruction to answer questions concerning his capacity to return to work in the future his employment was thereby summarily terminated for serious misconduct.

Valid Reason

[120] There is no doubt on the evidence that Mr Waite repeatedly failed to comply with Alcoa’s reasonable and lawful instruction to provide answers to a number of questions it asked.

[121] Whilst Mr Waite may have believed those questions could not be answered when Alcoa asked them he was obliged to obey Alcoa’s reasonable and lawful instruction. The obvious course open to him was to obtain medical advice responding to Alcoa’s questions and provide those answers to Alcoa, but Mr Waite chose not to do so.

[122] Mr Waite’s repeated failure to comply with his employer’s reasonable and lawful instructions was a valid reason for his dismissal.

Notification of that reason?

[123] Before Mr Waite was dismissed he was notified by letter dated 24 November 2017 that his employer was considering terminating his employment because of his failure to comply with its reasonable and lawful instructions.

Opportunity to respond to the reason?

[124] Alcoa’s letter dated 24 November 2017 provided Mr Waite with an opportunity to provide reasons why his employment should not be terminated. Mr Waite did not take up this opportunity.

Refusal of support person?

[125] There was no unreasonable refusal by Alcoa to allow Mr Waite to have a support person present at any discussions, indeed there were no meetings or discussions.

The size of the employer’s enterprise and dedicated Human Resource management specialists or expertise

[126] Alcoa is a large employer that also has dedicated Human Resource management specialists and the procedurally sound approach followed in effecting the dismissal reflects this.

Other matters

[127] Mr Waite has been employed with Alcoa since June 2015.

Conclusion

[128] There is no basis for the Commission to conclude that the dismissal of Mr Waite was either harsh, unjust or unreasonable. This application will consequently be dismissed and an Order [PR701290] to that effect will now be issued.

Appearances:

No appearance on behalf of the Applicant.

M Vallence of Heelan & Co Industrial Relations Management for the Respondent.

Hearing details:

2018.

Perth:

September 14.

Printed by authority of the Commonwealth Government Printer

<PR701289>

 1   See Briginshaw v Briginshaw [1938] HCA 34 at [362]-[363].

 2   See Cartisano v Sportsmed SA Hospitals Pty Ltd[2015] FWCFB 1523.

 3   See Smith v Moore Paragon Australia Ltd (2004) 130 IR 446.

 4   Exhibit R1, Attachment 19.