Toni Mueller v The Real McCoy & Co T/A Snack Brands Australia
[2022] FWCFB 218
•25 NOVEMBER 2022
| [2022] FWCFB 218 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Toni Mueller
v
The Real McCoy & Co T/A Snack Brands Australia
(C2022/5569)
| VICE PRESIDENT CATANZARITI | SYDNEY, 25 NOVEMBER 2022 |
Appeal against decision [2022] FWC 1871 of Deputy President Boyce at Sydney on 19 July 2022 in matter number U2021/9956 – permission to appeal refused.
Introduction
Mr Toni Mueller (Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against the decision (the Decision)[1] of Deputy President Boyce (Deputy President) issued on 19 July 2022. The Appellant was employed as a Receivables Forklift Operator employed by The Real McCoy Snackfood Co Pty Limited t/a Snack Brands Australia (Respondent) and was dismissed on the basis that he was unable to perform the inherent requirements of his position. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against the Respondent pursuant to s.394 of the Act.
The Appellant’s Notice of Appeal was filed one day late. Having regard to all the circumstances of the case, we consider it appropriate to exercise our discretion to extend the time for filing the Notice of Appeal by one day.
On 18 November 2022, we conducted a hearing, by video conference, in relation to the issues of extension of time, permission to appeal and the merits of the appeal. At that hearing each party was afforded an opportunity to present oral submissions to supplement their written submissions in relation to the appeal. We have taken into account the parties’ written and oral submissions in determining this matter.
Deputy President’s Decision
The Deputy President made findings of fact in relation to the requirements of the Appellant’s role and the work undertaken by him in that role.[2]
The Deputy President then found (at [42]) that the Appellant was unable to perform the inherent requirements of his position. In so finding, the Deputy President considered an expert report prepared by Dr Mahima Abeyaratne, Specialist Occupational Physician, dated 5 March 2021. Dr Abeyaratne assessed the Appellant as having the following restrictions on his physical capacity:[3]
“Mr Mueller is a 64-year-old Receivables Forklift Operator who is suffering from coronary artery disease, successful repair of an abdominal aortic aneurysm, well-controlled obstructive sleep apnoea, arthritis in his knees, and symptoms of breathlessness impacting on his physical function.
Considering the available medical evidence his self-reported symptoms, and taking into consideration the medical opinions of his treating doctors, I would recommend the following restrictions on his physical capacity:
· Lifting capacity to avoid lifting weights over 5Kg.
· Avoid squatting and kneeling,
· Avoid strenuous activities such as shovelling, carrying heavy loads upstairs, and repeated climbing up and down step ladders.Considering that his cardiac condition is stable and well controlled and taking into consideration Dr Olinga’s opinion on risk of cardiac event, in my opinion I believe that Mr Mueller is fit to continue operating the forklift at this stage. The “assessing fitness to drive” standards under the National Transport Commission were referred to and applied given the safety critical nature of forklift operation functions. Commercial vehicle driver standards were applied in the assessment of Mr Mueller’s coronary artery disease, obstructive sleep apnoea and abdominal aortic aneurysm.”
Dr Abeyaratne opined that, considering the nature and history of the Appellant’s conditions, the restrictions she recommended were unlikely to change in the foreseeable future.[4]
The Deputy President found (at [33]) that the Appellant did not challenge (by way of other medical evidence or medical opinion) the findings of, and conclusions reached by, Dr Abeyaratne in relation to the Appellant’s restrictions.
The Deputy President also found (at [43(a)]) that, based on the Appellant’s restrictions and the inherent requirements of his role, there were no reasonable modifications that could have been made to his role such that the Appellant could have safely undertaken it.
It was concluded by the Deputy President (at [43(b)]) that there was no evidence of any available and suitable alternative roles to which the Appellant could have been redeployed.
As part of his assessment as to whether there was a valid reason for the Appellant’s dismissal, the Deputy President considered and rejected the following arguments advanced by the Appellant:
(a)Dr Abeyaratne assessed the Appellant against tasks that were no longer performed by him in his role, or otherwise relied upon false or misleading information as to the role and/or the work that the Appellant was performing in his role;[5]
(b)the Appellant’s role was a two-person role;[6] and
(c)the Appellant’s restrictions could have been overcome by reasonable work adjustments, or existed only because the Respondent was not maintaining safe work systems or did not have in place appropriate controls to mitigate risks. In this regard, the Deputy President found that certain types of manual or physical work inevitably remained as inherent aspects of the Appellant’s role, including shovelling potato spillage, squatting down to retrieve spilled potatoes that have fallen under shelving and machinery, and climbing up and down step ladders.[7]
Having found that the Appellant could not perform the inherent requirements of his job, there were no reasonable modifications that could have been made to the job, and there was no evidence of any suitable alternative roles for the Appellant, the Deputy President concluded (at [44]) that there was a valid reason for the Appellant’s dismissal based on his capacity, including the effect of that incapacity on the safety and welfare of the Appellant and other employees.
The Deputy President relied on the multiple show cause letters sent to the Appellant to find that he was clearly notified of the reason for his dismissal and given an opportunity to respond to it.[8]
It was found by the Deputy President that there was no suggestion in the evidence that the Respondent refused to allow the Appellant to have a support person present to assist in any discussions related to his dismissal.[9]
The Deputy President treated the factors in ss.387(e), (f) and (g) of the Act as neutral considerations in his assessment of the fairness of the Appellant’s dismissal.[10]
As to other relevant matters under s.387(h) of the Act, the Deputy President rejected the Appellant’s contention that he was misled into signing a consent form in relation to the assessment undertaken by Dr Abeyaratne, since his argument in that regard was inconsistent with the consent form signed by the Appellant.[11] The Deputy President also rejected an array of broad allegations made by the Appellant concerning harassment, victimisation, bullying, discrimination, breaches of legislation (including of Part 3-1 of the Act) and regulations, failing to meet or comply with legislative obligations or standards, breaches of contract, breaches of privacy, breaches of policy, breaches of safety, failure to provide procedural fairness, the giving of false evidence, lying, and misleading and deceptive conduct.[12] The Deputy President observed that many of these allegations were irrelevant to the issues he was required to determine in his assessment as to whether the Appellant’s dismissal was unfair or were unsupported by appropriate evidence. The Deputy President rejected the evidence and reports provided by Mr Padayachy, who purported to have conducted an investigation into the Respondent’s dealings with the Appellant and expressed opinions about the Respondent and members of its management team. The Deputy President gave reasons in his Decision for rejecting that evidence.[13]
The Deputy President considered the Appellant’s arguments concerning his age, length of service and unblemished record with the Respondent, but effectively found that those matters were outweighed by the fact that the Appellant was unable to perform the inherent requirements of his position.[14]
The Deputy President’s “overall assessment” was that the Appellant’s dismissal was not unfair.[15]
Permission to appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[16] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”.[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[18] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[19]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[20] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[21]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[22]
Summary of the Appellant’s grounds of appeal, submissions and public interest contentions
The Appellant’s notice of appeal identifies two grounds for the appeal: first, the Deputy President erred in his decision, deeming “the termination of the Applicant’s employment was sound, defensible or well founded” by failing to consider each of the factors in s.387 of the Act; and secondly, the Deputy President erred in the Decision by displaying clear bias against the Appellant.
In support of his first ground of appeal, the Appellant filed detailed written submissions addressing each factor in s.387 of the Act. The vast majority of those submissions do not make any reference to the Decision or any alleged errors in the Decision. Most of the submissions read as if the Appellant were arguing the case at first instance.
The Appellant’s allegations of bias against the Deputy President include the following:
(a) the Deputy President failed to consider any of the Appellant’s statements or evidence;
(b) the Deputy President failed to place any weight on the opinions of his treating doctors;
(c) the Deputy President does not explain how he formed the opinion that Dr Abeyaratne was an expert in circumstances where she relied on the opinions of the Appellant’s treating doctors;
(d) the Deputy President gave no consideration to the fact that a person must become a doctor before becoming a surgeon, which placed the Appellant’s doctors at a higher level of seniority than the Respondent’s doctor;
(e) the Deputy President failed to take into consideration the finding of Dr Howard Nappier to the effect that actions on the part of the Respondent were inappropriate and were the primary cause of the Appellant’s psychological injury;
(f) the Deputy President’s refusal to consider the report from Mr Padayachy, who was engaged by the Appellant to undertake a workplace investigation into the Respondent;
(g) the Deputy President permitted the transfer of the Appellant’s sensitive personal information and medical information to third parties who were not named in the proceedings;
(h) the Deputy President’s refusal to grant the Appellant access to the recording of the cross examination of the Respondent without placing the same restrictions on the Respondent;
(i) the Deputy President accepted Ms Mac’s opinion as to whether the Appellant’s leave was excessive even though Ms Mac stated in cross examination that she “is not a doctor”;
(j) the Deputy President failed to have regard to relevant evidence, including statements made by the Respondent’s managers in relation to the Appellant’s workers compensation claim which contradicted their statements to the Commission and an alleged failure by the Respondent to appoint a return to work provider for the Appellant in May 2021;
(k) the Deputy President permitted the Respondent to lodge materials into evidence which were “illegally obtained and unlawfully retained”;
(l) the Deputy President allowed Ms Mac to not answer questions of direct relevance to the termination of the Appellant’s employment. In addition, Ms Mac was permitted an excessive amount of time to answer questions, the effect of which resulted in the Appellant not completing the questions he intended to ask Ms Mac; and
(m) the Deputy President acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration, and made decisions that were unreasonable or plainly unjust.
The Appellant submits that the Deputy President made the following significant errors of fact:
(a)Ms Kelly, the Appellant’s daughter, did not concede that “the Applicant remained incapacitated”;[23]
(b)Dr Abeyaratne’s report was not “extremely thorough”.[24] In particular:
· due to the great variances in Dr Abeyaratne’s report between 11 December 2020 and 5 March 2021, the veracity of the report must be brought into question as well as its findings and methods by which it came to those findings;
· because the Respondent paid Dr Abeyaratne to prepare her report, she was not independent;
· the expert opinions provided by Dr Abeyaratne were based on information provided by the Appellant’s doctors; and
· all of the Appellant’s health issues can be linked back to a single cause, namely Shift Work Syndrome, which could have been avoided by the Respondent having a fatigue management policy and rotating shift roster in place.
(c)The Appellant’s role was “not a two-person role”.[25] In this regard, the Appellant relies on statements he says were made to the Respondent’s workers compensation insurer by (i) Mr Warren Gould, Production Manager, that it “was a two-person job”, (ii) Mr Walter Fraser, the Appellant’s Manager, that it “was a three person job”, and (iii) Ms Anita Mac, WHS Manager, that she was “unsure how many people” were in receivables at the time. The Appellant criticises the Deputy President for not taking any steps to inform himself about how many people were working for the Respondent.
(d)The Appellant failed to identify any suitable alternative role that was actually available at the time of his dismissal.[26] The Appellant contends that Ms Mac admitted in cross examination that the Appellant had been denied training and upskilling opportunities.
(e)The show cause letters sent to the Appellant on 9 April 2021, 9 July 2021 and 26 July 2021 notified the Appellant of the proposed reason for his dismissal and gave him an opportunity to respond.[27] The Appellant says that he was absent from work due to illness on each of the dates the show cause letters were sent to him.
(f)On 5 April 2021, the Appellant engaged Mr Padayachy as a workplace investigator with respect to the Appellant’s on-going employment with the Respondent.[28]
The Appellant concludes his submissions on significant errors of fact by stating that he “randomly selected five or six points from … [the Decision] to see if an error of fact be located having reviewed the decision there are so many areas in this report it was a struggle of immense proportion to keep it to five points to review. If every single mistake had to be highlighted and responded to, there would have been way too many to mention…”
As to the public interest, the Appellant contends that, because Australia’s workforce and population in general are aging, issues concerning the question of whether an employee has the ability to meet the inherent requirements of their job will more than likely come to the fore with increasing regularity, with the result that the public interest is engaged. The Appellant relies on what he says are parallels between his circumstances in his employment with the Respondent and parts of a report prepared by a Senate Select Committee in 2017 in relation to the future of work and workers in an aging population. The Appellant also contends that he has suffered a gross injustice, having regard to the fact that he is a 64 year old worker with an unblemished attendance and conduct record for over 20 years, he was denied access to training and opportunities, he was bullied by a new manager, and he was, as the sole breadwinner in his household and just prior to his second long service leave entitlement, terminated on the basis of an opinion held by his employer (and not his doctor) that he was not able to meet the inherent requirements of his position.
It is also contended by the Appellant that the public interest is engaged because the Deputy President:
(a) did not act impartially or appropriately;
(b) ignored relevant evidence;
(c) allowed the Respondent to tender evidence in the form of medical records which had been unlawfully obtained;
(d) made significant errors of fact;
(e) failed to acknowledge legislation relating to work, health and safety, the Respondent’s obligations as a PCBU, and privacy;
(f) applied principles that were wrong and disharmonious when compared with other recent decisions;
(g) denied the Appellant access to a recording of his cross examination;
(h) allowed irrelevant matters to guide him;
(i) failed to take into account material and relevant evidence;
(j) mistook facts;
(k) failed to find that the Respondent did not meet the requirements of regulation 3.01 of the Fair Work Regulations by ensuring that an employee is entitled to discharge all of their annual and personal leave prior to a 90 day unpaid period before being dismissed on the ground that they are unable to meet the inherent requirements of the role; and
(l) made a manifestly unjust decision.
Summary of the Respondent’s submissions
The Respondent submits that permission to appeal should not be granted. It contends that the Deputy President dismissed the Appellant’s unfair dismissal application on the basis of uncontested evidence that the Appellant could not perform the inherent requirements of his role as a Receivables Forklift Operator and there was no reasonable scope for the Appellant to be redeployed into another available role.
The Respondent submits that the Deputy President applied the correct test in determining whether the Appellant was able to undertake the inherent requirements of his role.
The Respondent contends that the Appellant does not identify any error in the principles applied by the Deputy President or the application of those principles to the facts of this case. Rather, the Respondent contends the Appellant’s grounds of appeal amount to a bald invitation to the Full Bench to come to a different assessment and conclusion from that reached by the Deputy President at first instance.
The Respondent submits that no arguable case of error is apparent in the Appellant’s grounds of appeal or the submissions filed in support of those grounds.
It is contended by the Respondent that there is no public interest in granting permission to appeal.
Consideration
We do not consider that this is a case where it is in the public interest to grant permission to appeal. We have reached that conclusion for a number of reasons. First, we do not consider that the Decision raises any issue of general importance or application that would enliven the public interest. It concerned the dismissal of an employee on the basis that he could not undertake the inherent requirements of his job. The case turned on its own facts and circumstances. The Deputy President applied an orthodox approach in determining the inherent requirements of the Appellant’s job, considering lay and expert evidence on the question of whether the Appellant could undertake the inherent requirements of his job, or may be able to do so in the foreseeable future, considering whether there were any reasonable adjustments that could have been made to the Appellant’s job, and assessing whether there were any suitable alternative jobs into which the Appellant could have been redeployed.
The Appellant’s submissions in support of permission to appeal rely heavily on the issue of age-based discrimination and the increasing prevalence of such discrimination in an aging population. This is said to give rise to an issue of general importance and thereby attract the public interest. Although an allegation of age-based discrimination was contained within the report of Mr Padayachy, the Appellant’s request to rely on evidence from Mr Padayachy was rejected by the Deputy President.[29] The Appellant’s detailed final closing submissions do not make any reference to an allegation of age-based discrimination. As a result, the Deputy President did not decide any issue concerning age-based discrimination. Having regard to those circumstances, we do not consider that the issue of age-based discrimination attracts the public interest in this appeal.
Secondly, there is not a diversity of decisions at first instance so that guidance from a Full Bench is required, nor were the legal principles applied by the Deputy President disharmonious when compared with other recent decisions dealing with similar matters. The principles applicable to the dismissal of an injured or ill worker have been considered at the appellate level in the Fair Work Commission and its predecessors on a number of occasions.[30] The Deputy President applied those principles in an orthodox manner in his assessment of the Appellant’s case. One such principle is the requirement to consider the substantive position of the employee who it is alleged cannot undertake the inherent requirements of their job, not some modified, restricted duties or temporary alternative position.[31] The Deputy President applied that principle to the facts before him.[32]
One way in which the Appellant contends that the Decision is disharmonious with other recent decisions is in relation to s.352 of the Act and regulation 3.01 of the Fair Work Regulations 2009. The Appellant’s arguments in relation to those provisions are, however, misconceived. Section 352 of the Act provides that “An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”. Regulation 3.01 prescribes certain kinds of illness or injury for the purpose of s.352. In order for an illness or injury to be temporary within the meaning of s.352 and regulation 3.01, the employee’s absence from work must extend for no more than three months, or for no more than a total of three months in a 12 month period. The Appellant relies on these provisions to contend that the Respondent should not have dismissed him when it did in October 2021 because, at that time, he had not exhausted “his leave entitlements inclusive of the 90 day unpaid leave component as noted in Regulation 3.01 of the Fair Work Regulations”.[33] These provisions do not prohibit an employer from dismissing an employee who is unable to fulfil the inherent requirements of their job until after the employee has exhausted their accrued leave entitlements, nor do they confer any kind of protection against dismissal during a “90 day unpaid leave” period. The effect of s.352 of the Act and regulation 3.01 is to prohibit the dismissal of an employee because they are absent from work for three months or less because of an illness or injury of a kind prescribed by regulation 3.01.
Thirdly, we do not consider that the Decision is counter intuitive. At the hearing before the Deputy President the Appellant accepted that he suffered from a range of health conditions,[34] as a result of which he was unable to shovel potatoes or undertake any heavy lifting,[35] and also had problems unloading potatoes, going up and down steps, and kneeling, which was required when cleaning beneath machinery.[36] It is clear from the evidence that cleaning potato spills, lifting upwards of 10 kilograms and frequent stepping up and down stairs was part of the Appellant’s job.[37] The Appellant was therefore unable to undertake the inherent requirements of his job. Questions of reasonable adjustments and suitable alternative roles were considered by the Deputy President on the evidence before him, as were issues associated with the fairness of the procedure followed by the Respondent before making its decision to dismiss the Appellant.
Fourthly, the grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal. Although in determining whether permission to appeal should be granted it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal,[38] it is necessary to engage with the appeal grounds to consider whether they disclose an arguable case of error. We deal with the Appellant’s broad grounds of appeal briefly as follows.
The first ground of appeal contends that the Deputy President erred by failing to consider each of the factors specified in s.387 of the Act. It is clear from any reading of the Deputy President’s reasons for Decision that he considered and took into account each factor in subparagraphs (a) to (h) of s.387 of the Act. The Appellant’s submissions in relation to his first ground of appeal seek to argue the case as if there had been no decision at first instance. An appeal to a Full Bench exists for the correction error. It is not a hearing de novo.[39]
Many of the broad allegations made by the Appellant relate to acts or omissions allegedly made by the Respondent years before the Appellant’s dismissal. For example, the Appellant argues that the Respondent failed to (a) have a fatigue management policy, (b) have a rotating shift policy, or (c) instal nets to prevent potatoes spilling on the floor, with the result that the Appellant had to crawl into confined spaces to manually recover the potatoes and he suffered injuries. These types of matters may give rise to a claim for personal injury in another jurisdiction, but they do not have any material bearing on the fairness of the Respondent’s decision in October 2021 to dismiss the Appellant on the basis that he could not undertake the inherent requirements of his position. There is no arguable error in the Deputy President’s decision not to give such matters weight in assessing the fairness of the Appellant’s dismissal.[40]
The second ground of appeal concerns an allegation of bias on the part of the Deputy President. The Appellant says he made a submission to the Deputy President to the effect that it may appear as though he was biased towards the Respondent. The Appellant also made a complaint to Justice Ross, on 15 July 2022, in relation to a range of matters including allegations of impartiality and bias on the part of the Deputy President. A written response to that complaint was sent to the Appellant on 8 August 2022. The Appellant did not ask the Deputy President to recuse himself from dealing with the matter.
We do not consider it to be seriously arguable that the Deputy President acted impartially or contrary to natural justice, denied the Appellant procedural fairness, or failed to consider all relevant evidence and legislation. The Appellant was given every chance to present his case throughout the hearing before the Deputy President on 1 and 16 February 2022 and in final closing submissions filed on 24 March 2022. The Appellant was provided with access to the recording of the hearing before he was required to file his final closing submissions, which were lengthy and detailed. He was also granted an extension of time to file his final closing submissions. There is no merit in the Appellant’s contention that he was unfairly denied an opportunity to present oral closing submissions in circumstances where he was given until 24 March 2022 to file closing written submissions.
The Appellant’s cross examination of one of the Respondent’s witnesses, Ms Mac, commenced at 10:46am on 16 February 2022.[41] Part way through Ms Mac’s cross examination the Deputy President put a limitation on the period of time the Appellant would have to cross examine Ms Mac until 12.30pm on 16 February 2022.[42] At 12:30pm the Deputy President asked the Appellant’s representative whether she had exhausted everything she wanted Ms Mac to answer.[43] In response, Ms Kelly said: “Yes, I'm at the end”.[44] Accordingly, there is no merit in the submission that the Deputy President prevented the Appellant from completing the questions he wanted to ask Ms Mac.
The Appellant expressed concern to the Deputy President that Ms Marion Hares had been given access to the Appellant’s private and medical information, and may have been going to cross examine the Appellant at the hearing. Ms Hares was, at the relevant time, the manager of Ms Derwash, Senior Human Resources Manager of the Respondent, who appeared for the Respondent at the hearing. Ms Hares was based in New Zealand and was employed by a company in the same corporate group as the Respondent. There was nothing unusual or irregular about Ms Derwash’s manager being provided with relevant information in relation to the case and presenting opening submissions to the Deputy President on behalf of the Respondent.[45] In the result, Ms Hares did not cross examine the Appellant. Ms Derwash conducted the cross examination of the Appellant.[46]
It is clear from the Decision that the Deputy President was aware of, and considered, the multitude of arguments put forward by the Appellant in support of his contention that his dismissal was unfair.[47] Contrary to the Appellant’s assertions, the Deputy President made express reference in his Decision to evidence given by the Appellant on a range of matters.[48] The Deputy President gave reasons for rejecting the evidence of Mr Padayachy.[49] In our view, there is no arguable error in relation to the Deputy President’s decision not to admit into evidence the opinions, assertions and hearsay accounts of Mr Padayachy, a person who was engaged by the Appellant to conduct an investigation into the Respondent and its dealings with the Appellant.
The Appellant complains that the Deputy President permitted the Respondent to rely on evidence that was illegally obtained and unlawfully retained. This contention relates to communications between the independent medical expert retained by the Respondent, Dr Abeyaratne, and the Appellant’s treating doctors. The Appellant submits that Dr Abeyaratne was not authorised to engage in these communications because the relevant privacy consent form expired at the completion of Dr Abeyaratne’s earlier report in December 2020. Dr Abeyaratne prepared a number of reports, the latest of which was dated 5 March 2021. In preparing that report Dr Abeyaratne relied on information from a range of sources, including communications with the Appellant’s treating doctors. We do not consider that the decision by the Deputy President to permit the Respondent to rely on Dr Abeyaratne’s report dated 5 March 2021 gives rise to an arguable appealable error.
Nor do we consider there to be any arguable errors in relation to the significant errors of fact for which the Appellant contends. The Appellant submits that the Deputy President erred by finding that Ms Kelly, the Appellant’s daughter, conceded that “the Applicant remained incapacitated” at the time of the hearing.[50] The transcript reveals that Ms Kelly did inform the Deputy President, in the context of a discussion about the Appellant’s claim for compensation, that he “has not been fit for work”.[51] Although the answer given by Ms Kelly to the Deputy President on this point did not expressly identify a particular time at which the Appellant “has not been fit for work”, the undisputed evidence to which we have referred in paragraph [39] above establishes that the Appellant was unable to carry out the inherent requirements of his position at the time he was dismissed. That is the relevant time for assessing the fairness of the Respondent’s decision to dismiss the Appellant.
The Appellant’s alleged significant errors of fact in relation to Dr Abeyaratne’s report dated 5 March 2021 are not errors of fact. They are complaints about the report and the opinions expressed within it. The Deputy President admitted the report into evidence and gave it weight, along with evidence from a range of witnesses, including the Appellant. We do not consider there to be any arguable appealable error in relation to the Deputy President’s decision to admit the expert report into evidence and accord it some weight.
The Appellant contends that the Deputy President made a significant error in finding that his role was “not a two-person role, nor is a role that is split across the three persons working the Applicant’s shift in the Receivables Department”.[52] In this regard, the Appellant relies on statements he says were made to the Respondent’s workers compensation insurer by (i) Mr Warren Gould, Production Manager, that it “was a two-person job”, (ii) Mr Walter Fraser, the Appellant’s Manager, that it “was a three person job”, and (iii) Ms Anita Mac, WHS Manager, that she was “unsure how many people” were in receivables at the time. The Appellant criticises the Deputy President for not taking any steps to inform himself about how many people were working for the Respondent.
The Deputy President’s reasons for finding that the Appellant’s role was not a “two-person” role are set out in paragraphs [37] and [40] of the Decision. In paragraph [37] the Deputy President provided, in footnote 41, extensive references to the transcript and the statement of Mr Gould to support his finding that the Appellant’s contention was “contrary to the evidence”. The evidence to which the Deputy President referred in those footnotes supports his finding. In addition, the Appellant’s submissions about the statements allegedly made to the workers compensation insurer do not withstand scrutiny. Mr Walter Fraser told the insurer that “Whenever Tony works we have to have an additional person working to unload the potato truck, as Tony is not able to unload the potato truck”.[53] Mr Warren Gould told the insurer that “When Tony was onsite (on afternoon shifts), we have three people rostered on to work as Tony is unable to do a part of his job. When Tony is not on shift we only have two people undertaking the same work (as two people can handle the same processes and the same number of trucks that it takes three people to do when Tony is working)”.[54] The Deputy President’s finding in relation to this issue was not contrary to the overwhelming weight of the evidence.
The Appellant contends that the Deputy President made a significant error of fact by finding that the Appellant failed to identify any suitable alternative role that was actually available at the time of his dismissal.[55] The Appellant contends that Ms Mac admitted in cross examination that the Appellant had been denied training and upskilling opportunities. Even if such a concession was made, it would not have any bearing on the question of whether the evidence disclosed or revealed any suitable alternative roles that were actually available at the time of the Appellant’s dismissal.
Whether or not the Appellant was absent from work due to illness when the Respondent’s show cause letters were sent to him on 9 April 2021, 9 July 2021 and 26 July 2021, the Appellant was given multiple opportunities, which he took up, to respond to the reason for his proposed dismissal before any decision to terminate his employment was made by the Respondent. There is no arguable error in relation to this finding by the Deputy President.
The Appellant also contends that the Deputy President made a significant error of fact by finding that, on 5 April 2021, the Appellant engaged Mr Padayachy as a workplace investigator with respect to the Appellant’s on-going employment with the Respondent.[56] The Appellant’s submissions provide detailed reasons as to why he engaged Mr Padayachy and why his reports and evidence should have been taken into account by the Deputy President, but the Appellant does not explain the basis of any alleged error in the finding that the Appellant engaged Mr Padayachy on 5 April 2021.
Fifthly, we are not satisfied that any substantial injustice would ensue to the Appellant if permission to appeal is not granted. That is because no arguable case of appealable error is disclosed in the Decision.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr N Padayachy for the Appellant.
Ms A Derwash for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
18 November.
[1] [2022] FWC 1871
[2] Decision at [8]-[10]
[3] Decision at [17]
[4] Decision at [16]
[5] Decision at [36]
[6] Decision at [37]
[7] Decision at [38]-[40]
[8] Decision at [47]
[9] Decision at [54]
[10] Decision at [55]-[56]
[11] Decision at [58]
[12] Decision at [59]-[62]
[13] Decision at [62]
[14] Decision at [63]
[15] Decision at [65]-[68]
[16] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[17] (2011) 192 FCR 78 at [43]
[18] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[19] [2010] FWAFB 5343, 197 IR 266 at [27]
[20] Wan v AIRC (2001) 116 FCR 481 at [30]
[21] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[22] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[23] Decision at [33]
[24] Decision at [34]
[25] Decision at [34]
[26] Decision at [41]
[27] Decision at [47]
[28] Decision at [53]
[29] Decision at [62]
[30] See, for example, Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075 at [53]-[59], CSL Limited v Papaioannou[2018] FWCFB 1005 and DA v Baptist Care SA[2020] FWCFB 6046
[31] J Boag and Son Brewing Pty Ltd v Button[2010] FWAFB 4022 at [22]
[32] Decision at [32], [40] & [42]
[33] Appellant’s outline of submissions dated 30 September 2022 at [29]
[34] PN329
[35] PN340
[36] PN331 & PN338
[37] PN327-328
[38] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[39] Australian Education Union v Bendigo Kangan Institute of TAFE[2021] FWCFB 3649 at [38]
[40] Decision at [59]-[61]
[41] PN632
[42] PN732
[43] PN819
[44] PN820
[45] PN185 – PN198
[46] PN300
[47] See, for example, Decision at [30], [35]-[44], [48]-[49], [53]-[54] & [58]-[64]
[48] See, for example, references to the Appellant’s evidence in the Decision at footnotes 11, 19, 25-32, 45, 47, 51 and 59
[49] Decision at [62]
[50] Decision at [33]
[51] PN111 – PN112
[52] Decision at [40]
[53] Court Book at p 211 [11]
[54] Court Book at p 208 [34]
[55] Decision at [41]
[56] Decision at [53]
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