Toni Mueller v The Real McCoy Snackfood Co Pty Limited t/as Snack Brands Australia
[2022] FWC 1871
•19 JULY 2022
| [2022] FWC 1871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Toni Mueller
v
The Real McCoy Snackfood Co Pty Limited
t/as Snack Brands Australia
(U2021/9956)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 19 JULY 2022 |
Application for an unfair dismissal remedy – applicant diagnosed with multiple on-going health conditions – fitness for work assessments identify restrictions in role Applicant employed to perform – no indication based upon medical evidence that Applicant’s restrictions will abate into the future – whether applicant is able to perform the inherent requirements of the role he was employed to perform – whether additional employee utilised whilst applicant undertaking suitable duties supernumerary – whether role applicant was employed to perform capable of reasonable modification based upon applicant’s restrictions – whether available and suitable alternative role based upon applicant’s restrictions - valid reason for dismissal – procedural fairness – dismissal not unfair – application dismissed.
Introduction
On 5 November 2021, Mr Toni Mueller (Applicant), filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy. The Applicant claims that his dismissal by The Real McCoy Snackfood Co Pty Limited trading as Snack Brands Australia (Respondent) on 15 October 2021 was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
The Respondent asserts that the Applicant was dismissed due to him being unable to perform the inherent requirements of his role as a “Receivables Forklift Operator” (RFO role), and that the dismissal was both substantively and procedurally “fair”.
Following the receipt of submissions and evidence in accordance with directions made, I held hearings in Sydney on 1 and 16 February 2022 to resolve the application. The Applicant’s daughter, Ms Deborah Kelly appeared for the Applicant, and Ms Abeda Derwash, HR Manager, appeared for the Respondent.
Witness evidence
The Applicant relies upon the following evidence:
(a)Witness Statement of Mr Toni Mueller, undated;[1] and
(b)Witness Statement of Mr Nick Padayachy, Sole Director and Private Investigator, Inconoclast Investigation Services, undated.[2]
The Respondent relies upon the following evidence:
(a) Witness Statement of Ms Anita Mac, Workplace Health and Safety Manager, dated 19 January 2022;[3] and
(b) Witness Statement of Mr Warren Gould, Manufacturing Manager, dated 19 January 2022.[4]
Factual findings
Based upon the evidence relied upon by both parties at the hearing, I make the findings of fact set out in the paragraphs that follow.
The Applicant commenced employment with the Respondent on 8 October 2001 pursuant to a written offer of employment dated 26 September 2001.[5]
I accept the following evidence of Mr Gould as to the work performed at the site that the Applicant worked at, along with Mr Gould’s summary outline of the work performed in the RFO role:
“5. The Blacktown site consists of a number of sections, including potato processing, packaging, robot case handling, pallet wrapping, finished goods transfers, material receivals, wastewater treatment plant, maintenance workshop and offices. The potato processing and packaging sections form the production area. The robot case handling, pallet wrapping, finished goods transfers, and material receivals sections form the warehouse area. The Blacktown site operates 12-hour shifts throughout the week, a day shift (3am to 3pm) and an afternoon shift (3pm to 3am). On afternoon shift, there are up to 9 personnel working in the warehouse area, this consists of 7 in robot case handling, pallet wrapping, and finished goods transfers, 1 in material handling (Receivals Operator) and 1 person working in the wastewater treatment plant that supports receivals. The 9 personnel working in the warehouse area report to the Production Supervisor. The Production Supervisor reports to me as the Manufacturing Manager.
6. The Receivals Operator role is responsible for the receival of incoming goods, forklift operation, potato truck unloading and other tasks (Appendix 40). I describe each of these briefly below.
7. Receival of incoming goods: Incoming goods for manufacturing include film, cases, raw materials, and empty pallets. Each of these are received in the Warehouse which is located on Blacktown site. The Receivals Operator is required to take materials from the warehouse to the manufacturing area using a forklift.
8. Forklift operation - Pallets are stored against the warehouse or the fence, cases (depending on storage) would be put in the warehouse or left outside, and film goes to another warehouse. This is done by use of a forklift. Bringing materials from the warehouse to the manufacturing side is done by use of a forklift.
9. Potato truck unloading – The Receivals Operator ensures all appropriate paperwork is completed for the unloading potatoes, they assist the truck driver to reverse the truck on to the conveyor belt, making sure the truck is lined up correctly and there are no spillages. This requires walking up four steps to go on a platform to ensure the truck is backed up on to unloader correctly. For most deliveries, there are potatoes which are spilled during this process, on the ground, which need to be shovelled on to the conveyor belt. [6]
At the time of his dismissal (on 15 October 2021), the Applicant:
a) was 64 years of age; and
b) had the following on-going health conditions: hypertension, high blood pressure, high cholesterol, abdominal aortic aneurysm, arthritis in the knees, coronary artery disease, obstructive sleep apnoea, kidney problems (specifically a renal cyst), and breathlessness impacting upon his ability to engage in physical exertion or standing for long periods of time.[7]
The Applicant was employed to work in the RFO role. That is the role he was performing at the time of his dismissal (albeit in a modified restricted form). The duties of the RFO role are set out in the Respondent’s RFO position description (also called the RFO Job Dictionary).[8]
I accept the following evidence of Ms Mac, in relation to injury management at the Respondent’s workplace:
“6. SBA [Snack Brands Australia] has an injury management process which facilitates the risk review of all work and non-work-related injuries and illness, as part of WHS management system known as the Health and Hygiene Standard (Appendix 0). This standard assists in managing the safety risk and ensuring employees are safe to return to work in consultation with medical review. SBA aims to return all employees when functionally possible to their pre-injury role.
7. The injury management process involves a review of functional requirements of the tasks of each occupation by the treating medical practitioner or an occupational physician to ensure our employees can return to work in a safe and sustainable manner. In conducting this assessment, SBA provides to the relevant medical practitioner, a job dictionary (which is a detailed task analysis of the relevant position), a ‘Recover Better at Work’ form, and any other relevant employment documentation.
8. The SBA job dictionary is completed via an independent qualified third-party health professional through Recover. It involves a formal assessment onsite of the duties and functional requirements of the role. The relevant department manager will sign off and approve that the Job Dictionary is accurate. Job Dictionaries are a versatile tool used by organisations in a number of different contexts.
8.1 The purpose of a Job Dictionary includes:
(a) To assess and analyse the range of duties available at Snackbrands.
(b) Assist when providing reasonable adjustment or alternative roles to employees.
(c) To enable Snackbrands to provide suitable duties to injured employees. This assists in improving return to work rates and return to work sustainability following a workplace injury.
(d) To assist with identifying key risk areas within the business.
(e) To provide criteria for physical and psychological demands of work roles within Snackbrands in order to assist with recruitment, including pre-employment screens.
(f) Provides an objective description of work roles for assessments such as fitness for duties, independent medical examinations, functional capacity evaluations etc.
(g) Enables effective communication with treating health practitioners by outlining the physical and psychological requirements of each work role. The treating health practitioner can then objectively decide which duties an injured employee is fit to perform.
9. The 'recover better at work' form is used to assist with gathering information from the treating medical practitioner about conditions, restrictions, medications to ensure SBA is complying with the duty of care under the Work Health and Safety Regulations. This assists in managing the risk and ensuring that employees return to work in a safe and sustainable manner. The questions on the form are specific to the condition that we are made aware of and may impact the employee’s ability to perform the inherent requirement of the role. The form is always completed by a treating medical practitioner, either a GP or specialist. At times SBA seeks guidance from an independent occupational physician when the risk is assessed as high or long term. (Appendix 5, 6, 7).
10. The treating medical practitioner sends the completed recover better at work forms to the employee and SBA.
11. If there are any work restrictions identified by the treating medical practitioner, SBA review any suitable duties to accommodate where possible, governed by the prognosis reported by the medical practitioner. The process continues until the employee recovers and is able to safely return to their pre-injury role.”[9]
On 21 May 2019 the Applicant underwent heart surgery. The Applicant was off work on leave during the period 14 May 2021 to 2 July 2021 (i.e. pre and post his heart surgery).
Shortly after his heart surgery, the Applicant’s treating doctors diagnosed the Applicant with an “abdominal aortic aneurysm” that required significant surgery to rectify.
By way of fitness for work (“recover better at work”) assessment dated 15 July 2019, the Applicant was subjected to restrictions in his RFO role by Dr Farmer (Applicant’s Vascular and Endovascular surgeon).[10]
The Applicant had leave from 11 November 2019 until 6 January 2020, during which time he underwent surgery for his abdominal aneurysm.[11]
I accept the following evidence of Ms Mac, in relation to the various medical assessments of the Applicant:
“After multiple surgeries, various medical treatments and consultation with Tony Mueller’s treating practitioners Snack Brands required an understanding of the risk, prognosis/diagnosis to ensure a safe workplace and sent Tony Mueller to Sydney Occupational Health. Tony Mueller participated in independent medical examinations conducted by Dr Abeyaratne, Occupational and Environmental Physician, at Sydney Occupational Health, on the 26 June 2020, 11 December 2020 and 5 March 2021. A summary of the reports are below:
(a) 26 June 2020 - This assessment was completed as per the recommendations outlined by Tony Mueller’s treating practitioner Dr Farmer, as well as Tony Mueller having excessive time off due to a laceration on his finger from the 13 June 2020 to the 30 June 2020. In the report, Dr Abeyaratne stated “Considering the available medical evidence, in my opinion he is currently fit to undertake light to moderate level physical activities, and I would recommend the following restrictions:
(i) Lifting capacity – avoid repetitive lifting >10Kg
(ii) Squatting Kneeling – avoid deep squatting and kneeling
(iii) Avoid strenuous activities such as shovelling and carrying heavy loads up stairs
(iv) Avoid pushing and pulling >10Kg
In the recommendations Dr Abeyaratne stated: Recommend review in 3 months with the following information from his treating doctors:
(v) Correspondence from his General Practitioner indicating his status of blood pressure management and compliance with treatment.
(vi) Correspondence from Dr Farmer regarding 6 monthly follow-up of the aneurysm repair.
(vii) Correspondence from the Cardiologist (Dr Olinga) regarding his cardiac status including most recent investigation results.
(viii) Correspondence from the Sleep Specialist noting management of sleep apnoea, compliance with use of CPAP and opinion regarding levels of fatigue”. (Appendix 9).
(b) 11 December 2020 - This assessment was completed due to Dr Abeyaratne’s recommendation for a three month follow up. Snack Brands Australia required a further assessment following an incident on 1 December 2020 whereby Tony had performed an unsafe act whilst driving a forklift resulting in the forklifting going into pedestrian walkway barrier. Snack Brands wanted to ensure that cognitive risk had not changed or restrictions had not contributed to the incident. Dr Abeyaratne stated “Considering the medical evidence provided, in my opinion he is fit to return to forklift operation as planned. Mr Mueller given his cardiovascular comorbidities, may pose a risk with heavy physical exertion in hot environmental conditions. Mr Mueller is fit to return to all tasks in receivables provided that adequate control measures are in place to prevent risks in hot environmental conditions as stipulated in the code of practice and guidance material provided by safe work Australia. Please do not hesitate to contact me if you wish to discuss further on this matter.” Dr Abeyaratne reported Tony Mueller could return to his preinjury duties. Snack Brands had a meeting with Tony Mueller on the 21 January 2021 to advise of the outcome from Dr Abeyaratne. Warren Gould, sent an email to me on the 21 January 2021 raising concerns regarding Tony Mueller’s shortness of breath (Appendix 13).
(c) 5 March 2021 –Snack Brands sent an email to Dr Abeyaratne on the 28 January 2021 advising of the concerns. Dr Abeyaratne responded via email on the 29 January 2021 stating “Following our conversation yesterday, I think it would be appropriate to restrict Tony returning to unloading of trucks duties at this stage.”
Dr Abeyaratne also stated in the email dated the 29 January 2021 “I note that Tony has an appointment with Dr Olinga (Cardiologist) in mid-February and therefore I would recommend re-assessing his capacity following this appointment. I will send a referral letter to Dr Olinga if you could please pass it on to Tony. If you would like, you can include your questions”. (Appendix 14) Further to this I received an email from Dr Abeyaratne on the 27 February 2021 stating “I spoke to Dr Olinga last night. He has provided new information and therefore, Tony needs to be assessed again. I will be available on 5 March 2021 at earliest or the week after. Please also provide me of a brief description of all the concerns his supervisor/ manager have so I can consider these at the next review”. (Appendix 12)
21. Tony Mueller attended the appointment of the 5 of March 2021. Following that assessment, Dr Abeyaratne provided a further report (Appendix 11).
22. In the report dated 5 March 2021 Dr Abeyaratne states in question 4 “please refer to the conclusions and recommendations on page 6 for a description of his current capacity.
Considering the nature of Mr Mueller’s conditions and taking into consideration the natural history of such conditions, the restrictions are unlikely to change in the foreseeable future”.
23. Following receipt of medical prognosis regarding a return to normal duties as reported by Dr Abeyaratne on the 5 March 2021 for Tony Mueller, his capacity to return to normal duties was unlikely due medical restrictions. Dr Abeyaratne reported there was no foreseeable change in the likely future. On review of this recommendation it affirmed Mr Mueller would not be able to return to his pre injury duties and meet the inherent requirements. I sent an email dated the 18 March 2021 to coordinate a meeting with Abeda Derwash, HR Manager and Warren Gould, Manufacturing Manager, to advise them of the risk, following the 15 months of suitable duties and assisting in Tony Mueller’s non work related injury management.
…
25. In refer to paragraph 15 of Applicants Outline of Argument Mr Mueller states that his treating practitioner did not advise of any restrictions at work. As noted at paragraph 25 above, Mr Mueller's treating practitioner, Dr Farmer advised SBA of the following restrictions: “Walking up/downstairs, cannot carry upstairs” and “truck driving, if applicable, don’t operate truck”, and in question 5 referring to frequency of monitoring “six monthly”, as set out in the Recover Better at Work Forms dated 15 July 2019 and 20 December 2019 (Appendix 5 & 6).”[12]
By way of Fitness For Duty Report by Dr Mahima Abeyarathe, Specialist Occupational Physician, dated 5 March 2021 (Expert Report), the Applicant was assessed as having the following restrictions upon his physical capacity:
“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.”[13]
On 9 April 2021, the Respondent wrote to the Applicant asking him to show cause as to why his employment should not be terminated because of his inability to perform the inherent requirements of the RFO role (Show Cause Letter). The Show Cause Letter reads:
“Dear Tony,
Your employment with Snack Brands Australia
We have been working with you since December 2019, to support you during your treatment of numerous non-work-related illnesses which include abdominal aortic aneurysm, coronary artery disease, obstructive sleep apnoea, arthritis of the knees and shortness of breath, with a view to having you return to full time duties as a Receivals Operator.
You attended a meeting with Anita Mac, WHS Manager and Warren Gould, Manufacturing Manager on 17 March 2021, where you were provided the findings from the most recent independent fitness for duty assessment you participated in on 5 March 2021, with Occupational Physician Dr Mahima at Sydney Occupational Health.
Dr Mahima following your assessment and consultation with your treating medical practitioners’ including Dr Farmer (Vascular Surgeon), Dr Olinga (Cardiologist), and Dr Johnson (Thoracic Physician), has made recommendations around your functional capacity and prognosis regarding your recovery.
Dr Mahima’s recommendations for restrictions include that you:
· avoid lifting weights over 5 kg,
· avoid squatting and kneeling,
· avoid strenuous activities such as shovelling, carrying heavy loads upstairs, and
· avoid repeated climbing up and down step ladders.
Dr Mahima also states in the independent fitness for duty assessment report that considering the nature of your conditions and taking into consideration the natural history of these conditions the recommended restrictions are unlikely to change in the foreseeable future.
You received a copy of this fitness for duty assessment report on 26 March 2021.
Accommodations to assist you:
Snack Brands Australia (SBA) have since December 2019 rostered an additional full-time resource on your shift to complete the duties of your role as a Receivals Operator that you were unfit to undertake.
We have assessed whether continuation of this arrangement is possible or if there are any other reasonable accommodations that could be made to assist you to perform the inherent requirements of your position safely.
Unfortunately, it is no longer feasible to continue to maintain an additional resource and SBA have not identified reasonable alternatives at this time.
Alternative positions:
SBA have assessed whether there are alternative positions within the Warehouse and/or Factory that you may be capable of safely performing. The need for training in these alternative roles was recognised and would be fully supported if suitable alternative positions were identified.
SBA have assessed your capacity against the physical demands of the following roles:
· Warehouse Operator,
· Packaging Operator,
· Packer,
· Seasoning Operator,
· Processing Operator,
· Processing Forklift Driver,
· Oberlin Operator, and
· Labour Coordinator.
At this time, the physical demands of each role as prescribed in the current job dictionary precludes you from being able to safely perform the role.
Your fitness for work – intended cessation of your employment:
As you know your health conditions have prevented you from performing your pre-injury duties since at least December 2019 and SBA has during this time made significant effort to accommodate your restrictions by providing suitable duties and other reasonable accommodations.
Unfortunately, you remain unable to perform the inherent requirements of your position as a Receivals Operator, SBA considers it is not foreseeable that you will be able to return to work and fulfil those inherent requirements now or in the near future.
This view is reinforced by:
· the nature and inherent requirements of the role of a Receivals Operator, including the nature of the tasks required to be performed (specifically to ensure safety) such as potato unloading; and
· SBA's duty of care and workplace health and safety obligations to you and other workers at SBA.
As a result of the view concerning your ability to perform your role, SBA is considering terminating your employment.
Show cause:
Any decision regarding your ongoing employment with SBA will be given due and proper consideration, termination of employment is not a decision made lightly. Accordingly, we would like to give you the opportunity to provide any further information you would like us to consider before we make a final decision about your ongoing employment.
Please provide your response to me via email at [email protected] by 2.00pm on Friday 16 April 2021 or attend a meeting at 2.00pm Monday 19 April 2021 in the Blacktown Meeting Room. Anita Mac and I will be present at this meeting.
Please attach any documents or other material you would like to be considered.
You are welcome to have a support person in attendance at this meeting if you wish.
If you do not attend the meeting, or provide any further material for our consideration, we will consider the matter and decide how to proceed based on the information presently available.
We take this opportunity to remind you that SBA’s employee assistance provider LifeWorks, provides confidential counselling to SBA employees. We encourage you to use this service if you require assistance. LifeWorks can be contacted on 1300 XXX XXX.
If you have any questions about this letter, please contact me on 04XX XXX XXX.
Faithfully,
Warren Gould
Manufacturing Manager”[14]
(redaction added)
The Applicant’s response to the Show Cause letter was delayed or otherwise suspended.[15] On 9 July 2021 the show cause process recommenced.[16] The 9 July 2021 letter to the Applicant reads:
“Dear Tony,
We refer to attached show cause letter issued to you on Friday, 9 April 2021.
The requirement to respond to that letter was suspended while other processes were
undertaken.
Snack Brands now requires your response to that letter by Friday, 16 July 2021.
You are directed to attend a meeting to provide any additional oral response on Monday,
19 July 2021 at 2.00pm in the Blacktown office Meeting Room.
If a response is not received from you on Friday, 16 July 2021 and if you do not attend the meeting on Monday, 19 July 2021, then Snack Brands may proceed to make a decision concerning your employment on the information that is presently available to it.
If you have any questions about this letter, please contact me on 04XX XXX XXX.
Kind Regards,
Warren Gould
Manufacturing Manager
Snack Brands Australia.” [17]
Yet a further letter was sent to the Applicant concerning the show cause process on 26 July 2021.[18]
There were further delays in the show cause process, however, ultimately the Respondent had regard to the Applicant’s responses (to the show cause letters) prior to determining to dismiss him.[19]
On 15 October 2021, the Respondent dismissed the Applicant in writing (Termination Letter). The dismissal took effect that day. The Termination Letter reads:
“Dear Tony,
Cessation of your employment with Snack Brands Australia
We refer to the show cause letter sent to you on 9 April 2021, and the further letters of 9 July 2021 and 23 July 2021, concerning that letter. We acknowledge receipt of
correspondence from your daughter on 21 and 22 July 2021; and to your earlier letter of 13 July 2021.In the show cause letter of 9 April 2021, you were asked to show cause why your
employment should not be terminated due to you being unable to perform the inherent
requirements of your role as a Receivals Operator.Snack Brands has considered the responses in the correspondence received from you, or other persons including your daughter, on your behalf.
As set out in the letters dated 9 April 2021 and 23 July 2021, the information available to Snack Brands demonstrates you have been unable to perform the full duties of your role as a Receivables Operator since at least December 2020 and will not be able to do so into the foreseeable future.
Your physical capacity is, on the medical information available to Snack Brands, affected by various general health conditions, each of which are non-work-related. An independent for duty assessment you participated in on 5 March 2021, with Occupational Physician Dr Mahima Abeyaratne at Sydney Occupational Health, determined that you have restrictions on your physical capacity, requiring that you:
• avoid lifting weights over 5 kg,
• avoid squatting and kneeling,
• avoid strenuous activities such as shovelling, carrying heavy loads upstairs, and
• avoid repeated climbing up and down step ladders.Those restrictions were considered to be unlikely to change in the foreseeable future.
Those restrictions on your capacity, as determined by Dr Abeyaratne, followed consultation with your treating practitioners’ including Dr Farmer (Vascular Surgeon), Dr Olinga (Cardiologist), and Dr Johnson (Thoracic Physician).Your general health conditions have prevented you from performing your pre-injury duties since at least December 2020, and you remain unable to perform the inherent requirements of your position as a Receivables Forklift Operator. The view that you cannot perform the inherent requirements of your position reinforced by:
· the nature of the tasks required to be performed (specifically to ensure safety) such as potato unloading; and
· SBA's duty of care and workplace health and safety obligations to you and other workers at SBA.
You have not provided any medical or other information demonstrating that you can perform the inherent requirements of your role as Receivables Operator.
Accordingly, SBA advises that due to your inability to perform the inherent requirements of the Receivables Forklift Operator role, that SBA has decided to terminate your employment.
Your employment with Snack Brands will cease on 15 October 2021.
You will receive payment in lieu of notice of termination, together with any accrued but
untaken annual and long service leave you are entitled to. The payment will be made to
your normal bank account.We take this opportunity to remind you that SBA’s employee assistance provider LifeWorks, provides confidential counselling to SBA employees. We encourage you to use this service if you require assistance. LifeWorks can be contacted on 13XX XXX XXX.
If you have any questions about this letter, please contact me on 04XX XXX XXX.
Sincerely,
Warren Gould
Manufacturing Manager
Snack Brands Australia”[20]
(redaction added)
Statutory provisions
Section 385 of the Act reads:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The parties are not in dispute as to the following:
(a) The unfair dismissal application was made within the period required by s.394(2) of the Act.
(b) The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c) The Applicant had been “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d) The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e) The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
Section 387 of the Act provides what matters must be taken into account by the Commission in determining 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”.
I turn to consider each of these matters.
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and not “capricious, fanciful, spiteful or prejudiced”.[21] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[22]
Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job),[23] and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.[24]
The Applicant submits that there are a number of reasons as to why there was no valid reason for his dismissal.[25] In this regard, as best as I can understand it, on the issue of valid reason, the Applicant says that:
a) Some of the duties upon which his fitness and capacity were assessed against, in terms of the RFO role:
· were no longer performed by him or his department;[26]
· could have been ameliorated or resolved by reasonable work adjustments;[27] and/or
· were duties that only needed to be undertaken because the Respondent did not have safe systems of work, or did not have in place appropriate controls to mitigate risks.[28]
b) Because of the excessive amounts of overtime that the Applicant had worked in the past, the RFO role that he performed was always a two-person role.[29] The additional employee that the Respondent utilised whilst the Applicant was performing suitable duties was not a supernumerary position, or part of a split (temporary) role. In other words, so the argument goes, because the work required to be performed necessitated two RFOs on the Applicant’s shift, the employee who did not have fitness for work restrictions could do those aspects of the tasks or duties for which the Applicant has restrictions, meaning that there is no need for the Applicant to be dismissed. It appears that another angle to this argument by the Applicant is that the Respondent’s claim that the work to be performed only required one RFO role was manufactured in order to dismiss the Applicant (i.e. the amount of work to be performed ‘always’ required two RFOs, and the Respondent was now falsely claiming that the work was only a one-person role so as to justify its dismissal of the Applicant).[30] This latter argument is said to have its foundation (at least in part) in words taken from the Respondent’s website indicating a growth in packets produced by the Respondent from 15 million in 1996, to 200 million current day.
c) The Respondent misled the medical specialist who completed the Applicant’s medical assessments via supplying this specialist with false information about duties that were no longer performed (or required to be performed) by the Applicant in the RFO role, or other employees in the Applicant’s Receivables Department.[31]
d) There is no evidence that the Applicant was deemed not competent in his role. In the absence of such evidence, there was no valid reason to dismiss him.[32]
e) The Respondent did not make reasonable attempts to find a suitable alternative role for the Applicant that could accommodate his restrictions, be that an alternative role, or a modified or adjusted alternative role.
The reason for dismissal of the Applicant, relied upon by the Respondent, is that the Applicant, at the time of his dismissal, was unable to perform the inherent requirements of his full time RFO role (now or into the future by reference to the conclusions in the Expert Report).[33] Further, the Respondent says that:
a) there were no reasonable adjustments that the Respondent could make to the Applicant’s RFO role, or the workplace, to enable him to perform his RFO role with his restrictions; and
b) there were no ‘available’, or otherwise suitable positions, to redeploy the Applicant into.[34]
In these circumstances, “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” and “the reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.”[35]
In determining that the Applicant was unable to perform the inherent requirements of his full time RFO role (now or into the future), the Respondent relies upon the findings of and conclusions in the Expert Report. The Applicant does not challenge (by way of other medical evidence or medical opinion) the findings of and conclusions in the Expert Report in relation to his restrictions.[36] In other words, despite the Applicant being under the care of six different medical practitioners/specialists (Dr Rod for his general medical status, Dr Olinga for his cardiac status, Dr Farmer for his abdominal aortic aneurysm, Dr Johnson for his sleep apnoea, a renal physician for his renal kidney cyst, and an orthopaedic surgeon for his knees), the Applicant did not rely upon any medical evidence to challenge or otherwise qualify the restrictions, or the on-going nature of such restrictions, as set out in the Expert Report. Further, at the time of the hearing (in February 2022), Ms Kelly conceded that the Applicant remained incapacitated.[37]
I observe that the Expert Report is extremely thorough. Its findings are based upon Dr Abeyarathe’s expert specialist medical opinion after examining the Applicant, consulting with the Applicant, consulting with the Respondent, reviewing and considering the Applicant’s medical records and history (including via direct contact with his treating doctors and specialists), undertaking relevant investigations, taking into account any relevant corroborating information, and having regard to relevant legislation and safety and driving standards.[38]
One of the Applicant’s complaints in relation to the Expert Report is that it has assessed him against duties that are no longer performed by him (in the RFO role, or within the Receivables Department that he worked in). However, the evidence is completely to the contrary. Indeed, under the heading “Occupational History”, the Expert Report states:
“Mr Mueller is a 63-year-old gentleman who reported that he has been working as a storeman in a full-time role for 18 years. He reported that his role as a store person has slightly changed following undergoing surgery in November 2019 for aneurysm repair. Prior to the surgery he reported that he was involved in receiving goods from trucks which required shovelling potatoes and frequent stepping up and down stairs. Mr Mueller reported that following the surgery, he has been completing tasks inside receivables which includes regular forklift operations to deliver items to the production teams that at times requires lifting up to 10 kg.
After discussing his duties on 26 June 2020 with you, you clarified that prior to the surgery, Mr Mueller was undertaking full duties in receivables which included unloading trucks with goods followed by supplying goods to the production teams. It appears that the initial tasks of receivables involved manual tasks that included shovelling of spilled potatoes and mobbing up and down ramps in the unloading process of the trucks. The latter part of receivable duties involves supplying goods to the production teams. It appears that Mr Mueller has been undertaking the latter half of the receivables in the past six months working in a fixed shift from 2pm to 2am.
As per the discussion with you and Warren on 17 December 2020 you have asked me to assess Mr Mueller’s fitness to return to all duties (that includes unloading trucks and supplying goods to production teams) required to be undertaken in Mr Mueller’s role in receivables. You have advised me that the tasks maybe allocated three times per week.”[39]
The foregoing excerpt from the Expert Report highlights that the Applicant was directly consulted about the nature and scope of the duties that the Applicant says he was performing at the time he was assessed by Dr Abeyarathe. Further, Dr Abeyarathe based her assessment of the Applicant having regard to her consultations with the Applicant. In other words, to the extent that the Applicant asserts that Dr Abeyarathe assessed the Applicant against tasks that were no longer performed by him in the RFO role, or otherwise relied upon false or misleading information as to the RFO role and/or the work that the Applicant was performing in the RFO role, I reject the assertion. It is contrary to the express words of the Expert Report. It is also contrary to the reality that whilst some of the tasks that the Applicant was assessed against may not be performed frequently or regularly, they are not peripheral or non-essential tasks, or tasks that might be said to be negotiable or flexible in the performance of the RFO role.[40]
The contention that the Applicant’s role was a two-person role is also rejected. It is a contention not only unsustainable on the evidence, but contrary to the evidence.[41] Likewise, the contention that because the Applicant worked a significant amount of overtime, the shift that the Applicant worked required two persons in the RFO role cannot be sustained. The evidence is that the voluntary overtime worked by the Applicant was undertaken on extra shifts worked by the Applicant (i.e. extra capacity was required across the whole of the work cycle, not the Applicant’s shift).[42]
To the extent that the Applicant submits that his restrictions in respect of the duties to be performed in the RFO role could have been overcome by reasonable work adjustments, or existed only because the Respondent was not maintaining safe work systems, I am unable to find evidentiary support for the submission. Indeed, the evidence is that whilst some work adjustments were made in the form of mechanical aides (for example, a scoop was introduced, to be attached to the forklift, to clean up ‘large’ potato spills),[43] and independent risk assessments were conducted to reduce risks via reasonable work modifications,[44] certain types of manual or physical work inevitably remained as inherent aspects of the RFO role (for example, shovelling potato spillage, and squatting down to retrieve spilled potatoes that have fallen under shelving and machinery).[45]
The inherent requirements of a role are to be ascertained objectively by reference to what is actually required of the job in question (taking into account the relevant terms of employment, job descriptions and duty lists, the manner in which work is actually performed, and the nature of the business and workplace at which the work is performed). The focus is upon the essential elements of the job, not its remote or peripheral tasks. However, the inherent requirements of a role are not limited to physical abilities, competencies and skills, but extend to the ability to ‘safely’ perform a job (from the perspective of the employee doing the job, and that of his or her fellow employees).[46]
Whilst there was debate and conjecture before me as to the actual tasks performed by the Applicant in the RFO role, the findings of the Expert Report are clear. Those findings are that whilst the Applicant is fit to continue operating a forklift, he is restricted from lifting weights over 5kg, and is to avoid squatting and kneeling, shovelling, and repeated climbing up and down step ladders. Even taking the Applicant’s case at its highest, the inherent requirements of the RFO role extend beyond the mere driving of a forklift.[47] Spillage of potatoes regularly occurs (each shift) when potato trucks are being unloaded. Whilst some larger spills can be dealt with via the forklift scoop, there will always be potato spillage that requires shovelling, and squatting and kneeling. Further, an inherent task of the RFO role is to climb up and down step ladders. In a real and practical sense, the only way for the inherent requirements of the RFO role to be conducted such that the Applicant’s restrictions are observed, is for an additional employee to be engaged to do those aspects of the RFO role that the Applicant either cannot perform, or is restricted from performing. The RFO role is not a two-person role, nor is it a role that is split across the three persons working the Applicant’s shift in the Receivables Department. Whilst the Applicant’s supervisors may well, from time to time, allocate other staff on shift (in different roles, such as water treatment) to assist with the RFO role ‘to get the job’ done, such a practice is not one that ought to remove or otherwise diminish the inherent requirements of the RFO role on a standalone basis, or the assessment of same by reference to the Applicant’s restrictions as set out in the Expert Report. For completeness, I also reject the Applicant’s assertion that it would have somehow been reasonable for him to only drive the forklift going forward. The evidence is that the driving of a forklift is but one aspect of the RFO role. On any analysis, driving a forklift is not “the” RFO role.
Whilst the Applicant says that the Respondent did not make reasonable attempts to find a suitable alternative role for the Applicant that could accommodate his restrictions, be that an alternative role, or a modified or adjusted alternative role, he also fails to identify any suitable alternative role that was actually ‘available’ (at the time of his dismissal) that he could have been reasonably redeployed into that would also accommodate his restrictions.
In conclusion, for the reasons set out on paragraphs [33] to [41] of this decision, I find that at the time of his dismissal by the Respondent, the Applicant had the restrictions set out in the Expert Report, being restrictions that prohibited him from safely carrying out the inherent requirements of the RFO role.
I also find that, at the time of the Applicant’s dismissal:
a) based upon the Applicant’s restrictions, and the inherent requirements of the RFO role, there were no reasonable modifications that could have been made to the RFO role such that the Applicant would have been placed into a position that he (himself) could safely carrying out the inherent requirements of his RFO role; and
b) there is no evidence of any available, and suitable, alternative role that the Applicant could have been redeployed into that would safely accommodate his restrictions.
In view of my findings set out in paragraphs [42] and [43] above, I find that at the time of the Applicant’s dismissal, there was a valid reason for his dismissal based upon his capacity (including the effect of that capacity (incapacity) on the safety and welfare of himself and other employees). That valid reason was the inability of the Applicant to carry out the inherent requirements of his RFO role. This weighs against any ultimate finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
Whether the Applicant was notified of the valid reason (s.387(b)); and Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct (s.387(c))
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.[49]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning their capacity or conduct so as to be enable them to respond to the allegations and have an ‘opportunity’ to defend themselves.[50] That said, procedural fairness is neither a science, nor term of art. It requires an employee protected from unfair dismissal to be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. There is no particular form required for this ‘opportunity to respond’, and an employee may be given such an opportunity in person, in discussion, or in writing. An opportunity to respond is to be provided before a decision is taken to terminate an employee’s employment. The opportunity to respond does not require formality or technicality, and is to be considered in a common sense manner.
The Show Cause Letters dated 9 April 2021, 9 July 2021 and 26 July 2021 clearly notify the Applicant of the proposed reason for his dismissal (based upon his inability to perform the inherent requirements of his role) (s.387(b)).[51] They also provide the Applicant with an opportunity to respond to his proposed dismissal (s.387(c)). It was a matter for the Applicant as to whether he took up that opportunity. The evidence is that the Applicant did take up that opportunity, and that the Respondent had regard to the Applicant’s responses prior to making its decision to dismiss him.[52]
The Applicant complains that he was not provided with 24 hours’ notice of a meeting to occur on 14 April 2021. The evidence is that the Applicant himself agreed to attend the meeting with less than 24 hours’ notice, but then failed to show up (i.e. the meeting did not occur with the Applicant in attendance).[53] Further, the Applicant had many months to respond to the allegations as to his inability to perform the inherent requirements of the RFO role before he was dismissed It appears that the Applicant seeks to make a technical point that he was not provided with 24 hours’ notice of a meeting. Putting aside that there is no set rule or requirement for 24 hours’ notice (of a formal or informal meeting) to be provided, even if there was, the reality is that in the events that have happened, the issue is of no practical moment at all.
I note that the Applicant contends that because the Respondent did not produce all of the documents and provide all of the answers to his demands during the show cause process, that he was somehow limited or inhibited from engaging in the show cause process and/or was constrained in his ability to respond to the show cause letters. I reject this contention (see paragraph [53] of this decision below).
In view of my findings at paragraphs [47] to [49] above, I treat the criteria under s.387(b) and (c) of the Act as neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
Section 387(d) of the Act relates only to discussions concerning an employee’s dismissal, and requires the Commission to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. There is no obligation upon an employer to allow their employee to have an “advocate” or “representative” present. A refusal to allow the employee to have an advocate present is not a factor that the Commission is required to take into account under s.387(d) of the Act.[54]
In BlueScope Steel (AIS) Pty Ltd v Agas[55], a Full Bench of this Commission determined that s.387(d) was not invoked during an investigation which could result in a dismissal. In this regard, the Full Bench stated:
“The preparation of an incident report by an employee, at a time broadly coinciding with the occurrence of an incident, does not, it seems to us, invoke the provisions of s 387(d) of the Act in relation to the matters described by an employee in a report. That is, the preparation of a contemporaneous incident report would not ordinarily or necessarily be considered to be a matter involving discussions relating to dismissal.”[56]
I note that on 5 April 2021 the Applicant engaged Mr Padayachy as a workplace investigator with respect to the Applicant’s on-going employment with the Respondent.[57] Both directly and indirectly, the Applicant asserts in these proceedings that the Respondent’s failure to assist, engage with or respond to Mr Padayachy and his workplace investigation was wrong, improper, or gave rise to a denial of procedural fairness or natural justice, and/or inhibited the Applicant from engaging with or properly responding to the show cause process.[58] I reject the Applicant’s assertions and contentions in this regard. In my view, there can be no suggestion that the commencement of a show cause process against an employee gives rise to a requirement upon an employer to engage with an external workplace investigation of the kind initiated by the Applicant. Neither can there be any suggestion that a refusal by an employer to engage with such a process would give rise to a finding of an unreasonable refusal by an employer to allow the Applicant to have a support person present for discussions relating to his or her dismissal. Assisting in discussions, by a support person, in relation to a proposed dismissal of an employee, does not extend to the conduct of a workplace investigation by an employee into his or her employer that seeks, requires or demands wide ranging discovery, document disclosure and document production, and answers to (for want of a better term) interrogatories.
I find that there is no suggestion on the evidence that the Respondent refused to allow the Applicant a “support” person to assist in any discussions relating to his dismissal. I therefore consider this criterion as a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the person had been warned about that unsatisfactory performance before the dismissal
The Applicant’s dismissal does not concern unsatisfactory performance. I therefore treat this criterion as a neutral consideration.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
The parties made no relevant submissions as to either of these criteria impacting upon the Applicant’s dismissal. On the evidence, there is no suggestion that the size of the Respondent (being a large employer) impacted adversely upon the Respondent in terms of the procedures that were followed to dismiss the Applicant. The Respondent employs human resources specialists. I therefore treat the criteria under s.387(f) and (g) of the Act as neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
Any other matters that the Commission considers relevant (s.387(h))
The Respondent made no submissions in respect of this criterion.
The Applicant submitted that the Applicant was misled into signing a consent form in relation to the assessment undertaken by Dr Abeyaratne. He says he thought he was being assessed for a cut to his finger, but ended up being assessed for his fitness to perform the RFO role.[59] However, the terms of the consent form signed by the Applicant expressly state that in signing the consent form “I have reviewed ‘Fitness for Duty Assessment Information’ outlined above and agree with the terms and conditions of undertaking such an assessment”.[60] These terms and conditions in no way limit the Applicant’s assessment to a cut finger. In rejecting the Applicant’s contention that he was misled, I note the comments of Latham CJ of the High Court in Wilton v Farnworth[61]:
“ … a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. …”[62]
Both prior to and throughout these proceedings, the Applicant has raised wide ranging assertions, contentions and allegations as to why his dismissal was unfair. These matters concern (in short summary): 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.[63]
In the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[64], Callinan J observed:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[65]
In my view, none of the matters referred to in paragraph [59] of this decision, in the circumstances of this case, are necessary for me to resolve in the disposition of these proceedings. This is particularly so in circumstances where the findings of and conclusions in the Expert Report as to the Applicant’s restrictions have not been challenged by alternative medical evidence or opinion. That said, it is also appropriate to point out that in relation to the matters referred to in paragraph [59] of this decision:
a) many of these matters have not been articulated or particularised such that the Respondent can be said to be in a position to properly respond to same, i.e. beyond a mere denial;
b) many of these matters are not properly before me to determine, or make findings about (i.e. in the context of an unfair dismissal application);
c) some of these matters are serious and/or scandalous, and absent the appropriate evidentiary foundation for the allegation to have been made in the first place; and
d) nearly all of the allegations appear to arise from or are connected to the investigation and analysis of Mr Padayachy (who was contracted by the Applicant).
In making my findings concerning the real issues to be resolved in these proceedings, I have not relied upon, or given any weight to, Mr Padayachy’s evidence (or the reports authored by Mr Padayachy and tendered by the Applicant in these proceedings).[66] In broad terms, Mr Padayachy’s evidence and reports concern the adequacy and inadequacy of the Respondent in its dealings with the Applicant, and express various opinions about the Respondent and certain members of its management team. Some of the matters in Mr Padayachy’s evidence and reports were not the subject of any evidence before me, other matters arise from inferences said (by way of opinion) to be drawn from documentary evidence, whilst yet other matters rely upon accounts of conversations that Mr Padayachy is said to have had with others. Mr Padayachy’s evidence does not set out what facts he has relied upon as proven, and what facts he has relied upon as assumed, nor do his opinions explain whether they have been based upon proven or assumed facts (or a combination of both). Rather, Mr Padayachy’s evidence appears to have sifted through facts, selectively chosen some of those facts, accepted them as primary facts, not articulated why or how such facts have been chosen or selected, made findings based upon opinion, and then (in some cases) made submissions or argument in support of the Applicant’s case. Mr Padayachy is not a fact finder for the purposes of these proceedings. In my view, his evidence and reports are of no assistance or value in the resolution of the real issues for determination by the Commission in these proceedings.[67]
The Applicant has also submitted that the Applicant’s age, length of service, and unblemished record at the Respondent weigh in favour of his dismissal being unfair. In the circumstances of this case, I do not agree. None of these matters alter the fact that the Applicant’s restrictions (as set out in the Expert Report) prevent him from being able to perform the inherent requirements of the RFO role.
In my view, in all of the circumstances of this case, none of the “other matters” identified by the Applicant weigh in favour of a finding that the dismissal of the Applicant was unfair. I therefore treat the criterion under s.387(h) of the Act as a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
Conclusion
In considering whether the Applicant’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s.387 of the Act to the extent relevant.[68] Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based upon the ordinary meaning of the words in the Act, in their statutory context. Context includes the object stated in s.381(2) of the Act that reads:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.[69]
I have found a valid reason for the Applicant’s dismissal based upon his inability (at the time of his dismissal) to undertake the inherent requirements of the RFO role he was employed to perform (s.387(a)). I have also found that none of the considerations under ss.387(b) to (h) of the Act weigh in favour of a finding that the Applicant’s dismissal was unfair.
Overall, I find that the Applicant’s dismissal was not unfair. Accordingly, an order dismissing the Application filed by the Applicant in these unfair dismissal proceedings will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Deborah Kelly, for the Applicant.
Ms Abeda Derwash, HR Manager, for the Respondent.
[1] CB, pp.117-122.
[2] Ibid, pp.123-132.
[3] Ibid, pp.430-434.
[4] Ibid, pp.435-439 (excluding annexures).
[5] Ibid, pp.137-138.
[6] Mr Gould Statement, at [5]-[9].
[7] Transcript, PN329. See also Fitness For Duty Report by Dr Mahima Abeyarathe, Specialist Occupational Physician, dated 5 March 2021 (Expert Report) (CB, pp.175-183), and email from Mr Gould to Ms Mac and Ms Derwash dated 21 January 2021, 3.32pm (CB, p.480).
[8] Respondent’s Appendix 40.
[9] Ms Mac Statement, dated 19 January 2022, at [6]-[11].
[10] Respondent’s Appendix 5.
[11] Mr Mueller Statement, undated, at [28].
[12] Ms Mac Statement, dated 19 January 2022, at [20]-[23] and [25]. See also Mr Gould Statement dated 19 January 2022, at [15]-[31].
[13] Expert Report, CB, p.181 (p.7 of Expert Report).
[14] CB, pp.483-485. See also Respondent’s letter to the Applicant dated 15 April 2021, CB, p.221.
[15] Mr Gould Statement dated 19 January 2022, at [22]-[29].
[16] Ibid.
[17] CB, p.591.
[18] Ibid, pp.561-563.
[19] Mr Gould Statement dated 19 January 2022, at [22]-[29]. See also CB, pp.552-560, 564-572 and 592-593 for correspondence between the parties relevant and connected to the show cause process and the Applicant’s responses.
[20] CB, pp.486-487. I note that a meeting with the Applicant, Ms Kelly and Ms Audisho occurred on 14 October 2021, the purpose of which was to advise the Applicant of the outcome of the show cause process.
[21]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[22]Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[23]Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
[24]See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[25] See especially, Applicant’s Submissions, undated, at [1]-[16], and Applicant’s Reply Submissions, 27 January 2022, at [55]-[59]. Transcript, PN569-PN574.
[26] For example, “carrying heavy loads upstairs”.
[27] For example, for the Applicant to use a scissor lift instead of repeatedly climbing up and down step ladders.
[28] For example, the Applicant says that the requirement for kneeling and squatting to occur when spilled potatoes have fallen under machinery is a system of work or risk factor that the Respondent can remove or resolve by putting netting around gaps.
[29] Transcript, PN18, PN28, PN411-PN414.
[30] Ibid, PN18, PN32, PN38, PN66. Applicant’s Reply Submissions, 27 January 2022, at [29]-[30].
[31] Ibid, PN70, PN80.
[32] Ibid, PN13 and PN20.
[33] Respondent’s Submissions, 19 January 2022, at [12]-[30] (CB, pp.422-429).
[34] Respondent’s Submissions, 19 January 2022 (CB, pp.422-429). Respondent’s Closing Submissions, 4 March 2022, at [11]-[21]. Transcript, PN191-PN198.
[35] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, at [22]; X v Commonwealth [1999] HCA 63, at [102].
[36] Transcript, PN133-PN134, PN352.
[37] Ibid, PN111-PN112.
[38] See “Fitness For Duty Report” by Dr Mahima Abeyarathe, Specialist Occupational Physician, dated 5 March 2021. I note that prior to producing her Expert Report, Dr Abeyarathe consulted with the Applicant and his wife, and gave them the opportunity to ask any questions. Dr Abeyarathe notes in the Expert Report that “all their [Mr and Mrs Mueller’s] questions were answered”.
[39] Expert Report, pp.2-3.
[40] Transcript, PN863-PN877, PN883. The Expert Report did not assess the Applicant only in relation to potato unloading duties: see, for example, Transcript, PN594, PN856, PN866-PN877, and PN883.
[41] Transcript, PN379, PN408, PN410, PN417-PN422, PN760, PN885, PN889-PN915, PN1045-PN1051, PN1063, PN1078, PN1087-PN1093. See also Mr Gould Statement, at [10]-[11], [34], and [44] (including the Rosters set out at Appendix 23 of Mr Gould’s Statement).
[42] Ibid, PN698-PN699, PN1078-PN1081, PN1088.
[43] Ibid, PN751-PN756.
[44] Ibid.
[45] Ibid, PN326-PN338, and PN751-PN756.
[46] See, for example, findings of the High Court of Australia as to meaning of the term ‘inherent requirements’ in X v Commonwealth (1999) 200 CLR 177. Whilst this case concerned ‘inherent requirements’ for the purposes of s.15(4) of the Disability Discrimination Act 1992, I see no basis as to why I might not apply the court’s reasoning in determining the inherent requirements of the RFO role in this case.
[47] Transcript, PN306-PN307, PN326-PN328, PN331, PN338, and PN340.
[48] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[49] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[50] Wadey v YMCA Canberra [1996] IRCA 568.
[51] CB, pp.483-485, 561-563 and 591. See also CB, pp.552-560 and 564-572 for correspondence between the parties relevant and connected to the show cause process. Transcript, PN370-PN372.
[52] Mr Gould Statement dated 19 January 2022, at [22]-[29].
[53] Transcript, PN961-PN989.
[54] Victorian Association for the Teaching of English Inc v de Laps[2014] FWCFB 613, at [52].
[55] [2014] FWCFB 5993.
[56] Ibid, at [76].
[57] CB, pp.222-223.
[58] Transcript, PN990-PN992, PN1010-PN1028.
[59] Ibid, PN38, PN90, PN92, PN96 and PN785.
[60] CB, pp.64-65.
[61] Wilton v Farnworth (1948) 76 CLR 646.
[62] Ibid, at 649. See also Ms Mac Statement, at [27].
[63] See also Respondent’s Closing Submissions, 4 March 2022, at [23].
[64] (2006) 231 ALR 663; [2006] HCA 55.
[65] Ibid, at [172].
[66] Mr Padayachy Witness Statement, undated (CB, pp.123-132); “Factual Investigation Final Report” by Mr Padayachy, dated 24 December 2021 (CB p.262-280); Introduction Letter from Mr Padayachy to Respondent dated 12 April 2021 (CB, pp.222-223); “Factual Investigation Final Report – Additional Document Review” by Mr Padayachy, dated 27 January 2022 (CB, pp.612-628). Note Transcript, PN435-PN515.
[67] See HG v Queen (1999) 197 CLR 414; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, at 348-351, and 353.
[68] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674, at [69] (AIRC, 21 March 2002).
[69] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C, at [36]).
Printed by authority of the Commonwealth Government Printer
<PR743879>
1
18
0