William Eskander v Visy Board Pty Ltd

[2021] FWC 3122

[2021] FWC 3122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Eskander
v
Visy Board Pty Ltd
(U2020/10790)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 29 JUNE 2021

Application for an unfair dismissal remedy.

[1] Mr William Eskander (Mr Eskander) was employed by Visy Board Pty Ltd (Visy) until his employment was terminated on 28 July 2020. He made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) claiming that he was unfairly dismissed and seeks reinstatement.

[2] Visy submit Mr Eskander had been absent from work since October 2018 due to an ankle injury and at the time of his dismissal he was unfit to perform the inherent requirements of his position. Visy submit Mr Eskander was dismissed for a valid reason being that he was unable to perform the inherent requirements of his role.

Preliminary matters

[3] Mr Eskander’s application was made within the 21-day period prescribed by s.394(2) of the Act. Visy is not a small business within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply.

[4] At the time of his dismissal the Visy (Coolaroo & Reservoir) Enterprise Agreement 2017 (the Agreement) applied to Mr Eskander’s employment and he earned less than the high-income threshold. Mr Eskander had completed a period of employment with Visy that was at least the minimum employment period required by s.382 of the Act.

[5] Therefore, the issue for me to determine in the first instance is whether the dismissal of Mr Eskander was harsh, unjust or unreasonable.

Procedural Background

[6] This matter was the subject of a conciliation conference on 27 August 2020 however the matter remained unresolved. The matter was subsequently listed for hearing.

[7] I granted permission for the parties to be represented in this matter. Mr Eskander was represented by Mr Millar, of Counsel. Mr Eskander filed a witness statement in these proceedings 1 and gave evidence on his behalf. Visy was represented by Mr Pollock of Counsel. Dr Ralph Poppenbeek, Specialist Occupational Physician2, Dr Craig Staunton, Exercise Scientist3 and Mr John Tsourou Operations Manager Preprint/Coatings at Visy4 each filed witness statements in these proceedings and gave evidence on behalf of Visy.

The evidence

[8] The following summarises the evidence of the parties as presented and the facts as I find them as to provide context for the conclusions I have reached.

[9] The operations at the site Mr Eskander had worked prior to his dismissal involve printing designs onto cardboard sheets, which are then sent to other Visy sites to be corrugated and converted into cardboard boxes.

[10] Prior to his dismissal Mr Eskander had worked at the Pre-Print plant since November 1996. He generally worked either mornings from 7:00am to 3:00pm or afternoon shifts from 3:00pm to 11:00pm. The Pre-Print plant has a total of four printing machines and each machine is operated by a crew of three employees: one qualified Printer who has completed four years of trade school and two Trade Assistants who assist the printer in getting the machines up and running. Mr Eskander’s role was that of a qualified printer and he operated a print machine called the Chadwick (or, “Old 108”). The print machines are between 30 and 50 meters long and up to two or three stories high. Mr Eskander was assisted in his role by two trades assistants.

[11] At times Mr Eskander was required to operate a crane or a forklift moving and loading reels of product into machinery for printing. Mr Eskander was responsible for setting up the printing machines at the start of his shift, checking for paper breaks, rectifying any defects, monitoring print quality and production quantities. In his role, Mr Eskander was at times required to use physical exertion to manoeuvre machinery components. Mr Eskander’s role was not sedentary, it involved some physical capability which included bending over and jolting machines, he was required to walk up and down the machines, squat at times, climb and crawl around the machines and climb up and down stairs. Mr Eskander was also required to push a trolley with ink drums at least once a day to once per week for about 150 to 200 meters. Mr Eskander would generally be on his feet for periods of up to 6 hours per shift.

[12] There were also times when Mr Eskander was required to lift buckets of ink up to 15kg in weight. Mr Eskander would on occasion fill 44-gallon drums which were then loaded into the machines. The 44-gallon drums are usually on wheels and are pushed to the required location however a forklift was sometimes used to move the drums. Mr Eskander would also be assisted in these tasks by the trades assistants. During his employment Visy held no concerns about Mr Eskander’s work ethic or performance and generally considered him to be hard-working.

[13] In September 2018 whilst overseas on holiday Mr Eskander sustained an inversion injury to his ankle whilst stepping onto a bus, he was however able to continue on with his holiday. After returning to Australia Mr Eskander undertook rehabilitation and physiotherapy and his foot was immobilised in a moon boot for a period of four months. Prior to his dismissal Mr Eskander had not returned to work.

[14] Approximately 10 months after sustaining the injury to his ankle, Mr Eskander’s General Practitioner Dr Sheriff referred him to Dr Hamish Curry an Orthopaedic Surgeon. Mr Eskander attended an appointment with Dr Curry and a report dated 29 July 2019 was provided to Mr Eskander. The 29 July 2019 report states that at the time of the consult Mr Eskander suffered from anterolateral pain which was reliably worse with standing and walking. The report states that Mr Eskander was aware of instability on uneven ground and had not attempted to walk more than 1.5 km. Dr Curry also noted that Mr Eskander was having ongoing physiotherapy and strapping his ankle which helped. Dr Curry’s impression was that Mr Eskander had an anterolateral ankle impingement and suggested ongoing physiotherapy for strength and balance. He also recommended Mr Eskander obtain a heel raise and offered him a steroid injection to reduce inflammation which Mr Eskander declined. Dr Curry noted that Mr Eskander had reported that he had returned to 80% of his normal function.

[15] In his report, Dr Curry notes he had formed the impression that Mr Eskander would not harm his ankle by attempting to return to work. He suggested if Mr Eskander’s symptoms persisted and continued to cause him functional impairment despite appropriate nonoperative treatment an ankle arthroscopy and debridement may be beneficial. Dr Curry did not arrange a follow up.

[16] Mr Eskander continued to see Dr Sheriff each month for medical certificates that certified him unfit for work up to and including the certificate issued on 19 September 2019, 12 months after sustaining the original injury. The certificate provided by Dr Sheriff on 19 September 2019 stated that Mr Eskander;

“…is unable to undertake unrestricted work due to ongoing right ankle pain and stiffness. He has seen a specialist ankle surgeon who has recommended cortisone/surgery. MRI scan findings suggest injuries with marrow contusion to right cuboid, right talus and anterior calcaneum and the 4th meta tarsal bone and ATFL ligament fibrosis.”

[17] A subsequent medical certificate was provided to Mr Eskander of the same date which again deemed him unfit for his usual duties until 19 December 2019, however this certificate stated that Mr Eskander was able to perform alternative duties on a trial basis however he was unable to undertake unrestricted work due to his ongoing ankle pain.

[18] Mr Eskander continued to present medical certificates that stated he was unable to perform his usual occupation however he could perform alternate light duties on a trial basis. The certificates also stated that Mr Eskander was unable to undertake unrestricted work due to ongoing right ankle pain and stiffness.

[19] On 18 December 2019 Mr Eskander presented a medical certificate from Dr Sheriff in which it was noted that Mr Eskander had seen the “work doctor” and that he was still unable to undertake unrestricted work due to ongoing right ankle pain and stiffness and he was unable to perform his usual occupation, however he could perform alternative light duties. Mr Eskander continued to present medical certificates of the same nature until 17 July 2020 when he presented a certificate in which Dr Sheriff states that his recommendations had not changed. Mr Eskander remained off work and continued to receive income protection insurance until October 2020 5.

[20] Mr John Tsourou is the Operations Manager Preprint/Coatings, he commenced employment with Visy as a printer and is now responsible for overseeing operations at both the Coatings and Pre-Print plants. Some-time around November 2019, Mr Tsourou made inquiries with the Visy Regional Manager Bacarra Derks (WorkCover & Personal Injury Insurance), to discuss Mr Eskander’s ongoing absence from work. Mr Tsourou’s evidence was that Mr Eskander had continued to provide medical certificates for over 12 months that had little information about his injury or capacity. Mr Tsourou’s evidence was that he needed to obtain a better understanding of the nature of Mr Eskander’s injury so he could make a decision about the role and that due to the nature of role there were no light, unrestricted or any alternative duties that Mr Eskander could perform.

[21] Mr Tsourou’s evidence was that he needed to understand if Mr Eskander was going to come back to work because he needed to make a business decision about his role. Mr Tsourou subsequently sent a letter to Mr Eskander advising him that he was required to attend an appointment with an independent medical examiner (IME) so that he could obtain a full report on his condition and prognosis for recovery.

[22] On 11 December 2020 Mr Eskander attended an independent medical examination conducted by a Specialist Occupational Physician, Dr Ralph Poppenbeek. Mr Eskander provided written consent for Dr Poppenbeek to conduct the physical examination. Dr Poppenbeek was tasked with assessing whether Mr Eskander was fit to perform his usual duties and examined Mr Eskander in a private office at the work premises.

[23] As part of his assessment Dr Poppenbeek conducted a worksite visit. During the site visit he was escorted by Mr Darko Gagula, Acting General Manager and Mr Kelly Lawford, Shift Manager. Dr Poppenbeek observed the operation of four machines and reported that the work was entirely standing and walking. Dr Poppenbeek observed that the work in operating the machines was quite complex and involved washing the printing apparatus, setting up the machine and washing up after the print run had been completed. He noted there were drums of paper which weighed up to 180-200kg on sets of wheels that have to be pushed into position and connected up to the operating part of the machine. He also noted that the operator would have to kneel and squat to pick up pipes and washing apparatus. Dr Poppenbeek also observed that ink was collected in 10kg buckets and loaded onto a trolley and then pushed from the ink room to the machines, the trolley could weigh about 180kg when fully loaded. He also understood the role involved climbing onto machines to adjust paper breaks. The print cylinders are very heavy and are moved using an overhead crane with a remote-control device, the fine tuning of their position is done by manually pushing them into place. After conducting the site-visit Dr Poppenbeek met with Mr Eskander who underwent a physical examination. During the examination Mr Eskander provided further information about the tasks performed in the role.

[24] Dr Poppenbeek produced an assessment report dated 20 December 2019 6 (First Report). Mr Tsourou was provided with a copy of the First Report on 30 December 2019. In his First Report Dr Poppenbeek states that he had received a detailed letter outlining the physical demands of Mr Eskander’s job position. Dr Poppenbeek gave a composite report comprising the medical evaluation, the worksite visit and an overall assessment. Dr Poppenbeek’s evidence was that from the letter provided by Visy, the site visit and through discussions with Mr Eskander he had obtained a full understanding of the tasks Mr Eskander performed in his role.

[25] Dr Poppenbeek's First Report states that Mr Eskander describes intermittent pain in the lateral right ankle which extends to the lateral foot and that the pain is not severe and mainly occurs in cold weather. Dr Poppenbeek noted at the time of writing his First Report he had not received any documentation or radiology reports from Mr Eskander who had previously undertaken to provide those documents to either Dr Poppenbeek’s office or to Visy. Dr Poppenbeek writes that in the absence of those reports or any information from Mr Eskander’s treating Doctor it was difficult for him to provide a precise diagnosis. Mr Eskander’s evidence was that he had sought to provide the reports to Dr Poppenbeek and requested his treating doctor do so however this never occurred.

[26] In his First Report Dr Poppenbeek states that he was a little surprised that no attempt had been made by Mr Eskander to return to work. During the examination Mr Eskander informed Dr Poppenbeek that he was willing to return to work however he wanted to take it slowly. 7

[27] In his First Report Dr Poppenbeek states that there appeared to be no difficulty with the function of Mr Eskander’s ankle. Taking into account a number of factors, Dr Poppenbeek stated that the risk of further injury for Mr Eskander was fairly low. However, Dr Poppenbeek was concerned that Mr Eskander’s treating Doctor was still writing certificates that did not enable him to return to work and that the length of absence for the injury was of concern medically and required further investigation.

[28] Dr Poppenbeek wrote that he did not have sufficient information available for him to make a precise diagnosis of the injury Mr Eskander had sustained, he had formed the view that if the injury was a simple lateral collateral ligament strain Mr Eskander should not have been incapacitated for a period of more than 6 months. Dr Poppenbeek also wrote that he would feel more comfortable if Mr Eskander would provide information regarding radiological studies at the time of the injury, any specialist opinions obtained and a report from Mr Eskander’s treating Doctor.

[29] Dr Poppenbeek was unable to make a conclusive diagnosis and concluded that given the extent of time Mr Eskander had been off work (2 years) he would not feel comfortable returning him to full duties without a more objective evaluation of his physical function. He recommended Mr Eskander undertake a functional capacity evaluation to be conducted by an occupational rehabilitation provider.

[30] Dr Poppenbeek wrote that if Mr Eskander could provide the information requested and the injury was no more than a simple strain of the lateral collateral ligament, and if the functional capacity evaluation reveals no abnormality, then he would be able to return to unrestricted pre-injury duties with minimal to zero risk of aggravation or deterioration of his ankle condition. Dr Poppenbeek notes on the other hand if it turns out that Mr Eskander has suffered a severe ligament injury to the lateral right ankle, then it would be useful to have at least an up-to-date x-ray to determine if there is any inherent arthritis in the ankle before allowing Mr Eskander to return to work.

[31] After reviewing the report Mr Tsourou agreed that Mr Eskander should attend a functional capacity evaluation (FCE). On 21 February 2020 Mr Tsourou advised Mr Eskander that Visy required him to attend a FCE with Acumen Health.

[32] On 28 February 2020 Dr Staunton from Acumen Health attended the Campbellfield work site and conducted the FCE in the board room. Dr Staunton is a qualified and accredited Exercise Scientist who holds a PHD in Exercise Physiology. Dr Staunton has worked as an Exercise Scientist for approximately 3 years and previously worked as an Onsite Exercise Physiologist with Exercise Movement Professionals where he provided onsite injury prevention programs for workers at Australia Post and Star Track.

[33] Dr Staunton explained his role was to conduct a functional capacity assessment of Mr Eskander’s capabilities. This involved testing Mr Eskander’s overall limitations and capacity so that he could provide guidance as to what he believed in his professional opinion to be the functions Mr Eskander could perform. Dr Staunton explained a functional capacity evaluation could be done in the absence of having a full role description as it was his role to assess a person’s maximum functional capacity and then it was up to Visy to decide what tasks Mr Eskander could perform.

[34] Dr Staunton was contacted by Mr Nick Pappas, Shift Manager Visy and had discussions about the referral. Dr Staunton attended the site with a series of weight plates weighing 2.5, 5,10 and 20 kilograms, a step for an endurance test, a sphygmomanometer (to measure blood pressure, a set of scales (to measure body mass) and a hand grip dynamometer. Dr Staunton obtained a description of the duties Mr Eskander performed from Mr Eskander and he says someone from Visy whose name he could not recall.

[35] During the assessment Dr Staunton recorded the outcome of the assessment tasks performed and commenced writing his report the next day. Dr Staunton’s evidence is that once he had completed the report it was then sent to his supervisor and the quality assurance team at Acumen Health before it was published.

[36] On 23 March 2020, Acumen Health provided Visy with a report detailing its findings from the FCE conducted on 28 February 2020. In summary, Dr Staunton reported that Mr Eskander continued to suffer from minor symptoms and pain related to his ankle injury. He reported that Mr Eskander had not reached his full physical capacity and instead self-limited his capacity for lifting a 10kg mass from the floor to his waist; waist to shoulder height as well as pushing and pulling and carrying. Dr Staunton reports that Mr Eskander had stated he was apprehensive about re-injuring his ankle should he attempt a greater lifting load. Mr Eskander also self-limited his overhead lifting at 5kg again providing the reason that he was feeling apprehensive about re-injuring as the reason for ceasing the test.

[37] Dr Staunton noted that Mr Eskander had reported ongoing mild pain and significantly reduced confidence in his ability to perform his pre-injury duties and in particular a task in his role that required him to push up to 20kg. Dr Staunton’s evidence was that he had obtained from either Mr Eskander and Visy that Mr Eskander was required to lift objects up to 20kg as part of his role and that during the site visit whilst in the work area Mr Pappas demonstrated a lift that was required as part of the role of an object that Dr Staunton says was quite heavy.

[38] Dr Staunton’s evidence was that during the FCE Mr Eskander did not appear to strain himself during any of the tests and when asked if he was comfortable to proceed to the next level of test which would have been an increase in the mass lifted Mr Eskander declined stating words to the effect that he was fearful of re-injuring his ankle so at which point the test being conducted was ceased. Dr Staunton’s evidence is that throughout the evaluation Mr Eskander repeatedly declined to continue with the assessment tasks because he was apprehensive about over exerting his ankle and causing pain.

[39] Mr Eskander could not recall all of the tests he performed during the assessment with Dr Staunton. He denies that he self-limited during the assessments and that he stated to Dr Staunton that he was concerned about re-injuring his ankle. Mr Eskander says he performed all of the tests as requested by Dr Staunton and that Dr Staunton did not request that he perform any tests that required him to lift or move weights beyond 10kg.

[40] Dr Staunton gave evidence that Mr Eskander described a task that he had to perform which involved him pushing and pulling a roller or cylinder which weighed approximately 20 kilograms that goes onto a trolley and is then transported elsewhere. Dr Staunton’s evidence was that Mr Eskander had mentioned the task numerous times throughout the assessment and he was particularly apprehensive about this particular task. This prompted Dr Staunton to again visit the worksite after the assessment and he had Mr Pappas demonstrate the task for him because he wanted to visually see exactly what Mr Eskander was talking about.

[41] Dr Staunton reported that he had formed the belief that with increased confidence and support Mr Eskander would be able to perform his pre-injury duties and hours and recommended a gradual return to work plan. However, Dr Staunton concluded that he had formed the view that Mr Eskander’s apprehension and low confidence in his ankle stability was psychosocial in nature and formed a barrier to his capacity to perform his pre-injury duties. Dr Staunton’s evidence was that after conducting the FCE he contacted his supervisor immediately to discuss what had happened during the evaluation and described it as “an FCE of note”.

[42] On 2 April 2020 Dr Poppenbeek was contacted by Visy and subsequently provided with the FCE report prepared by Dr Staunton. Dr Poppenbeek at the request of Visy prepared a supplementary report with an updated medical opinion regarding Mr Eskander’s ongoing capacity to perform the inherent requirements of his role in light of the findings set out in the FCE Report. Although Dr Poppenbeek’s earlier assessment was made in the absence of any other medical reports, he agreed with most of the recommendations in the FCE Report noting that this was the case. His evidence was that he had subsequently formed a different view based on the additional information he had obtained after writing his initial reports.

[43] Dr Poppenbeek considered his previous assessment of Mr Eskander and the FCE, he formed the view that Mr Eskander was not currently capable of performing his pre-injury duties unrestricted, without further risk of injury or aggravation to his ankle. Dr Poppenbeek stated that Mr Eskander’s reported self-limiting behaviour supported the concerns he held following his own examination of Mr Eskander: that is, there was likely to be an underlying anatomical problem with Mr Eskander’s ankle that could not be detected through physical examination. In the absence of receiving any of the medical documentation he had requested from Mr Eskander some months earlier, Dr Poppenbeek remained concerned about the unusual length of time it was taking for Mr Eskander to recover from his injury.

[44] Despite the FCE Report recommending that it may be possible for Mr Eskander to gradually return to work, Dr Poppenbeek did not feel that this was possible in the circumstances, on the basis that even a gradual return to work would require Mr Eskander to perform the duties associated with his role which he did not consider to be safe. Dr Poppenbeek had observed people performing the work Mr Eskander was required to perform as part of his ordinary duties for a period of 45 minutes. Dr Poppenbeek did not believe there were any duties that could be performed by Mr Eskander that would facilitate a safe return to work.

[45] On 22 April 2020 Visy sent a letter to Mr Eskander attaching the 11 December 2019 Dr Poppenbeek report, Dr Staunton’s report from the FCE conducted on 28 February 2020 and the supplementary report from Dr Poppenbeek of 10 April 2020. In its letter Visy states that the conclusion drawn from the reports is that it appears Mr Eskander did not have the capacity to return to work in his pre-injury role at that time or in the foreseeable future and therefore they were considering the termination of his employment. Mr Eskander was required to attend a meeting to be held on 7 May 2020 to give him an opportunity to respond. Mr Eskander was notified that he could bring a support person to the meeting and any information that he would like Visy to consider before it made its final decision.

[46] On 7 May 2020 Mr Tsourou conducted a show cause meeting, Mr Eskander attended the meeting by phone, his support person also attended the meeting. Mr Eskander provided a written response to the reports which he says had a number of serious flaws in the process that had been followed, and in particular a number of material errors made in the instructions given and assumptions made in the preparation of those reports. Mr Eskander raised concerns about the accuracy of the Dr Staunton’s and Dr Poppenbeek’s reports for the first time in the meeting with Visy on 7 May 2020. During the meeting Mr Eskander alleged that he was fit for work. Mr Eskander was invited to provide Mr Tsourou with any materials he wanted him to consider. Mr Eskander informed Mr Tsourou that he had provided Mr Pappas with his medical reports in January that year. Mr Tsourou was unaware of the documents referred to by Mr Eskander. His evidence was that he spoke to Mr Pappas who was also unaware of the documents. On 11 May 2020 Mr Eskander was sent a letter requesting he provide the documents he referred to during the 7 May 2020 meeting so Visy could send them to Dr Poppenbeek and they could consider those documents before making a final decision.

[47] On 14 May 2020, Dr Poppenbeek received an email from Mr Eskander attaching an undated letter outlining the concerns he had raised in his 7 May 2020 meeting with Visy. The letter to Dr Poppenbeek requested he overturn his recommendations made in his first and supplementary report. The letter made reference to the flaws in both the FCE Report and Dr Poppenbeek’s first and supplementary report. The errors in the FCE Report and Dr Poppenbeek’s reports were that:

(a) The header of the FCE Report had erroneously described the injury as ‘lower back injury, neck pain’;

(b) The FCE Report incorrectly noted Mr Eskander’s date of birth as 04.01.1966 instead of 13.07.1953;

(c) The reference to the date of Mr Eskander’s injury in Dr Poppenbeek’s First Report and First Supplementary Report was erroneously referred to as September 2017, when the injury was sustained in September 2018;

(d) Dr Poppenbeek’s first report incorrectly noted that Mr Eskander was taking anti-inflammatory medication;

[48] The letter also stated that Mr Eskander denied self-limiting during the FCE and asserted he was under the impression that he had completed all the requirements of the testing. The letter also asserts that Dr Poppenbeek’s First Report was based on incorrect information and a lack of medical documentation or imaging. Mr Eskander also provided copies of the 29 July 2019 letter from Dr Curry and a letter from his General Practitioner, Dr Sheriff dated 12 October 2018 which states the nature of Mr Eskander’s injury and the treatment he had received at that time.

[49] The first of the issues raised by Mr Eskander was that the header of the FCE Report erroneously described the injury as ‘lower back injury, neck pain’. The FCE Report also incorrectly noted Mr Eskander’s date of birth. Dr Staunton’s evidence during the hearing was that those were simply administration errors and that he would have recorded Mr Eskander’s date of birth during the assessment and had regarded that, it was subsequently recorded wrong in the report due to a typographical error.

[50] On 18 May 2020 Mr Tsourou spoke with his HR and Workcover representatives and it was decided to obtain a supplementary report from Dr Poppenbeek. On 19 May 2020, Dr Poppenbeek was requested by Visy to review all the medical information that had been provided by Mr Eskander and prepare a further supplementary report. Dr Poppenbeek was specifically asked to report whether the fact that the injury was sustained in September 2018, not 2017, or the fact that Mr Eskander’s date of birth on the FCE was incorrectly recorded and the fact that Mr Eskander was not taking anti-inflammatories would alter his opinion or recommendations.

[51] On 28 May 2020, Acumen Health provided a subsequent report correcting the errors identified to Mr Eskander and Visy. Dr Staunton’s evidence was that an additional sentence was included in the report which was added after his departure. Dr Staunton evidence was that the sentence that states “Mr Eskander did not demonstrate capacity for pre-injury duties” were not words that he added to the report however he did not disagree with the conclusion.

[52] There were two other additions to the FCE report that Dr Staunton had not written in his original report and he had not been party to its inclusion in the amended report. Those inclusions were a note that Mr Eskander had declined to participate in manual handling tasks beyond 10kg and a conclusion that Mr Eskander lacked confidence in his ankle and he was apprehensive about re-injuring. Dr Staunton’s evidence was that although they were not his words and he may have chosen different words, he did not entirely disagree with what was stated. Dr Staunton’s evidence was that the words added to the report appeared to be in line with his original report that he had himself written and the conclusions he had already drawn.

[53] On 22 June 2020, Dr Poppenbeek received further correspondence from Visy providing him with a subsequent report prepared by Acumen Health amending the erroneous reference to ‘lower back and neck injury’ in the FCE Report. Dr Poppenbeek was asked to review his recommendations in light of the Amended FCE Report. The correspondence included that Dr Staunton had since left his employment and that Dr Staunton had spoken with members of his team about the FCE. Dr Staunton gave evidence during proceedings that he had had conversations about Mr Eskander’s file as part of his handover prior to his departure from Acumen Health.

[54] On 26 June 2020, Dr Poppenbeek issued a third supplementary report (Third Supplementary Report). In his Third Supplementary Report Dr Poppenbeek recommended that Mr Eskander may be able to perform light duties for short periods up to one hour at a time followed by a break of sedentary work for a similar duration. However, based on the worksite assessment he had completed on 11 December 2019, he was not aware of any suitable adjustments that could be made to Mr Eskander’s role to accommodate the restrictions he recommended. Dr Poppenbeek concluded that Mr Eskander could not perform his pre-injury duties, unrestricted, without possible risk of aggravation of the residual impairment from his right ankle injury.

[55] Dr Poppenbeek’s evidence was that Mr Eskander had incorrectly informed him of the date of the injury. However, despite the clarification he maintained the view that the length of time Mr Eskander had taken to recover from the type of injury sustained he would not be able to return to his pre-injury duties. Dr Poppenbeek’s evidence was that the inaccurate recording of the date of birth in the FCE Report had no bearing on his opinion or recommendations because he had regard to the referral letter and consent form which accurately recorded Mr Eskander’s date of birth. Dr Poppenbeek stated that Mr Eskander’s age was not a contributing factor in his consideration of whether or not he could perform his pre-injury duties. Similarly, the fact that Mr Eskander had not taken anti-inflammatory medication to treat his ankle injury did not alter Dr Poppenbeek’s opinion in relation to Mr Eskander’s capacity to return to work.

[56] Dr Poppenbeek’s evidence during proceedings was that he had formed the view that a graduated return to work could be attempted with reduced time exposure however if the reduced time exposure still involved Mr Eskander performing his normal duties then the risk of further injury still remained.

[57] On 17 July 2020 Mr Tsourou sent a letter to Mr Eskander informing him that based on the medical information provided Visy was considering terminating his employment on the basis that he could no longer perform the inherent requirements of his job. Mr Eskander was subsequently invited to attend a meeting scheduled for 11:00am on 28 July 2020. Mr Eskander was invited to bring a support person and any information that for Visy to consider before they made their final decision.

[58] Mr Eskander continued to provide medical certificates stating he was able to perform “alternative light duties on a trial basis” and certifying him unfit to return to unrestricted duties due to ongoing right ankle pain until 21 August 2020.

[59] On 28 July 2020 Mr Eskander attended a meeting at which he provided a response to the matters raised in the letter of 17 July 2020. During the meeting Mr Eskander provided a letter outlining some concerns. Mr Tsourou discussed the contents of the new letter with his HR representative and it was agreed that the letter essentially noted the same concerns he had previously raised about the inaccuracies in the reports. Mr Eskander did not provide any new information at that meeting that had not already been considered by Visy and after a brief break was taken to consider his responses Mr Eskander’s employment was terminated at that meeting.

[60] Mr Eskander’s termination of employment was confirmed by letter dated 28 July 2020. Visy informed Mr Eskander that they had formed the view that he was incapable of safely performing the inherent requirements of his pre-injury duties. The termination of his employment took effect close of business that same day.

Alternative or Light duties

[61] Neither Mr Eskander or his medical practitioners attempted to identify or provide any details about what alternative or light duties Mr Eskander was capable of performing. Dr Poppenbeek’s evidence was that he was not requested to identify alternative or light duties and had himself formed the view that the work environment was ridged and not amenable to light or alternative duties. Dr Staunton had recommended a graduated return to work, however he made no recommendation about the type of work in Mr Eskander’s pre-injury role that he could perform.

[62] Mr Tsourou’s evidence was that he had consulted internally and discussed with his leadership team if there were any alternative duties that Mr Eskander could perform. After seeking internal advice, he concluded that there were no alternative or light duties available to Mr Eskander. Mr Tsourou explained that the nature of the machines being 50 metres in length and two and half storeys high meant there was a safety requirement for three people to run them. Mr Tsourou maintained his view that the role of printer was largely manual work which Mr Tsourou’s evidence was that whilst it was possible to have someone carry buckets of ink for Mr Eskander, this did not address the issue that Mr Eskander’s role as a printer required him to do the actual role of a printer which was largely manual work involving walking up and down stairs to protect the ink pumps and to see if the plates are not dirtying up and depending on the unit Mr Eskander would have to squat and roll equipment. Mr Tsourou explained there was an element of danger involved in the role and it was not practical to leave the apprentices or unskilled labour unsupervised to perform tasks they were not qualified to perform. Mr Tsourou’s evidence was that apprentices have lost fingers in the past and it generally takes six months to train an unskilled assistant to understand what it is to be an assistant printer.

[63] Mr Tsourou explained the issue was that Mr Eskander’s role involved dealing with machinery and gears that need to be put into place, marked and aligned to ensure the ink colours can form in line when setting depressions. This involved some physical capability including bending over and jolting the machine. Mr Tsourou’s evidence was that the machines were dangerous in that they had components which included bull gears with seven or eight thousand steel teeth and required precision management of tasks that a qualified printer was trained to perform. Mr Tsourou’s evidence was that the due to the safety risks the assistants would not be able to perform those tasks for Mr Eskander. His evidence was that Mr Eskander wouldn’t be able to perform those tasks either because they involved climbing up to the top of the machine, getting down on his hands and knees whilst applying physical exertion to put the gear into the bull gear in registration, then he would have physically extend himself before moving to station 2 which required him to walk and then he would need to crawl to his next location.

[64] Mr Tsourou also gave evidence that the Enterprise Agreement does not provide for the assistants to take on tasks outside of their role and this also effects Visy’s ability to provide Mr Eskander with modified duties. Mr Tsourou’s evidence was that this provided little to no scope for alternative or light duties.

[65] During cross-examination, it was suggested that Mr Eskander could perform a more sedentary role with Visy. It was also suggested that Mr Eskander could work for intervals of one hours and then rest for one hour. Mr Tsourou’s evidence was that the role did not accommodate for intervals of rest periods. Mr Tsourou’s evidence was that due to the nature of the operations being continuous it was not feasible for Mr Eskander to work for one hour intervals and he could not identify any duties that would accommodate such a regiment. Further it takes two to three hours for a printer to set up a machine and would require Mr Eskander to be able to walk up and down stairs, squat and kneel.

[66] Mr Tsourou’s evidence was that Visy does have return to work plans for employees who can perform their roles, however Mr Eskander was unable to perform his role so it was not possible to implement a return to work plan.

[67] Mr Tsourou’s evidence was that Mr Eskander was required to perform manual labour which included lifting loads of 10-15kg and anything over 20kg was moved by forklift or trolley. Whilst it was suggested that modified duties could involve Mr Eskander dividing the contents into three separate buckets and therefore moving smaller weights, Mr Tsourou’s evidence was that not only was this impractical due to inefficiencies which would affect the KPI’s it would also involve Mr Eskander having to do three times the amount of work. He further pointed out that the ink was mixed in set size batches to obtain the correct colour grading.

[68] It was the case that if Mr Eskander’s role was modified to ensure that he wasn’t exposed to injury through having to carry weights or undertake duties that put him at risk he could have returned to work with modified duties. Whilst Dr Poppenbeek agreed that this was highly likely, based on the information he had obtained from Visy he concluded that the tasks required to be performed in Mr Eskander’s role did not fit this requirement.

Consideration

Harsh, Unjust Unreasonable

[69] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[70] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.⁸ McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”9

[71] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

[72] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 10 The reason for the dismissal should be “sound, defensible and well founded”11 and should not be “capricious, fanciful, spiteful or prejudiced.”12

[73] 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. 13 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).¹⁴

[74] In cases relating to an employee’s inability to fulfil an inherent requirement of the job, “the assessment of whether there was a valid reason for the dismissal involves, amongst other things, determining whether the reason related to a person’s capacity or conduct or both. In this context “capacity”, as used in s.387(a) of the Act, means the employee’s ability to do the work he or she is employed to do. A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.” 15

[75] The parties generally agree that in assessing the validity of a capacity-related reason involves three considerations: whether Mr Eskander was capable of performing the inherent requirements of his role as at the date of his dismissal; whether Mr Eskander would be able to perform the inherent requirements of the role at some time in the future; and whether there was some reasonable adjustment which could be made to Mr Eskander’s role to accommodate his incapacity.

Was Mr Eskander capable of performing the inherent requirements of his role at the time of his dismissal?

[76] Was Mr Eskander capable of performing the inherent requirements of his role at the time of his dismissal. The answer is no.

[77] At the time of his dismissal Mr Eskander’s medical practitioner, Dr Sheriff, had certified Mr Eskander to be unfit to return to his usual occupation and that he was only able to perform alternative duties “if available”. Whilst Visy were considering the future of Mr Eskander’s employment Mr Eskander continued to produce certificates that verified he was unfit to perform his usual duties. To put it plainly, if Mr Eskander had sustained an uncomplicated ankle injury he should have been certified fit to perform his usual duties by his treating practitioner at a much earlier date and he was not. Instead, Mr Eskander had been certified by his own treating practitioner, Dr Sheriff, to be unfit to perform his usual duties for a period of 22 months prior to his dismissal.

[78] Consistent with the certificates provided by Mr Eskander, Dr Poppenbeek had also formed the view that Mr Eskander was unable to perform the inherent requirements of his role. Dr Poppenbeek was concerned about the length of time Mr Eskander had been absent from the workplace. It was for that reason Dr Poppenbeek appropriately held reservations about the nature of the injury Mr Eskander had suffered and sought to obtain further particulars about the injury and his functional capacity. I accept Dr Poppenbeek’s professional opinion that due to the extensive time it has taken for Mr Eskander to recover, it was unlikely that Mr Eskander would regain sufficient functional agility to resume the inherent requirements of his role.

[79] I found Dr Poppenbeek to be a credible witness who was diligent in his approach and in the steps he took to determine Mr Eskander’s capacity to perform his pre-injury role. Dr Poppenbeek conducted a worksite visit and Mr Eskander’s medical assessment. Dr Poppenbeek recommended a FCE in the absence of Mr Eskander providing any medical evidence about the nature of his injury. When Mr Eskander eventually produced the medical evidence that he had in his possession, Dr Poppenbeek appropriately considered that evidence. After reviewing the medical reports, Dr Poppenbeek’s evidence was that the MRI and Dr Curry’s report reinforced his view and he maintained that the length of time it was taking for Mr Eskander to recover was indicative of a more complex injury. I accept Dr Poppenbeek’s findings that the length of time it was taking to recover and the nature of the injury remained an impediment to Mr Eskander returning to his pre-injury full duties because the risk of further strain or injury remained. Dr Poppenbeek maintained his view, which I accept, that Mr Eskander was unable to perform the inherent requirements of his role.

[80] Dr Poppenbeek demonstrated a thorough understanding of the role Mr Eskander performed prior to his 22 months absence from the workplace. Dr Poppenbeek gained his understanding of the role from the referral documentation provided by Visy, he consulted with Visy employees who guided him through the worksite during his site visit, he observed some of the tasks being performed and the machines whilst in operation. Dr Poppenbeek also obtained information from Mr Eskander during the examination he conducted onsite. Dr Poppenbeek’s understanding of the role was not dissimilar from the evidence provided by Mr Tsourou during cross-examination. Mr Tsourou who previously held the position of printer and now a manager gave concise evidence as to the physical demands of the role. Mr Tsourou described the role of a printer as being predominately manual and required Mr Eskander to be on his feet for a least 6 hours per shift. Mr Tsourou’s evidence was consistent with Dr Poppenbeek’s observations. Further, Mr Eskander conceded during cross-examination that he was required to perform many of the physical tasks identified by Dr Poppenbeek in his report and those given in evidence by Mr Tsourou. Given the extent of the information Dr Poppenbeek had obtained and the resources he relied on in gaining an understanding about Mr Eskander’s pre-injury role, the absence of a written position description was of little consequence. It is for those reasons I accept Visy’s submission that engaging with the dictionary definition to ascertain the meaning of a printer adds little value and provides no assistance to the Commission in this matter. I am also satisfied that before producing his final report, Dr Poppenbeek had sufficient information about the role to enable him to adequately assess Mr Eskander’s ability to return to his pre-injury duties.

[81] It is necessary for me to deal with the contentious issue of which there was considerable focus in these proceedings, that issue being ‘whether or not’ Mr Eskander was required to lift weights of up to 20kg as part of his pre-injury role. In his report Dr Staunton suggests Mr Eskander was required to lift and carry weights of up to 20kg, the evidence does not support such a finding. At a maximum Mr Eskander would have been required to lift and carry items weighing up to 15kg. Dr Poppenbeek’s and Mr Tsourou’s evidence was useful with this matter. Whilst it is the case that Mr Eskander was not required to carry buckets of ink that exceed 15kg’s, he was required to push and pull weights that would exceed 20kg and this may involve manoeuvring machinery or trolleys. It was evident that if lifting buckets of ink weighing 10 to 15kg was the only task Mr Eskander had to perform then he could surely perform his pre-injury role, however this was not the case. The evidence supports a finding that Mr Eskander’s role as a printer involved much more than carrying around 15kg buckets of ink. I am not persuaded by Mr Eskander’s submission that his role was not physically demanding, there was no evidence about the tasks he was to perform in his role that would have persuaded me otherwise. Further, he made concessions during cross-examination that were telling of his role as a printer being far more than sedentary role. Those concessions included that he was required to climb up and down stairs which were 2 to 3 storeys high, walk the length of the machines, squat, climb and remain on his feet for long periods of time. Therefore I accept Mr Tsourou’s evidence that the role of a printer is physically demanding.

[82] Mr Eskander also took issue with the FCE and denies having self-limited during the FCE. On this matter I prefer the evidence of Dr Staunton. I accept Dr Staunton’s evidence that Mr Eskander chose not to perform certain tasks during the assessment because he was concerned about potentially aggravating his injury. Dr Staunton noted that the assessment was one that stood out to him because of the unusual circumstances involving Mr Eskander’s self-limiting behaviour. Dr Staunton recalled discussing the assessment with his Supervisor due to those unusual circumstances. Dr Staunton committed to writing his report shortly after the assessment was conducted and was able to recall details of the FCE he conducted, including details that took place after the assessment. Dr Staunton recalled that he had made a request to view particular tasks Mr Eskander had expressed some concern about having to perform during the assessment. It was notable that Mr Eskander was unable to recall the assessment with any precise clarity. He could not recall all of the assessments tasks he had performed on the day.

[83] Mr Eskander also raised concerns about the validity and reliability of the FCE due to the corrections and additions to the content that were made after Dr Staunton had ceased working with Acumen. Dr Staunton’s evidence is that the additions to his report are additions that reflect his findings. I am satisfied the inclusions did not affect the overall conclusions that Mr Eskander had self-limited during the FCE because he was concerned that he would cause himself further injury.

[84] Mr Eskander also submits that because the FCE contained errors, it should not have been relied on by Dr Poppenbeek. He submits because Dr Poppenbeek took the FCE into consideration his findings were unreliable. I am satisfied that the evidence in these proceedings support a finding that the FCE report accurately recorded Mr Eskander self-limited during the assessment. Regardless of the findings made in the FCE Report, Dr Poppenbeek’s recommendation to Visy was still one of concern. One cannot ignore that the medical imaging which was provided to him by Mr Eskander demonstrated significant damage to the ATFL ligament. The letter from Dr Curry stated that if Mr Eskander’s condition did not improve, an ankle arthroscopy and debridement (requiring surgery) may be required. Dr Curry’s expert assessment of Mr Eskander was that the injury may not heal on its own and that further intervention may be required. Dr Poppenbeek’s evidence is that the comments made by Dr Curry in his report highlighted the severity of Mr Eskander’s injury and confirmed his belief that the injury had not fully healed. Dr Poppenbeek’s evidence was that the medical information provided to him in some sense overrode the results in the FCE Report because the documentation made it clear to him that there was residual impairment and there was a substantial ATFL injury. For those reasons, Dr Poppenbeek formed the view that it didn’t really matter how Mr Eskander performed in the FCE, due to the injury sustained, he would not be able to perform the inherent requirements of his role.

[85] Mr Eskander raises the issue that the report from Dr Curry and the initial assessment by Dr Poppenbeek had been done several months prior to his dismissal therefore a further assessment should have been undertaken prior to his dismissal. Having considered that during the period from Dr Poppenbeek’s assessment to the time of his dismissal Mr Eskander continued to provide medical certificates certifying him unfit for normal duties and the findings of Dr Poppenbeek, it was unlikely that Mr Eskander’s condition was going to change from the time of the assessment to the time he was dismissed. Further, at the time of his dismissal the medical certificate provided stated that there wasn’t anything about Mr Eskander’s condition that had changed. Those certificates continued to report that Mr Eskander was unable to perform his usual duties. The evidence therefore supports a finding that at the time of his dismissal Mr Eskander was not fit to perform the inherent requirements of his role.

[86] Mr Eskander had been absent from work since returning from his overseas holiday and had been certified unfit to perform his normal duties in October 2018. Dr Poppenbeek accurately reported the role of a Printer to be a physical role and his assessment of Mr Eskander was that he did not have the capacity to perform the inherent requirements of the role due to his medically diagnosed limitations. Mr Eskander contested both Dr Poppenbeek and Dr Staunton’s without providing any medical evidence to the contrary. Instead, he provided medical certificates from his own treating practitioner that stated he was unable to return to his normal duties. Dr Sheriff and Dr Curry’s medical evidence as relied on by Dr Poppenbeek failed to provide any details as to when, if at all, Mr Eskander would be fit to return to his normal duties. It was therefore reasonable for Visy to conclude that Mr Eskander was unable to perform the inherent requirements of his role at the time he was dismissed.

Were there any reasonable adjustments that could be made to Mr Eskander’s role?

[87] Mr Eskander submits he would have been able to return to his role performing modified duties or reduced hours on a graduated return to work plan and one should have been developed and implemented. Whilst I agree Visy had an obligation to look at opportunities for Mr Eskander to return to work, any return to work plan needed to be developed within the parameters of the limitations identified by Dr Poppenbeek.

[88] Dr Poppenbeek concluded that Mr Eskander could not remain on his feet for a period of more than an hour at a time and he should take an alternating equivalent rest period. He also recommended that Mr Eskander avoid lifting or moving weights of 10kg or more. Considering the physical nature of the role and tasks to be performed those restrictions alone prove to be a barrier for Visy being able to return Mr Eskander to work on a graduated workplan or modified duties and there is no evidence before me to suggest otherwise.

[89] Based on his assessment of the worksite, Dr Poppenbeek formed the view that there did not appear to be any reasonable adjustments that could be made to Mr Eskander’s role that would require less physical work. Dr Poppenbeek’s evidence was that he had considered whether or not adjustments could be made by Mr Eskander being assisted by the other team members and had formed the impression that the workplace was “pretty rigid” and that adaptions of such a nature were not really possible.

[90] Mr Eskander was not forthcoming in identifying any duties he could perform that fell within those restrictions recommended by Dr Poppenbeek. The fact is Mr Eskander failed to provide sufficient evidence as to what sort of adjustments could be made to his role or any alternative duties he could have performed on a return to work plan. He did however suggest that the Trades Assistants could carry buckets of ink for him and it was suggested that they could perform the manual functions of his role that involved heavy lifting. Whilst I accept that the Trades Assistants can carry the ink buckets for Mr Eskander, there is the consequence of an impracticality to the suggestion that they could perform the manual functions that involved heavy lifting and it does not resolve the issue of the other manual tasks that only a qualified Printer is able to perform. The Enterprise Agreement prescribes limitations on the role of a Trades Assistant and requires that they are supervised by a manager or leading hand during the operation of certain machinery and some tasks. I accept and agree with Mr Tsourou’s evidence that the requirement to have a leading hand or manager nearby to step in for when Mr Eskander needs to take a break every hour or so would place an impractical burden on the printing operations.

[91] The evidence supports a finding that Mr Tsourou considered the possibility of alternative duties and a gradual return to work plan. He consulted with Visy’s Ms Bowker, Ms Derks, his shift managers and leading hands and reasonably determined that there were no adjustments that could be made to Mr Eskander’s role that would satisfy the restrictions recommended by Dr Poppenbeek. In the absence of evidence to the contrary, I accept Mr Tsourou’s evidence that there were no adjustments that could reasonably be made to accommodate Mr Eskander’s return to work, a finding supported by Dr Poppenbeek’s observation that the work of a printer was very rigid. It is evident that the physical nature of the role and the tasks performed by a printer would affect the likelihood of Mr Eskander being able to return to work whilst the recommended restrictions were in place. I am satisfied that due to the nature of the restrictions and the requirements of the role, there were no suitable duties available and therefore a return to work plan was not possible.

Was Mr Eskander able to perform the inherent requirements of his role at some future date?

[92] Dr Curry’s report states that Mr Eskander would do no harm to his ankle if he “attempted” to return to work. Dr Sheriff recommended that Mr Eskander could return to work on modified duties. Dr Poppenbeek, with whom I agree, relevantly noted that it is necessary to consider those doctors recommendations in the context that neither doctor had performed a worksite inspection or obtained any particulars from Visy about the tasks Mr Eskander was required to perform as part of his role. Neither of the doctors stated specifically what duties, if any at all Mr Eskander could perform, nor did they provide any information about when Mr Eskander would be capable of returning to his normal duties. Whereas Dr Poppenbeek had conducted his assessments of Mr Eskander on site being fully informed about the tasks associated with the role and the environment in which those tasks were being performed. Dr Poppenbeek had the benefit of basing his assessments on the combined information of the tasks to be performed by Mr Eskander, the physical demands on Mr Eskander in order to keep the machines operating and the environment in which those tasks were to be performed, therefore he had a better understanding of Mr Eskander’s capacity to perform his pre-injury duties.

[93] As stated earlier Mr Eskander had been absent from his role for a period of 22 months at the time of his dismissal. His treating practitioner had certified him unfit to perform his usual duties at the time of his dismissal. Dr Poppenbeek and Mr Tsourou provided evidence, which I accepted, that the inherent requirements of Mr Eskander’s role as a Printer required regular squatting, kneeling and climbing stairs, overall, the role was quite physically demanding. Dr Poppenbeek gave no indication as to when Mr Eskander could return to his pre-injury duties instead he suggested that those activities would have placed repeated stress on Mr Eskander’s ankle and place Mr Eskander at further risk of injury if he returned to work. There is no evidence before me that would lead me to a conclusion that, without further medical intervention as recommended by Dr Curry, Mr Eskander would be fit to return to his pre-injury position at any time in the near future.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[94] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 16, and in explicit17 and plain and clear terms.18 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 19

[95] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 20

[96] Mr Eskander was notified of the reason for his dismissal during the meeting held on 28 July 2020 and in the letter of termination of that same date. Mr Eskander was also provided with an adequate opportunity to respond to the reasons for his dismissal. He was also notified in an earlier letter dated 22 April 2020, in which Visy wrote to Mr Eskander informing him that they were considering terminating his employment, the reasons for their consideration were adequately detailed in that letter. Visy specifically stated that they were concerned after receiving the FCE and IME Report that Mr Eskander was unable to perform the inherent requirements of his role and therefore they were considering terminating Mr Eskander’s employment. Visy at that stage had not made a decision and Mr Eskander was invited to attend a meeting to provide Visy with any information for its consideration.

[97] Mr Eskander attended the meeting and provided a detailed response. Visy considered the information provided by Mr Eskander and directed him to provide the medical evidence he had referred to in his response. After obtaining the medical reports and considering the responses provided by Mr Eskander, Visy took steps to further consult with Dr Poppenbeek and Acumen Health. Visy requested Acumen Health provide an amended report correcting the administrative errors identified by Mr Eskander. Dr Poppenbeek was requested to consider the medical evidence provided by Mr Eskander and the errors identified in the FCE and provide an updated opinion which he did by way of an updated report.

[98] On 17 July 2020, Visy sent another letter to Mr Eskander informing him that after receiving his previous response and medical reports they had obtained an updated opinion from Dr Poppenbeek. Mr Eskander was invited to attend another meeting. The letter of 17 July 2020 makes it abundantly clear that the reason for the meeting is that Visy was considering terminating his employment for reasons that he was unable to perform the inherent requirements of his role. Mr Eskander attended another meeting on 28 July 2020 during which he essentially raised the same issues he had raised in the previous meeting. Visy considered both the response from Mr Eskander and the updated report provided by Dr Poppenbeek prior to informing Mr Eskander of their decision to dismiss him.

[99] I am satisfied that Mr Eskander was provided with a reasonable opportunity to respond to the reasons for his dismissal and I find no fault in Visy’s processes.

Consideration of s.387(d)-(g)

[100] Mr Eskander was not unreasonably refused a support person and his dismissal was not a matter of unsatisfactory performance.

[101] Visy is a large organisation with a dedicated human resources team. I am satisfied that there was no relevant absence of dedicated human resource management expertise that was likely to impact adversely on the procedures followed. In my view these considerations are neutral factors in the analysis of whether the dismissal was unfair.

Other Relevant Matters – s.387(h)

[102]  In considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[103] Mr Eskander submits that whilst redeployment is more typically a matter arising in the context of genuine redundancies, after 23 years of service it was an appropriate option for Visy to consider. Mr Eskander submits Visy was disingenuous in its attempts to ascertain whether there were other roles available for him either as part of a return to work plan or as long-term re-deployment. Mr Eskander submits Mr Tsourou had unfairly discounted possible alternatives without discussion.

[104] Mr Eskander submits he has shown dedication and loyalty to Visy over an extended period of time and should have been treated better. Mr Eskander submit Visy should have and could have tried harder to provide him with alternative employment.

[105] Mr Eskander also submits that the present circumstances and the consequences are particularly harsh. Due to his age and the nature of his termination he is poorly placed to find alternative employment.

[106] Visy does not dispute that Mr Eskander had a long period of service, nor that he may face some adverse consequences as a result of the cessation of his employment. It submits however, the balance weighs against a finding of harshness because the available medical evidence concerning Mr Eskander’s condition and prognosis at the time of his dismissal made plain that he was unfit to perform his pre-injury role. Visy submits its conclusion that it could not reasonably accommodate Mr Eskander’s restrictions was sound.

[107] Visy submit that it was not obligated to redeploy Mr Eskander because he was not being made redundant. They further submit Mr Tsourou was well qualified to determine whether or not any of the available roles were suitable for Mr Eskander in light of his restrictions. Visy submit the fact that it attempted to find alternative employment for Mr Eskander weighs against a finding of harshness.

[108] It is accepted that Mr Eskander was a long serving employee who had been absent for an extended period of 22 months. Visy, although not obligated to, attempted to find alternative employment for Mr Eskander prior to his dismissal. However, his length of service as a printer and his injury sustained whilst on holiday were factors that worked against his suitability for redeployment.

Finding

[109] It is clear that Mr Eskander is aggrieved by the treatment he received from Visy. However, after an extensive period of absence from the workplace Visy had a valid reason to dismiss Mr Eskander for reasons relating to his capacity to perform the inherent requirements of his role. It is an unfortunate circumstance that Mr Eskander was unable to perform the inherent requirements of his role, however having regard to the evidence and submissions and for the reasons set out above I find that the termination of the Mr Eskander’s employment was not harsh, unjust or unreasonable and I therefore dismiss his application. An order 21 to this effect will accompany this decision.

COMMISSIONER

Appearances:

R. Millar of Counsel for the Applicant.
A. Pollock of Counsel for the Respondent.

Hearing details:

2020.
Melbourne (by video link via Microsoft Teams):
November 9 and 10.

Final written submissions:

Applicant: 30 November 2020
Respondent: 14 December 2020
Applicant: 22 December 2020

Printed by authority of the Commonwealth Government Printer

<PR730318>

 1   Exhibit A3

 2   Exhibit R2

 3   Exhibit R3

 4   Exhibits R5 and R6

 5   Transcript PN140

 6   Exhibit R2, RP-2

 7   Transcript PN309

8 (1995) 185 CLR 410

9 Ibid at 465

 10   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 11   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 12   Ibid

 13   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

14 Ibid

 15   Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 (at [42]

 16   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 17   Previsic v Australian Quarantine Inspection Services Print Q3730

 18   Ibid

 19   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73]

 20   RMIT v Asher (2010) 194 IR 1 at 14-15

 21   PR731147