66 The letter went on to note:
"I am sorry that your time with Council has ended in this fashion, however, trust you appreciate the efforts that have been made by Council management to find you alternate roles within its structure, such as the recent Driver/Operator in the Parks section. Unfortunately, this attempt at suitable work led to a further certificate where you are precluded from performing any manual labouring work which makes it difficult for Council to assign new tasks. However, the Rehab Provider has had success in finding alternate work for claimants and I hope this occurs in your situation.
I have instructed pay office to calculate your leave entitlements and make these payable in the next available pay period."
67 Mr Azzopardi was not paid any payment in lieu of notice on termination that may have arisen pursuant to either the Enterprise Agreement covering his employment or the Local Government (State) Award.
68 Arising from the conciliation proceedings before Commissioner Connor, two further medical assessments were made by Dr Rosenthal in February and April.
69 The February report (Exhibit 1 - 8) noted that in regards to his overall fitness for work he required ongoing restrictions and needed to avoid any jobs involving recurrent squatting or kneeling, avoiding lifting over 20 kgs on a repetitive basis as well as jobs which involved pressure on his neck such as wearing strapping around his neck. Jobs involving recurrent flexion, extension and rotation of the neck such as sledgehammering should also be avoided. Dr Rosenthal indicated he did not have a job description for the pre-injury truck driving job but said that if he was required "purely to drive the 15 tonne truck then he believed he was fit and capable of doing this", provided that the job fitted within the restrictions that he had mentioned.
70 Dr Rosenthal had been provided with documentation on a range of positions and indicated that there were some jobs that could be performed (casual cleaner, building cleaner, casual driver, casual mechanical broom operator etc.,) but also indicated the jobs that would fall outside the restrictions mentioned and probably not be suitable. He also indicated that "despite his medical conditions he remains fit for a large range of positions."
71 Dr Rosenthal's April report (Exhibit 1-9) addressed specific tasks of the labouring requirements of the Operator/Truck Driver. Some tasks were identified as being within his capabilities subject to certain provisions (e.g. no kneeling) and in summary he indicated as follows;-
" Thus, there are some aspects of the labouring activities that cause Mr Azzopardi aggravation to his neck and Knee. It is up to Council to determine whether they can provide work which restricts those activities that are likely to aggravate his neck and knee condition."
72 Mr Azzopardi sought reinstatement to his former position, or alternatively re-employment as a Truck Driver or alternatively monetary compensation of 26 weeks pay in lieu thereof.
73 Ms Grewal deposed that within her direct knowledge there were not any positions the duties of which Mr Azzopardi could perform within his medical restrictions and being aware of the Council's responsibilities within the OH & S Act, "was not prepared to place Mr Azzopardi in a position in which his health and safety might, according to his treating doctors' certificates and reports, be compromised."
74 At the time of his termination Mr Azzopardi was in receipt of workers compensation payments and those payments continued at the rate prescribed by the Enterprise Agreement for the following six months at which time his weekly payments dropped to the statutory rate of $641.25.
The Evidence
75 Mr Azzopardi essentially maintained firstly, that he was capable of returning to his pre-injury duties as a Truck Driver and that the alternate injury management placements made by SCC only further exacerbated his condition as the work was heavier or more physically demanding than he had previously undertaken. Secondly, he maintained that when he did carry out those pre-injury duties for the short period of time in March-April 2007 (the one month period) there were no problems and that he should have been left in that position. He was never given any explanation as to why he could not continue in that position, only that they were going to sell the truck and his position wouldn't be required.
76 He maintained that prior to his injury, driving the truck took up 99.9% of his duties. The only labouring work he did was rolling the cover up and undoing the tailgate. The type of labouring duties he did before his injury was not what he would call heavy labouring, it was light labouring. They might get him to put out a couple of barricades or red and white plastic power webbing.
77 He said that when he was driving on construction work he would take material to landfills and bring material back to the gangs. The gangs had two or three labourers. When they were finished they were told not to stand around because ratepayers would ring up the office and say there was a truck that hadn't moved for two or three hours so then he would not work as a labourer but return to the Depot and cart rubbish from Ethel Road to Lucas Heights landfill or Sydney Road to Kurnell landfill. He was a truck driver not a labourer.
78 When Mr Azzopardi provided the medical certificates in May that stated he couldn't use the sledgehammer and the crowbar because it affected his injury, he agreed that at the time he was told he should work at a pace that suited him and didn't need to go at breakneck speed. He said that by then the damage had already been done.
79 Mr Azzopardi was cross-examined about the documents provided to the Workers Compensation Commission in 2008 in support of the claim he was making under the Workers Compensation Act. He ultimately agreed that at that time he said he had a permanent impairment to his knee and neck. That was true at the time but it had now improved. Whilst it was true he had said that he couldn't kneel or fully squat or climb stairs, that had now improved. It had improved slightly in December 2007 compared with October 2007.
80 Mr Azzopardi acknowledged that he had been in receipt of workers compensation payments since his termination - six months at full wages and after that $621.45 per week and that the latter payment was still being made. He said that the reason he did not include that information in his witness statement was because "I wasn't asked." If he had been asked the question he would have said that he was being paid.
81 Mr Azzopardi also disputed that there were four steps to get into the truck, he maintained there were only two. On being shown a photograph of the truck (Exhibit 3) he agreed that built into the moulding of the chassis there was a third step and that it looked like a step. He maintained that he didn't use that step, he would just go "1, 2, straight in, yes". He would use the two handholds near the door to pull himself in.
82 Mr Azzopardi maintained that his work never involved climbing stairs only the steps into the truck and that Dr Marnie misunderstood what he said.
83 Mr Azzopardi also said that there were differences between the jobs involved with the construction crew compared to the maintenance crew. The construction crew was 99.9% driving whereas with the maintenance crew it was 99.9% labouring. He would not be able to do heavy labouring work with the maintenance crew.
84 When he returned to work after his injury he worked at Sydney Road as part of his rehabilitation on light duties. He did not drive a truck then. When he came out of Sydney Road he returned to his pre-injury duties driving the truck with the construction crew. The only two jobs he was offered by Council aggravated his injuries. Those two jobs were maintenance and parks. All he wanted to do was carry out his pre-injury duties and he would have been happy.
85 Mr Azzopardi acknowledged that Council had a responsibility for both his and all employees' occupational health and safety and that the Council has to act on the basis of what the doctors said he could and couldn't do.
86 Mr Azzopardi maintained that what he couldn't understand was that his doctor cleared him to return to his pre-injury duties and if he had stayed on his pre-injury duties he wouldn't be here now, he could carry out those duties. He maintained he never told his doctor he couldn't carry out labouring work but did tell his doctor his pre-injury duties were 99.9% truck driving with a little bit of labouring.
87 He did not consider that Council fulfilled its OH & S obligations when it placed him in the two positions in maintenance and parks.
88 Mr Azzopardi explained that there was some light maintenance duties he could do such as raking the soil, helping form foootpaths up, giving them a hand with forming footpaths. He could measure the width, do a little bit of light screeding of the concrete that type of work but not using a sledgehammer.
89 Ms Grewal's evidence essentially covered the various steps taken by Council to find alternate positions for Mr Azzopardi, the medical reports and certificates and the various restrictions placed on Mr Azzopardi. This has substantially formed the basis of the background and Chronology above.
90 Ms Grewal acknowledged that at the time when Mr Azzopardi had restrictions of driving 4 hours per day on a smaller truck and duties other than driving that he could have undertaken the role of being in a civil maintenance crew. She agreed that four hours continuous driving would not have been required.
91 Ms Grewal was not aware of any job description that might have applied to Mr Azzopardi prior to the Driver/Operator job description he signed in 2003.
92 Ms Grewal was not aware of the practice concerning allocating plant. She knew the expectation was that they had a pool of drivers, a pool of plant and a pool of trucks and depending upon the nature and need of the job, a driver, allocator and a piece of plant will be married together to meet those needs.
93 She also maintained that expectations in relation to the labouring duties in both civil construction and civil maintenance would be the same in that you would be expected to do heavy manual work in both.
94 Ms Grewal was not certain just what refuse Mr Azzopardi would collect from their Depots.
95 Ms Grewal also maintained that Mr Azzopardi did not return to his pre-injury duties.
96 Ms Grewal acknowledged that the maintenance crew position that Mr Azzopardi went to in April 2007 was never assessed for suitability for his injuries. At that time they were being guided by the medical certificates and the knowledge of the work by the staff. She considered that he could perform any of the duties of the maintenance crew one.
97 She was not aware of what work he was involved in 2004, she wasn't involved in the department at the time. It was not her understanding that his pre-injury duties would have been associated with working in construction. However she was not aware of what labouring duties he was doing pre-injury.
98 She considered that because Mr Azzopardi had already been trialled in a number of jobs in the Engineering Operations Group, in addition to the WorkCover Certificates, the view was formed that there was no safe employment about that was available to Mr Azzopardi at that time.
99 There was cross examination of Ms Grewal in relation to the medical reports and certificates. She had questioned whether Dr Patterson understood what Mr Azzopardi's pre-injury duties were and therefore whether he could return to them. She agreed she did not send Dr Patterson a job description however he was invited to a case conference in June with other stakeholders and Mr Azzopardi to clarify the issue. Unfortunately Dr Patterson did not attend. They worked on the assumption that he was Mr Azzopardi's treating doctor and that he too would equally ask Council for this information if he felt it was salient and material.
100 In relation to Dr Malone's report she was not aware whether Dr Malone had been given a job description and did not know where the term appearing in the report of "driver/labourer" came from. It was acknowledged that Mr Azzopardi had always described himself as an "Operator/Driver".
101 On the issue of whether an employee only worked in construction or only in maintenance, she indicated that the current situation was that labour was pooled. When working in an area of road making there were large projects and small projects which may occur in construction or maintenance. The skills were readily transferable and resources were therefore pooled. You could work at the job description (Exhibit 4 - E) in construction or maintenance works.
102 Ms Grewal's evidence essentially gave more specific detail in relation to the Background and Chronology above concerning the medical reports and actions of Council arising from those reports and certificates, including the need for further reports to attempt to clarify the situation.
103 She continued to cause reports to be produced and analysed and assessed these against Mr Azzopardi's medical restrictions when the matter came before Commissioner Connor.
104 When considering the decision to terminate Mr Azzopardi, his lengthy service with Council was taken into consideration. Ms Grewal could not say that there had ever been a time when Council had a position which existed and was suitable to Mr Azzopardi subject to the medical restrictions that appeared to be operating on him and that was still the position.
105 Mr Hamilton's evidence went to his involvement with Mr Azzopardi both prior to his injury and in the period of 2007 in relation to WorkCover certificates he was provided by Mr Azzopardi.
106 He deposed that from his observation of Mr Azzopardi over the years he was someone who would not sit still and watch while others worked around him. He had never heard any reports that Mr Azzopardi wasn't pulling his weight or wasn't helping the gang. He was always helping the gang when Mr Hamilton went there. He gave examples of the sort of work he had personally observed him carrying out. One such example was with a crew building a skateboard and ramp up at Engadine and he saw him helping lay the formwork and helping with the concrete.
107 The Driver/Operators were expected to get out and help the crews if they weren't driving their vehicles.
108 Mr Hamilton had been involved in the preparation of the job descriptions and having all staff sign off on them. That occurred in around 2000/2001. That was basically the first real job description that the men he looked after had. The reason was to have a system where the men knew exactly what their role was, what they had to do and was tied up with the performance system. Mr Hamilton carried out a yearly appraisal on the men and if they got over a certain score in the appraisal they received a bonus. The structure started at a Driver/Labourer level and went all the way to a Senior Operator.
109 He maintained that Mr Azzopardi understood that under this classification system he was a Driver/Operator when he eventually signed it. When the job description was first instigated he would not sign it as he didn't see he had to and it took Mr Hamilton three years to convince him there was nothing untoward in it, that it was exactly what they were doing and it was just formalising what they did. When Mr Hamilton did the evaluations Mr Azzopardi scored over the mark he had to get in order to get a bonus. However he told him he would not get a bonus because he hadn't signed the job description and shortly after that Mr Azzopardi approached him to sign it.
110 Mr Hamilton said he sat down with him and they went through each section and he explained each section and they signed off on it. Mr Azzopardi was very cautious about what he signed which was why it took so long to get him to sign it.
111 Mr Hamilton deposed that any drivers in the Civil Operations Division may be allocated to drive any vehicle or operate any plant for which they were appropriately qualified to drive or operate. They were not only allocated to any specific vehicle or plant and regularly drove or operated more than one vehicle or plant at any given time. However from a practical perspective often drivers were allocated a specific vehicle or plant as it resulted, in his experience, in the employee maintaining the condition of the vehicle or plant, keeping it clean, attending to defects etc. To the best of his knowledge Mr Azzopardi was licensed only to drive trucks.
112 Mr Hamilton indicated that the majority of the time Mr Azzopardi worked on construction sites because that was where the majority of the work was. If he wasn't on a construction site he was carting out of the bin down the bottom yard where they kept the road rubbish (collected from street pick ups) or stockpiles placed there by Parks and Gardens.
113 He confirmed that he had instructed drivers on construction that if there was no work at the site and they weren't needed they were to go back to the Ethel Road Depot and take loads to landfill. He said that Mr Azzopardi was one of those drivers who would show initiative and if on a site with nothing to do and not needed, would go down and start carting out one of those various areas.
114 In relation to the issue of selling the truck raised by Mr Azzopardi, Mr Hamilton said that in his position he was always forward planning with plant and equipment. He had had a discussion with the Manager of Civil Works and his own manager (the Fleet Manager) and they were looking at downsizing the fleet because the work wasn't there, budgets had been cut and gang sizes dropped. So there wasn't the work required for trucks.
115 It was his thinking at the time that if they were going to move Mr Azzopardi to driving the smaller truck because of his injury, his comment was that there was an option to get rid of the truck. He meant that they could sell the truck or pick the worst truck in the fleet (although he said he didn't say all this it was only what he was thinking) and there was no impact on the other staff because Mr Azzopardi was moved to another area to drive another vehicle.
116 The truck that Mr Azzopardi drove stayed in the area. He sat down with the Fleet Manager and they went through the maintenance records of all the trucks and that truck wasn't one of the bad ones because it had been looked after. They sold another vehicle and kept L/49. Not long after that they bought a trailer for the mini excavator and it was hooked up to that truck to carry the mini excavator which it still does today. Another worker would operate the mini excavator.
117 He acknowledged that prior to Mr Azzopardi moving into maintenance he drove that truck L/49.
118 The only difference concerning that truck comparing Mr Azzopardi pre-injury job and the current position was that it now had the excavator on the back. They were always changing work practices. They had to move with the times.
119 Mr Hamilton agreed that the majority of the duties of the position would have been driving the truck. In a perfect world it would have been 100% however if that wasn't required and he couldn't find any effective work for the vehicles somewhere else on another site doing something else the men could do labouring duties and that was why it was put in the job description.
120 Mr Hamilton said that to the best of his recollection in April 2007, Mr Azzopardi drove the truck for a period of approximately 1 to two weeks not four weeks that Mr Azzopardi said, however he said "it could have been wrong". After Mr Azzopardi was moved off the truck another driver was put into that position on that truck the next day.
121 In the period that Mr Azzopardi was actually driving the truck Mr Hamilton was not aware of any problems in relation to Mr Azzopardi's performance.
122 Mr Hamilton also gave information and examples about the work performed by maintenance crews and construction crews. He said that in his opinion, based on his knowledge of the work and Mr Azzopardi's restrictions, that on the big truck he could not have done the labouring duties on maintenance because they did not do light work. He was told when he went there to watch his neck he wasn't expected to overdo it.
123 He did not consider that SSC had any jobs now that involved just driving.
124 At the time of Mr Azzopardi's employment he thought that Council had eight 8 tonne trucks, two or three baby tippers and a couple of five tonne trucks.
125 The Commission made observations to Mr Hamilton about Mr Azzopardi's height and slight build. Mr Hamilton said that generally it would have rarely happened that sledgehammers would be used to get footpaths up. That would be done by mini excavators or backhoes. It might only be where there was a small patch of footpath that a sledgehammer would be used. He said it was "all about match fitness more than size. If you'd been doing a job for years and you know how to do it properly, you know what precautions to take and how to protect yourself."
126 Mr Mathis has been with SCC for 27 years and has observed many Driver/Operators and Driver/Labourers perform their work. The difference between the two classifications was that the position of Driver/Operator allows the person to operate plant in addition to driving vehicles if the appropriate licence or ticket is held.
127 He deposed as to the range of duties to be performed by Driver/Operators including how loads were covered on both the larger and smaller trucks. He indicated that the physical requirements included entry and exit of the cabin of the vehicle. In relation to the 8 tonne truck the driver would need to climb 4 large steps. The first step is about 600mm from the ground and the steps thereafter are about 20mm each.
128 All drivers were required to carry out labouring tasks in addition to their driving duties and those duties constitute part of, or all of, the day, depending on the truck driving requirements of the division. He gave examples of such labouring duties - erection or demolition of traffic control signs, barricades and barrier tape, raking, shovelling, digging with a shovel, or mattock, erection and demotion of concrete formwork, placing, levelling and screeding concrete, laying of turf, cleaning out surface drainage pits and laying stormwater pipes in trenches.
129 He agreed that a person with a restriction of not lifting more than 10 kgs and not being able to do any heavy labouring work that may well affect the capacity to do the job.
130 Mr Mathis deposed that in his view and based on his knowledge of the physical requirements of the jobs in his unit (the Civil Operations Unit) at SSC, it would be impracticable to reinstate Mr Azzopardi to any position within that Unit given his current medical status. Additionally it would be impractical to create or amend an existing position in the Unit so that it encompassed only driving duties. This was because the Unit needed a multi-skilled workforce able to both drive any vehicle or operate any plant and perform labouring duties as required in order to function efficiently, economically as well as operate in an economic and efficient manner. It would not be economic to have employees performing either only driving or labouring duties, as at any given time there may be a need for more of one skill than the other.
131 There was currently no position that required a person to drive a truck all day with no labouring duties. There may be occasions where the person allocated to a position of Driver/Operator or Driver/Labourer was required to drive a truck continuously for one or two days per week however when doing so the driver would need to exit and re-enter the truck on a number of occasions during the course of the day in order to load and unload materials. Depending on the size of that truck this work may be physically demanding.
132 Mr Mathis had made his own inquiries as to whether he could possibly find a spot for Mr Azzopardi and in the end agreed that he had to say to Ms Grewal that they didn't have any driver only or any other positions that would suit a person with those restrictions.
133 Mr Mathis denied telling Mr Azzopardi at any time that the vehicle he had most recently been operating was to be sold and that his position would no longer exist. He explained to Mr Azzopardi that his medical restrictions precluded him from driving large vehicles and that at that time there was no need for a driver of a large truck. In such circumstances such a driver is allocated to another vehicle. He maintained he said words to the following effect:
"Simon, your current medical status means that you cannot drive larger vehicles and in fact it would be (un)safe (sic) for you to do so. As you know, drivers can be allocated to any vehicle".
134 He deposed that the decision not to allocate him to an 8 tonne truck resulted because that the time there was no requirement for the use of such a large truck but there continued to be a requirement for smaller trucks. At all times, Mr Azzopardi as a driver, like every other driver, was expected to drive any vehicle allocated to him and for which he had the appropriate licence or ticket.
135 He deposed that at the time of the meeting referred to by Mr Azzopardi, Civil Operations division was trying to reduce the number of trucks operational within its fleet and was taking steps to allocate existing drivers to other vehicles and plant.
136 Mr Mathis also deposed as to his minor involvement in the Background and Chronology outlined above.
137 He also acknowledged that Mr Azzopardi had generally driven the 8 tonne truck L/49 before his injury.
138 On being shown the photograph of L/49 (Exhibit 3) Mr Mathis agreed there were only three steps but maintained that you would not use only two steps as you could see the scuff marks on the third step leading into the cabin. He acknowledged that the scuff mark could be the mark of someone stepping out of the truck. He considered going from the cabin straight to the first step would a hazardous way of doing it. The safe work method would be to use all the steps.