Darren James Anderson v Northern Co-operative Meat Company Pty Ltd

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Walton J, Vice President Backman J O'Neill C 18 November 2004

Matter No. IRC 5024 of 2004 DARREN JAMES ANDERSON v NORTHERN CO-OPERATIVE MEAT COMPANY PTY LTD (NCMC - Butchering Pty Ltd)

Application by Darren James Anderson for leave to appeal and appeal against a decision of Commissioner Ritchie given on 30 July 2004 in matter no IRC 7443 of 2003.

DECISION OF THE COMMISSION [2004] NSWIRComm 300

1 This is an application for leave to appeal and, if granted, an appeal by Darren James Anderson ("the appellant") against the decision of Ritchie C on 30 July 2004. The proceedings at first instance concerned an application for relief in relation to unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 (NSW) ("the Act"). Ritchie C dismissed the application on the basis that he did not consider that the dismissal was harsh, unreasonable or unjust.

2 The application for leave to appeal was sought in circumstances where the appellant's impairment for work through injury or his exposure to further risk of such injury was invoked by the appellant's employer as a ground for justifying the termination of his employment. This was said to also raise issues as to the operation of the Occupational Health & Safety Act 2000.

3 The respondent employer, Northern Co-operative Meat Company Limited (NCMC Butchering Pty Ltd), opposed the grant of leave contending that the matter was one confined to its specialised set of facts and that the decision of Ritchie C was not attended by any discernible errors.

4 We note that during the course of the appeal proceedings the respondent was consistently referred to by both parties as Northern Co-operative Meat Company Pty Ltd (NCMC Butchering Pty Ltd). On 30 August 2004 solicitors acting for the respondent filed a Notice of Appearance in which it was asserted the respondent was "NCMC - Butchering Pty Ltd" and that it had been earlier incorrectly named as "Northern Co-operative Meat Company Ltd". Following that notification however, both parties continued to refer to the respondent by its earlier longer title. We propose in order to reconcile any uncertainty that may arise to use the title "the respondent".

5 The grounds of appeal, in summary, were that Ritchie C incorrectly applied the statutory test under s84 of the Act and also failed to apply the principles set out by the Full Bench in IGA Distribution Pty Limited v Moses (No. 2) (2002) 114 IR 307. Other grounds of appeal concerned findings which, on the appellant's contention, were made contrary to the evidence and against the weight of the evidence.

6 The appellant, at the date of his dismissal, had been in the employ of the respondent for some 17 years having commenced employment in 1986 as a labourer at the age of 16 years. The respondent conducted an abattoir business which employed between 750 to 850 workers. The appellant had, for some years prior to his dismissal, worked for the respondent as a Grade 5 slicer. The work necessitated, among other things, lifting large pieces of meat sometimes weighing in excess of 50 kilogrammes.

7 In October 1993, shortly after commencing work as a slicer, the appellant slipped while walking down a wooden staircase with a fellow employee. He sustained spinal injuries which required surgery in 1994. Post-operatively, the appellant commenced a graded work-based rehabilitation programme, which he completed, however, upon his return to work he continued to experience back pain. He nevertheless remained working in the position of slicer until sometime in April 2000, when he experienced severe back pain after lifting a piece of "chuck meat" which weighed in excess of 30 kilogrammes. Subsequent medical examinations detected disc protrusions and adjacent mild degenerative changes. As a result of these examinations, the appellant underwent a second back operation towards the end of 2000. Following that operation and a consequent absence from work for some months, the appellant again participated in a graded work-based programme which assisted him to eventually return to normal duties as a slicer.

8 Upon resumption of his duties, the appellant continued to suffer back pain which he managed by medication and weekly remedial massages. On 4 December 2001, an MRI scan revealed the presence of chronic inflammatory tissue in the area which had been earlier operated on. In addition, apparently sometime in 2000 the appellant experienced pain in both shoulders which was later diagnosed as tendonitis.

9 On 13 March 2002, following his second back operation, the appellant was placed on permanently modified duties. These duties entailed working on particular slicing tables where the weights of various meats were less than those handled by other Grade 5 slicers. One such table was the "fillet table" which was regarded as involving work of a less heavy nature than, for example, the "topside table" which involved working with heavier cuts of meat. The appellant was meant to work on the "fillet table" in conformance with his modified duties, but the evidence before Ritchie C was that, in fact, he also worked on the tables where the heavier cuts of meat were handled because slicing duties were constantly rotated. The appellant's supervisors were aware that the appellant continued to work on the heavier tables from the time he was supposed to be on modified duties.

10 On 17 October 2003, the appellant bent down at work to pick up a piece of tenderloin meat and felt a sharp pain in his back. He was off work for eight days. Upon his return to work he had a conversation with the respondent's Occupational Health & Safety Risk Manager, Rick Standing, in Mr Standing's office. A union delegate, Joe Wilson, was present during the conversation. According to the appellant, Mr Standing asked him: "Will you consider going off work and going under the insurance company?". When the appellant emphasised that he wished to continue working, Mr Standing responded: "This decision may not be up to you. We will discuss this next year in 2004.".

11 According to Mr Standing's recall of the conversation, he enquired of the appellant: "Do you think you will be able to continue with your current problems?" Mr Standing also recalls saying: "Darren, you let me know when you are not coping with your modified duties and we will arrange retraining through the workers' compensation insurer and the rehab provider."

12 There next followed a sequence of events, occurring within a short period of time from 27 November 2003 until 12 December 2003, which was the date the appellant's employment was terminated.

13 On 27 November 2003, Mr Standing received a letter from the appellant's solicitors dated 25 November advising the respondent that the appellant was making a claim for lump sum compensation pursuant to ss66 and 67 of the Workers Compensation Act 1987 and annexing medical reports, one from Dr Sheehan dated 4 July 2003 and the second from Dr Boyce dated 15 April 2003.

14 On 2 December 2003, the appellant was approached by his supervisor, Fred Rankin, and Mr Wilson at work and told that Mr Standing wanted to see him. According to the appellant, he was then told by Mr Standing that he was "sacked" and to collect his pay at the end of the following week. The appellant returned to the boning room where he had been working immediately prior to the conversation and collected his belongings. He then went to see his solicitors.

15 According to Mr Standing, upon reading the medical reports attached to the letter dated 25 November 2003, which he received on 27 November 2003, he formed the view that it was no longer safe for the appellant to perform his permanently modified duties. During a meeting on 2 December 2003 with the appellant, and in the presence of Mr Rankin and Mr Wilson, he informed the appellant that re-training, which had been suggested in both medical reports, would be organised by the workers' compensation insurer's rehabilitation provider and that the appellant would be entitled to workers' compensation benefits while undergoing the retraining. He also advised the appellant that it was the respondent's intention to terminate his employment unless he provided further evidence that he was capable of continuing in his current employment without "real danger of further injury". He also advised the appellant at the meeting that the company was forthwith withdrawing its offer of suitable duties pending a further meeting on 12 December 2003 and that in the meantime the appellant should seek medical, legal or union advice.

16 Two days later, on 4 December 2003, Mr Standing received a second letter by facsimile from the appellant's solicitors. The letter requested that the appellant be restored to his "usual duties as a matter of urgency". Mr Standing instructed the respondent's solicitors to respond to the letter. A response was sent by letter dated 10 December 2003. That letter advised: In accordance with our client's obligations under s15(1) OHS Act , our client formed the view that further employment in a labouring/slicing capacity would be detrimental to Darren Anderson's health, safety and welfare in accordance with the opinions stated by Drs Sheehan and Boyce.

17 The letter also advised under a heading "Proposed Termination" that: Relying upon the medical opinion from Drs Sheehan and Boyce and in the absence of any more recent medical opinion, our client proposes to terminate Darren Anderson's employment on 12 December 2003. At that time, your client will be paid four weeks wages in lieu of notice.

18 The letter also advised that no other alternative suitable duties were available to the appellant and arrangements had, therefore, been made by the respondent for the rehabilitation provider to provide re-training.

19 On 12 December 2003, the appellant met with Mr Standing. Mr Rankin and Mr Wilson were also present. According to Mr Standing, he asked the appellant whether he had been able to obtain any evidence concerning his ability to continually perform permanently modified duties without risk of injury, to which the appellant replied: I have seen my solicitor and he says you can't sack me.

20 Mr Standing then told the appellant that, in the absence of any contrary medical evidence, the respondent would be in breach of its duty of care if it allowed him to continue in his current employment.

21 Following this meeting, a letter of the same date was sent to the appellant by the respondent confirming his dismissal. The letter advised the appellant that: Due to your work-related injury, the company has supplied you with suitable duties for the past three years because you were unable to return to your pre-injury duties and now medical opinion is that it is unlikely that you are able to continue in your current capacity.

22 The letter also made reference to the meeting on 2 December 2003 and confirmed: ... you were also advised that the company would terminate your services if there was no additional information brought forward before our meeting of today, the 12th December 2003. To the best of my knowledge, and in my capacity as the manager of the workers compensation system at Northern Co-Operative Meat Company, there is no additional information available that contradicts the medical opinions expressed in the two reports ...

The decision to terminate your services is in accordance with the workers compensation legislation. Also, on the basis that you are unable to return to your pre-injury employment.

23 In his decision, Ritchie C analysed the medical reports that were placed before him in evidence. These reports included the two reports attached to the 25 November 2003 letter, sent by the appellant's solicitor to the respondent. Other medical reports upon which Ritchie C placed reliance included a report of Dr Raymond Wallace dated 25 March 1995, a report by Dr James Bodel dated 9 October 2003, a report by Dr Castagna dated 19 February 2004 and a further report from Dr Sheehan dated 19 February 2004. Ritchie C found that the opinions expressed in the reports advised against the appellant continuing work at his normal slicing duties. He observed that some of the reports suggested re-training and that two of the reports, the report of Dr Castagna and the 2 June 2004 report of Dr Sheehan, expressed the view that he was fit enough to work in a position at the respondent company with weight restrictions. Dr Castagna's report suggested a weight restriction of repetitive lifting of about 12 to 17 kilogrammes and Dr Sheehan's 2 June 2004 report suggested the appellant should not lift in excess of 10 kilogrammes or repetitively or forcefully use his arms overhead.

24 The Commissioner next considered s89 of the Act and made a number of findings after which he concluded that neither reinstatement nor re-employment were appropriate. These findings were: (i) the appellant was 32 years old with a genuine desire to work at any job at which he was capable; (ii) the appellant's evidence was that on occasions he worked as directed by his supervisors in areas that may have been contrary to his medical restrictions; (iii) the respondent's decision to terminate the appellant was based on two doctors' reports one of which was seven months old and the other five months old; (iv) the respondent's concern was to avoid exposing the appellant to injury; (v) although Dr Sheehan stated in his 2 June 2004 report that the appellant was fit to be employed in a suitable role, the lack of detailed evidence before him precluded the identification of an alternative suitable role.

25 Ritchie C then noted that the appellant had also sought in his application monetary compensation of six months' wages and then said: As a consequence of what I have expressed above, I believe the respondent did have appropriate grounds for termination and therefore a valid reason did exist.

26 The Commissioner also made findings accepting Mr Standing's evidence that no alternative suitable jobs were available for the appellant. He also found that the appellant had a long and blemish-free record of employment and that the respondent had told the appellant at the 2 December 2003 meeting to obtain evidence which would convince the respondent that the appellant could continue to safely work. In relation to this last mentioned aspect, Ritchie C commented: The applicant was given ten days to obtain such evidence. Taking into consideration the time of the year and the short period of time to obtain such evidence, one could be critical of the employer. Instead of proceeding to see his workers' compensation solicitor, it would have been more appropriate for the applicant to have made an appointment to see a specialist such as Dr Sheehan. On the other hand, it may well have been appropriate for the respondent to have organised for the applicant to have had a thorough medical prior to any decision being made concerning termination.

In summary, I am of the view that whilst that aspect of the termination could have been better handled, I am not convinced beyond the balance of probability, that the evidence required by the respondent at the time, would have been forthcoming to the extent that the termination for the reasons expressed would not have occurred.

27 We have decided to grant leave in this matter because the issues raised in the appeal are of sufficient importance to warrant the grant of leave.

28 The matter raises significant issues concerning the application of Ch2 Pt6 of the Act where an employee is dismissed solely due to an alleged incapacity for work due to injuries sustained at work and where the employee has previously performed work under a modified work programme to accommodate that incapacity. It also raises questions as to the proper approach to the making of findings under ss84 and 89 of the Act.

29 We are of the view that Ritchie C failed to properly consider the statutory test for determining whether the appellant's dismissal was harsh, unreasonable or unjust under s84 by considering first whether it was impracticable to reinstate the appellant under s89 and then using his findings made in relation to that section as a surrogate test for the findings required under s84. This was an error of law and principle.

30 Ritchie C also failed to have regard to the Full Bench decision in IGA Distribution v Moses which was binding on him. A correct application of the principles in that case required consideration as to whether the appellant employee could be returned to work on permanently modified duties, that is, in the position he occupied immediately before his dismissal. The failure to have regard to and apply the Full Bench decision constitutes an error of principle.

31 We also consider that the failures referred to above ultimately resulted in the wrongful assessment by the Commissioner of the appellant's capacity to work. This further resulted in errors of fact being made which bore upon findings of fairness.

32 Ritchie C also failed to apply the principles relating to procedural unfairness in the context both of the statutory tests and the factual background leading up to termination of employment.

Incorrect Application of Statutory Test Under Section 84

33 In Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453 a Full Bench of the Commission examined the provisions dealing with unfair dismissal in the Industrial Relations Act 1991 and held: In our opinion, having regard to the provisions of Part 8 and in particular ss246 and 250 it is fundamental to the proper exercise of the jurisdiction that the Commission should first make a finding whether or not the employee has been harshly, unreasonably or unjustly dismissed or threatened with dismissal by the employer and set out the reasons for that finding prior to making any order disposing of an application under s246. It is not sufficient in our view for this merely to be left as a matter of inference from the fact that the Commission decides to dismiss the application or alternatively make orders pursuant to s250. In this case the Commissioner made orders under s250, including an order for re-employment without any finding or conclusion that the employees had been harshly, unreasonably or unjustly dismissed and without setting out any reasons for decision in which such a finding and the reasons therefore were implicit. 34 It is apparent from the decision before us that Ritchie C gave consideration to issues of reinstatement and re-employment before turning to consider whether the dismissal was harsh, unreasonable or unjust. This is an inversion of the statutory test which is impermissible. The approach adopted by Ritchie C was one of reasoning from his findings concerning the statutory remedies to a finding pursuant to s84. This was wrong in law and principle and resulted, in our view, in the Commissioner ultimately not truly directing his attention to whether the dismissal was harsh, unjust or unreasonable (other than a mere recitation of such a finding at the end of his decision).

35 The Full Bench, in Entertainment Distributions Company v Burnard (at 452), expressed a view, with which we concur, that it is not necessary for a tribunal to provide a detailed and exhaustive analysis of every matter raised in a proceedings. We would add that the exigencies of a busy tribunal would not necessitate or even allow for an overly pedantic or technical approach to decision making, nor would zealous attention to detail be a reasonable expectation on the part of a court of review. It is, however, of crucial importance that the correct statutory test is applied. Here this was not done, and as a result Ritchie C fell into error. We consider that, had the Commissioner correctly applied himself to an examination of this test, then upon the proper application of the principles laid down in IGA v Moses, a different conclusion must have been reached in this case (for reasons we will develop shortly).

36 We turn now to consider the approach taken at first instance to the statutory remedies under s89 of the Act. Ritchie C proceeded upon the basis that since the appellant's return to work following his second back operation, "... he had never returned to full duties but had worked only on modified duties in accordance with his medical restrictions". The medical evidence is then analysed in some detail. Two reports, the report of Dr Castagna and the later report of Dr Sheehan, were not on the evidence known to the respondent at the time of the appellant's dismissal. Those reports dealt with the appellant's medical history prior to his dismissal. Ritchie C was, therefore, not precluded from placing reliance upon them: Byrne v Australian Airlines (1995) 185 CLR 410 at 467; Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151.

37 On the evidence the respondent placed sole reliance in its decision to dismiss the appellant on the earlier report of Dr Sheehan and the report of Dr Boyce. Neither of these reports addressed, in any detail, the critical question, namely whether the appellant was fit to continue his employment performing modified duties. The failure of the doctors to address this important aspect was not surprising since the reports were clearly obtained on behalf of the appellant for an entirely different purpose, namely, a claim under workers compensation legislation.

38 The later report of Dr Sheehan and Dr Castagna's report each suggested that the appellant was fit to resume his employment with the respondent subject to certain restrictions. Dr Castagna's report expressly stated that the appellant was, "... fit to continue work as a slicer" (subject to weight restrictions).

39 There was no contrary evidence to suggest that the appellant was not fit to continue his employment, performing the modified duties which he had been performing immediately prior to his termination. The injury sustained in October 2003 which resulted in an absence from work for some eight days was not the subject of any medical report before the respondent at the time of the dismissal. In fact Mr Standing was aware of that matter but conducted no further investigation in relation to the circumstances or the impact, if any, it may have had on the appellant's continuing capacity to perform the modified duties. The respondent had a responsibility to initiate its own inquiries in that regard.

40 Section 89(1) of the Act requires consideration of whether or not it would be impracticable to restore a dismissed employee to his or her "former position". The term "former position" has received consideration in IGA Distribution Pty Ltd v Moses (No 2). In that case the appellant's evidence at first instance had been that due to a work-related injury sustained by him, he had been working as a storeworker in a section of his employer's Blacktown warehouse known as the "Repack Centre" on a vocational rehabilitation programme which involved modified duties. An issue in the appeal was whether these modified duties which the appellant had been performing immediately prior to his dismissal constituted for the purposes of s89(1) of the Act, work performed in his "former position". In relation to that the Full Bench said (at 315): Having heard counsel as to the meaning of s89(1) we consider that the construction of that provision should be dealt with at least in a preliminary way. We consider that upon the plain and ordinary language of s89(1) an employee storeworker who carried out the duties of the respondent in the "Repack Centre" for the period he did prior to his dismissal could be said to hold thereby "a former position" (that is, a position with those duties or that work), for the purposes of the provision.

41 We would endorse the construction given by the Full Bench of "former position" and apply it to the circumstances of this case. It follows from what we have said that the modified duties which the appellant was performing immediately prior to his dismissal constituted work being performed by him in his "former position" in accordance with the terms of s89(1) of the Act.

42 We see no impediment in the application of s89(1) to the appellant's circumstances. In saying this we would point to the importance of any continued performance of the permanently modified duties being sustained with such modified duties conforming with medical advice given from time to time.

43 Having made these observations regarding s89(1), it is not necessary for us to deal with Ritchie C's treatment of the other statutory remedies available in s89 of the Act. We would add, however, for completeness, that in relation to s89(2) it was open on the evidence before the Commissioner to find, if he was not inclined to make an order in accordance with s89(1), that there was available a suitable position for the appellant with the respondent, namely the position occupied by the appellant while performing modified duties immediately prior to his termination. This construction of s89(2) is also in conformance with IGA v Moses where the Full Bench preferred the approach given to the meaning of "available" in Commonwealth Steel Company Ltd v Ward (unreported IRC93/3144, 16 December 1994) to the approach taken in Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341. In IGA v Moses (at 315), the Full Bench found that equating the word "available" with "vacant" was unduly restrictive and, in practice, could defeat the purpose of the section.

Errors in the Assessment of Statutory Test: Was Dismissal Harsh, Unjust or Unreasonable

44 The Commissioner made errors (of principle and fact) in the assessment of the question of whether the dismissal was harsh, unjust or unreasonable.

45 According to the respondent's evidence at first instance, the appellant was told by Mr Standing at the 2 December 2003 meeting that if he did not provide further information to the respondent showing he was capable of continuing in his employment without further injury his employment would be terminated. He was given ten days to provide this evidence. This effectively meant that the respondent placed the onus on the appellant to show that he was fit for work and afforded him only a short period of time in which to do so. Further, it was the appellant's evidence that he left the meeting in the belief that he had been "sacked". It was also his evidence that he had little understanding of what was said to him during that meeting because the other people present were talking among themselves and, in addition, there was overtalking. Prior to that meeting, the appellant was given no indication as to its purpose. He thought nothing was going to happen and that Mr Standing was going to advise him that if he had a problem to see him.

46 The decision to terminate the appellant was confirmed in the letter of 10 December 2003 sent by the respondent's solicitors to the appellant's solicitors. The justification given for the termination as outlined in that letter was the respondent's occupational health and safety obligations. In the letter of 12 December 2003 which officially advised the appellant that his employment was terminated, the reason for termination was expressed as being in accordance with workers compensation legislation and because the appellant was unable to return to his "pre-injury employment".

47 In relation to the requirement imposed on the appellant to obtain further evidence, Ritchie C commented: Instead of proceeding to see his workers' compensation solicitor it would have been more appropriate for the applicant to have made an appointment to see a specialist such as Dr Sheehan.

On the other hand it may well have been more appropriate for the respondent to have organised for the applicant to have had a thorough medical prior to any decision being made concerning termination.

48 We are of the view that the Commissioner was in error in stating that the appropriate course that should have been adopted by the appellant was to make an appointment with Dr Sheehan. The respondent was taking steps to terminate the employment of an employee who had worked for it for some 17 years and, as found by Ritchie C, had a blemish-free record. At the time of the 2 December 2003 meeting, the respondent had not obtained any of its own medical reports upon which a proper assessment of the appellant's fitness or otherwise for work could be assessed. Instead, it was in possession, and relied upon, two outdated reports of the appellant's treating doctors, one seven months, the other five months old. Those two reports had been obtained for the purposes of a workers compensation claim and therefore specifically did not address the appellant's capacity to continue employment, while performing modified duties. In addition, the appellant had, in October 2003, suffered another work-related injury. This injury post-dated both reports. In those circumstances, we are of the view that it was incumbent upon the respondent to obtain some independent medical advice before considering the dismissal of the appellant. As a general proposition, if an employer contemplates the dismissal of an employee because of some perceived incapacity on the part of an employee which may prevent the future discharge of his or her duties in a particular position, then the employer must initiate proper inquiries in order to ascertain whether the perception is soundly-based.

49 In forming this view, we do not suggest that there may not be appropriate cases where work-related injuries occasioned by an employee may leave an employer with little choice but to terminate the services of the employee. There are authorities supporting the proposition that in circumstances where an employee is exposed to the risk of injury at work and no other safe alternative is available then the occupational health and safety obligations imposed by law on an employer may prevail. Patterson v Newcrest Mining Ltd (1996) 68 IR 419 was one such authority to which Ritchie C made reference in his decision. A requirement to have regard to occupational health and safety considerations in circumstances where an employer may be contemplating the termination of an employee who has been or will be exposed to risk of injury does not, however, absolve the employer from adopting proper and fair procedures during the process leading up to and at the point of deciding whether or not to terminate employment and to fairly assess whether the employee should be terminated due to his incapacity having regard to the nature of his/her work and alternative duties which may be available.

50 Ritchie C had before him in evidence documentation which contained the respondent's policy current at the time of the appellant's dismissal in relation to injury management and a "return to work" programme (RTW programme). This documentation was not referred to at all in the decision yet it contained clear procedures to be followed where a workplace injury was designated as a significant injury or where an injured employee was unable to return to normal duties because of a permanent partial disability. In relation to the latter eventuality the RTW programme prescribed: Endeavour[s] to redeploy the injured worker in another role subject to the worker's capability and the availability of a suitable position within the NCMC group, and in accordance with the NCMC Claims Management Manual. Such redeployment may require consultation with the injured worker's treating doctor, the Rehabilitation Provider, union representatives and others.

51 The RTW programme also contained a Dispute Resolution Procedure. That procedure in part provided that in the event of a disagreement about "fitness for work" then the disagreement was to be referred to an accredited management consultant for consideration. There was no evidence before Ritchie C of any such referral.

52 In relation to endeavours made to accommodate an injured worker in another role subject to the worker's capabilities and the availability of a suitable position, the only evidence before Ritchie C of such endeavours on the part of the respondent was that given by Mr Standing in the following exchange in cross-examination concerning the reports of Dr Sheehan and Dr Boyce dated 4 July 2003 and 15 April 2003 respectively: Q. So this man had been working from - in your employment, in the meatworks' employment, doing his job satisfactorily between April to 27 November, and you then, on receipt of those reports, form an opinion; is that correct? A. That's right.

Q. You chose not to make any other inquiry yourself as to the fitness of this man to continue with his tasks at the employment place? A. That's correct.

Q. You relied on these two reports that were dated some time earlier? A. ..(Not transcribable)..

Q. Notwithstanding that he'd been doing the work satisfactorily? A. That's correct.

Q. You didn't see fit to enquire in a proper manner of your own medical expert as to whether this man could continue to work? A. No, I didn't.

Q. You didn't do anything other than read these reports and form an opinion. That's correct, isn't it? A. That's correct.

53 During Mr Standing's re-examination a further exchange on the subject took place between Ritchie C and Mr Standing: COMMISSIONER: Q. Mr Standing, when you received the two doctors' reports late November 2003, did you consider what other jobs that the applicant may be able to carry out in a safe manner?

A. We spoke to some of the other supervisors and bearing in mind Darren's injuries, and bearing in mind the reports, and we couldn't come up with anything that would sustain him safely for a period of time.

54 This aspect of the evidence was dealt with by Ritchie C in considering whether he could make an order directing the respondent to re-employ the appellant pursuant to s89(2) of the Act. After referring to Dr Sheehan's 2 June, 2004 report, Ritchie C says: The difficulty I found in trying to identify an alternative suitable role was the lack of detailed evidence by the applicant directing myself to such a position. A position located in the laundry was stated but was dismissed by the respondent as not appropriate as it required the employee to have to work above shoulder height.

Dr Sheehan also stated that the applicant would be suitable for a sedentary role or standing on a line processing meat products. Again I do not believe I have the evidence to direct the respondent to reinstate the applicant into such a position. I was not provided with the necessary detailed information that would convince me that the applicant could work in a safe manner in accordance with the physical restrictions.

55 These observations by Ritchie C reveal a failure to have proper regard to the obligations on an employer to adopt fair procedures when considering the dismissal of an employee. As the evidence before the Commissioner indicated, the respondent made no genuine attempts following receipt on 27 November 2003 of the two doctors' reports to identify suitable alternative employment for the appellant (including his continuation in the permanently modified duties previously undertaken by him). The passage also reveals the incorrect approach taken by Ritchie C in failing to recognise that the onus is on the employer, not the employee, to initiate inquiries into the suitability or otherwise of alternative employment. The Commissioner also failed to specifically have regard to whether the appellant was able to carry out the permanently modified duties.

56 Insufficient weight was also given by Ritchie C to other aspects of the respondent's dismissal. The Commissioner said, in relation to this conduct: Taking into consideration the time of the year and the short period of time to obtain such evidence, one could be critical of the employer.

57 The decision inappropriately excuses the respondent's conduct in allowing the appellant only ten days to obtain evidence which might show he was otherwise fit for work and which might serve to stave off his pending termination date, which was 12 December 2003. This unreasonable deadline imposed on the appellant was made, on the evidence, in circumstances where the inference is available that the decision to terminate had effectively been made as was evidenced by the letter of 10 December 2003 written by the respondent's solicitors on behalf of the respondent.

58 In relation to the age of the two medical reports which the respondent used to base its decision to terminate the appellant, Ritchie C noted that the appellant's employment was terminated, "… notwithstanding that they were some seven and five months old".

59 We are of the view that Ritchie C was distracted from relevant considerations as to whether the process leading up to the dismissal was fair by the respondent's contention that it was concerned that the appellant was not and would not be exposed in some abstract way to a risk of injury if he continued in its employ. There was a quite specific question that needed to be addressed by the respondent and which was never appropriately asked or answered.

60 A further aspect which was given insufficient weight by Ritchie C was the evidence in relation to the appellant's performance while on modified duties. In relation to this aspect of the case, Ritchie C said: In evidence, the applicant stated that he worked on occasions as directed by supervisors/foremen in areas that may have been contrary to his medical restrictions.

61 On the evidence, the appellant was placed on modified duties following his second back operation on 13 March 2002. The appellant's evidence was that he was supposed to work on the "fillet table" which entailed lifting less heavy pieces of meat, but because the slicing work was rotated among the workers, the appellant was directed by his supervisor to perform slicing duties at those tables where the heavier pieces of meat were sliced. There was also evidence contained in the affidavit of Mr Rankin, one of the respondent's witnesses, which tended to confirm the appellant's evidence on the point, and revealed that the respondent was aware at the relevant time that the regime, which was intended to allow the appellant to perform modified duties, was not being adhered to.

62 In summary, we have identified a number of errors in the decision which directly bear upon the issue of whether the dismissal was harsh, unjust or unreasonable. The errors include the failure to have proper regard to an employer's obligations to adopt fair procedures when contemplating the dismissal of an employee; the incorrect casting of an onus on the employee to initiate enquiries as to the suitability of alternative employment; the distraction from relevant considerations concerning the fairness or otherwise of the process of dismissal; and, the giving of insufficient weight to the evidence in relation to the appellant's performance while on modified duties (and the availability of alternative duties). This last matter went directly to whether there was any basis in fact for the dismissal; the evidence failing to demonstrate that the appellant was not fit to perform the permanently modified duties. We do not consider that Ritchie C properly evaluated the medical evidence which disclosed that the appellant was fit for the performance of permanently modified duties (of the character he had previously performed).

63 In any event, we consider the breaches of procedural fairness by the respondent employer which we have identified are sufficiently serious of themselves to require a finding that the dismissal was harsh, unjust or unreasonable.

64 In determining whether a decision to dismiss an employee was harsh, unreasonable or unjust, the Commission will assess the procedures followed by an employer to see whether the procedures that were followed were unfair. A detailed exposition of the application of the relevant principles is contained in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. In that case, the Commission held that the adoption of, or application of, an unfair procedure may itself result in a dismissal being harsh, unreasonable or unjust (at 387-391).

65 Section 88 of the Act contains provisions which import some of the requirements for procedural fairness where an employee has been dismissed from employment. Identical provisions under s249 of the Industrial Relations Act 1991 (NSW) were analysed by Hill J in Mason v Electricity Commission of NSW (1995) 62 IR 436 at 441 to 442. Hill J's conclusions were referred to with approval by the full bench in Antonakopoulos at 389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

66 Here, the approach adopted by the respondent in bringing about the dismissal of the employee was grossly unfair, contrary to its own policy and had a direct bearing on whether there was a reasonable assessment of the prospect of the appellant remaining in employment.

67 We are of the view after careful consideration of the evidence that the errors made by the Commissioner, as discussed by us, are sufficient to uphold the appeal. We also consider that we should determine for ourselves what the appropriate orders should be. In adopting this approach, we note, but do not accept, the respondent's submission that, in the event the appeal is upheld, the matter be referred to a member of the Commission for the determination of a remedy. In Price v Box Valley Pty Limited (1999) 90 IR 480 at 485, a Full Bench of this Commission held that the same approach advocated in this appeal by the respondent would not usually be an appropriate method of dealing with successful appeals in unfair dismissal proceedings. We consider that there is a proper basis on the evidence contained in the record at first instance for us to resolve this matter.

68 The evidence before the Commission showed that the appellant's dismissal was harsh, unreasonable and unjust. The respondent placed sole reliance on outdated reports which were provided by the appellant for reasons unrelated to considerations of dismissal. No independent inquiries were undertaken by the respondent to ascertain whether the appellant could continue to work in some suitable alternative role or on modified duties. Nor was the appellant accorded procedural fairness by the respondent in the process leading up to and including his dismissal. The medical evidence did not preclude the appellant from continuing his permanently modified duties if the respondent adhered to that regime for work.

69 We consider that the appropriate remedy here is reinstatement of the appellant to his former position with the employer, upon the previously imposed conditions that his work be restricted to the permanently modified duties. The appellant's reinstatement to his former position is not, on the evidence before us, impracticable, since there has been no suggestion contained in that evidence that the appellant cannot be engaged in the continued performance of permanently modified duties or that his continuing employment on that basis could be other than a satisfactory arrangement for both parties. In the absence of changed medical circumstances, there is no impediment on the presently available medical evidence as to the appellant's physical capacity to continuing to work for the respondent on the permanently modified duties (free of further risk of injury arising from the performance of work within those confines). The appellant's further work may be adjusted in the light of any bona fide medical assessments.

70 The orders of the Commission will be as follows: 1. Leave to appeal is granted.

3. The decision of Ritchie C in matter IRC 7443 of 2003 is quashed. 4. The respondent shall reinstate Darren James Anderson to his former position on the condition that his work be confined to the permanently modified duties previously carried out by him. 5. The respondent shall pay Darren James Anderson the remuneration he would, but for being dismissed, have received from the date of the termination of his employment to the date of his re-instatement, less any amounts paid as workers compensation payments. 6. The period of employment of Darren James Anderson with the respondent is taken not to have been broken by the dismissal.

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