Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal - incapacity to perform inherent requirements of position - incapacity not properly established and no consultation regarding alternative range of duties or positions - no valid reason for dismissal - applicant not provided proper opportunity to respond - absence of evidence from decision maker - dismissal harsh, unjust and unreasonable - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 16 May 2019. The application was made by George Naoum (the applicant) and the respondent employer is ISS Security Pty Ltd ABN: 14 001 375 186 (the employer).

[2] The application indicated that the date of effect of the applicant's dismissal was 9 May 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The file indicates that conciliation of the matter occurred on 27 June 2019. However, the matter was not resolved, and it was listed for Pre-Hearing Conference on 9 July 2019.

[4] At the Pre-Hearing Conference the applicant indicated his preparedness to accept a previously offered, undisclosed, monetary settlement. The representative of the employer who appeared at the Pre-Hearing Conference did not have instructions or capacity to respond in respect to any settlement of the matter. The Commission requested that, as soon as practical after the Pre-Hearing Conference had concluded, the employer provide the applicant with a formal response clarifying its position regarding any settlement.

[5] Notwithstanding the apparent potential for settlement of the claim that was identified at the Pre-Hearing Conference, the Commission issued Directions for the Parties to file and serve evidence and other material in preparation for the scheduled Hearing that was fixed for 3 September 2019.

[6] Subsequently, the Hearing of the arbitration of the application was held in Sydney on 3 September 2019. At the Hearing, the applicant represented himself. The applicant was the only witness who was called to provide evidence in support of the unfair dismissal claim. The employer was represented by its General Counsel, Mr J Moore_,_ who called Ms J Cox, the employer's National People & Culture Manager, as the only witness who gave evidence on behalf of the employer.

[7] The applicant had worked for the employer for a period of approximately 23 years. The applicant worked as a Security Officer specifically described as an Aviation Protection Officer (APO). The applicant was engaged in work as an APO in a warehouse operation conducted by the FedEx company located in the Sydney suburb of Alexandria.

[8] In November 2015, the applicant claimed that he injured his right knee whilst operating a parcel x-ray machine at work. The injury to the applicant's knee necessitated his absence from work. The applicant subsequently made a claim for workers compensation in respect to his knee injury, and the employer disputed liability on the basis that it asserted that the injury to the applicant's knee was not work-related but due to a degenerative condition.

[9] In March 2017, the applicant underwent surgery on his injured right knee, and following the surgical procedure the applicant's medical practitioner provided him with a certificate of capacity for light duties. The employer rejected any provision for light duties and the applicant remained absent from work as his disputed workers compensation claim was progressed. During the extended period of absence from work, in November 2017, the applicant injured his back whilst he was at home.

1. In July 2018, the applicant accepted a negotiated settlement of his contested workers compensation claim. The settlement was reflected in Consent Orders that were made by the NSW Workers Compensation Commission on 18 July 2018, and which included a monetary payment that was made to the applicant. The workers compensation settlement did not include any termination of the applicant's employment. The applicant provided the employer with a medical certificate dated 16 July 2018, which advised that his treating medical practitioner considered that he was fit to work as "a security in ISS Security service."[1]

[11] On or about 15 August 2018, the employer's National People Manager, Ms Justine Cox, advised the applicant that due to the length of his absence from the workplace he was required to attend a fitness for duty assessment with an independent medical examiner. On the following day, 16 August 2018, the applicant participated in a medical fitness for duty examination conducted by a consultant occupational physician, Dr P L Harvey-Sutton.

[12] Dr Harvey-Sutton provided an Interim Occupational Medical Assessment dated 4 September 2018. The Interim Occupational Medical Assessment indicated that Dr Harvey-Sutton was unable to confirm the applicant's fitness to return to work in the absence of further clinical notes and medical records that the applicant had refused to sign an authority to release to Dr Harvey-Sutton. In particular, the clinical notes and medical records relating to the applicant's spinal injury were considered necessary before Dr Harvey-Sutton could provide any conclusive occupational medical assessment.

[13] During the last quarter of 2018, lawyers acting on behalf of the applicant corresponded with the employer firstly seeking to have the applicant declared to be voluntarily redundant, and then subsequently requesting that the applicant be re-engaged and provided with work in accordance with the medical certificate of his treating medical practitioner dated 16 July 2018. The employer resisted the demands made by the applicant's lawyers and asserted that the applicant was obliged to comply with the direction to release the relevant medical information as sought by Dr Harvey-Sutton.

[14] In February 2019, the applicant's lawyers made an application under s. 372 of the Act asserting a dispute in respect of an alleged breach(s) of a General Protection (the General Protections application). The General Protections application was the subject of a conference conducted by Bull DP on 18 March 2019. The conference resulted in the applicant agreeing to authorise the release of the medical information as sought by Dr Harvey-Sutton.

[15] Following the release of the clinical notes and medical records, Dr Harvey-Sutton provided a Final Occupational Medical Assessment dated 18 April 2019. On or about 1 May 2019, the applicant was provided with a copy of the Final Occupational Medical Assessment. In summary, the Final Occupational Medical Assessment confirmed that Dr Harvey-Sutton did not consider that the applicant was fit to perform the inherent requirements of his position as an APO.

[16] On 9 May 2019, the employer provided the applicant with written advice that he was required to attend a meeting on the following day, 10 May 2019, for the purposes of discussion regarding his long-term absence from the workplace. The advice of this meeting referred to the Final Occupational Medical Assessment and asserted that the applicant was no longer capable of performing the inherent requirements of his role, and that he would remain incapacitated for a further period of time. The applicant was advised that in the circumstances his employment may be terminated, and he was invited to bring a support person to the meeting scheduled for the following day.

[17] On 10 May 2019, the applicant attended the scheduled meeting with the employer's representatives being, the Regional People Manager, Mr Ghassan Ayoub, and the Integrated Facility Services Manager, Mr Robert Nedelkovski. The applicant did not bring a support person to the meeting. Mr Ayoub conducted the meeting on 10 May, and he referred to the Final Occupational Medical Assessment provided by Dr Harvey-Sutton and which confirmed that the applicant was unfit to perform the role of an APO. The applicant rejected that he was unfit for duty, and he asserted that he was fit to return to work. Mr Ayoub rejected this proposition, and he advised the applicant that his employment was terminated as he had been deemed unfit to perform the inherent requirements of his role as an APO.

[18] Subsequently the applicant was provided with written confirmation of the termination of his employment in a letter that was incorrectly dated "10 Mary 2019". The termination of employment letter also incorrectly referred to the applicant having performed pre-injury duties at "Perth Airport" and further, it asserted that the applicant had agreed that he was not currently fit to return to pre-injury duties and not likely to become fit in the near future. The applicant was paid any accrued entitlements.

[19] Since his dismissal, the applicant has unsuccessfully sought alternative employment to replace the APO role that he had with the employer. However, the applicant has had some limited expansion of work with other secondary employers.

[20] The applicant represented himself at the Hearing. The applicant provided oral submissions and he had also filed two outline of submissions documents.

[21] The submissions made by the applicant stressed that he had been a very loyal, long serving employee, and he believed that the termination of his employment had degraded his character and loyalty to the employer. The applicant submitted that when he initially injured his knee at work in 2015, he attempted to continue to work, but the employer had directed him to go home.

[22] The applicant said that he had been cleared to return to work on light duties following the surgery on his knee. However, the employer had refused to provide him with light duties, and it had contested his claim for workers compensation. The applicant also asserted that when he had settled his workers compensation claim in July 2018, the employer did not stick to the agreement which involved him being returned to employment.

[23] The applicant stated that he had been unfairly terminated from employment after a long and slow process involving his workers compensation claim and his contested fitness to return to work.

[24] Mr Moore, who appeared for the employer at the Hearing, made verbal submissions in amplification of a written outline of submissions that had been filed on behalf of the employer. Relevantly, the employer's written submissions referred to the criteria contained in s. 387 of the Act.

[25] The employer submitted that there was a valid reason for the dismissal of the applicant. The valid reason relied upon by the employer was that the applicant was deemed unfit to perform the work that he was employed to do. According to the submissions made by the employer, the applicant's incapacity to perform the requirements of his position was confirmed by the report of an independent medical examiner.

[26] Mr Moore submitted that the applicant's circumstances unfolded over an unfortunately long, extended period which regrettably included a lengthy period where the applicant refused to provide authority for release of medical records that needed to be considered in full by the independent medical examiner. Eventually, the independent medical opinion established that the applicant was unfit to perform the requirements of his role and as this opinion had not been countered by any alternative medical evidence, and despite the applicant maintaining his fitness to return to duty, the employer had valid reason for dismissal based upon the medical evidence in the form of the opinion of Dr Harvey-Sutton.

[27] The employer further submitted that the applicant was clearly notified of the reasons for termination during the meeting held on 10 May 2019, and that this notification of the reasons for termination occurred prior to the dismissal. Subsequently the notified reasons for termination were provided in written form. Further, it was submitted that the applicant had an opportunity to respond to the reasons for termination during the meeting held on 10 May 2019. The employer submitted that the applicant provided no alternative medical evidence or indication that there was any basis to dispute the reasons for termination.

[28] The submissions made by the employer noted that the applicant was invited to bring a support person to the meeting held on 10 May 2019, and he simply declined to do so. The employer also acknowledged that it was a large employer with dedicated human resource specialists and that its size and the existence of the specialists would be unlikely to negatively impact on the procedures that were followed in respect to the dismissal of the applicant.

[29] The employer also submitted that there was no alternative security work that could have been made available for the applicant. Consequently, in all the circumstances, Mr Moore submitted that the dismissal of the applicant was not harsh, unjust or unreasonable.

[30] Mr Moore made further alternative submissions in the event that the applicant's claim was successful. In this regard, Mr Moore submitted that any Order of reinstatement would be inappropriate, and that in respect of any compensation, the applicant's 2 ½ year absence from work meant that no amount of compensation should be Ordered if the applicant was found to have been unfairly dismissed. In addition, Mr Moore submitted that if any amount of compensation was contemplated, the applicant's evidence involving him declining offers of other work established further basis for there to be no Order of compensation made.

[31] The applicant was a person protected from unfair dismissal and, his claim for unfair dismissal remedy was jurisdictionally established. Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements can be identified in s. 385 which is in the following terms:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

[32] In this instance there was no dispute that; the applicant had been dismissed; the employer was not a small business; and that the dismissal was not a case of genuine redundancy. Consequently, the determination of the unfair dismissal claim has been confined to consideration of that element contained in paragraph (b) of s. 385 of the Act, namely, whether the dismissal was harsh, unjust or unreasonable.

[33] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[34] The circumstances of the termination of the applicant's employment involved broadly uncontested evidence. Despite the largely uncontested evidence surrounding the protracted circumstances that culminated in the dismissal of the applicant, one significant factual dispute has emerged.

[35] The evidence has established that the applicant was dismissed from his employment during a meeting held on 10 May 2019. During this meeting, the findings of the Final Occupational Medical Assessment of Dr Harvey-Sutton dated 18 April 2019, were referred to by the employer's Regional People Manager, Mr Ayoub. The termination of employment letter, signed by Mr Ayoub, asserted that the applicant agreed with the medical assessment that he was not fit to return to pre-injury duties. The applicant steadfastly rejected the proposition that he had agreed that he was unfit to return to employment as an APO.

[36] Importantly, the employer did not provide any evidence from Mr Ayoub. Consequently, to the extent that the dismissal of the applicant relied upon the purported agreement of the applicant as to his medical condition there is simply no evidence, other than the termination of employment letter, to support a factual basis to establish any such agreement.

[37] The purported agreement of the applicant as to his unfitness for return to work, as was stated by Mr Ayoub in the termination of employment letter, introduced the prospect that the applicant did not contest the medical opinion provided by Dr Harvey-Sutton. The absence of such contest would dispense with the need to provide the applicant with an opportunity to provide further medical opinion in challenge to the medical opinion provided by Dr Harvey-Sutton.

[38] However, the evidence has established that the applicant did contest the medical opinion and he was supported in his belief by the medical certificate of 16 July 2018 from his treating medical practitioner. Consequently, the false presentation provided by Mr Ayoub that the applicant agreed with the medical opinion of Dr Harvey-Sutton has meant that the incapacity of the applicant was not properly established but instead, created at least in part, upon the falsehood of the purported agreement of the applicant. In order for the employer to have properly established the incapacity of the applicant it should have acknowledged the contest raised by the applicant and provided an opportunity for the applicant to produce further medical opinion or other evidence in challenge to the opinion provided by Dr Harvey-Sutton.

[39] Consequently, the incapacity of the applicant, as was established by the employer, was based, in part, upon the falsehood involving the applicant's purported agreement with that incapacity. The partly erroneous foundation upon which the employer established the incapacity of the applicant has meant that the reason for the dismissal of the applicant was not properly established. As a result, the reason for dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant that related to his capacity or conduct.

S. 387 (b) - Notification of Reason for Dismissal

[40] The employer provided written notification of dismissal in the form of the termination of employment letter erroneously dated "10 Mary 2019". The termination of employment letter unfortunately contained several significant errors. For example, the letter was addressed to the applicant at the Melbourne airport, and it asserted that he worked at the Perth airport, when the applicant had never performed work at any airport but at a warehouse in Alexandria. The carelessness with which the termination of employment letter was constructed was reflective of the employer's general failure to properly establish sound and defensible basis for the dismissal of an employee with 23 years' service.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[41] The employer did not provide a proper opportunity for the applicant to respond to the findings made by Dr Harvey-Sutton in her Final Occupational Medical Assessment of 18 April 2019. The meeting on 10 May 2019, which was conducted by Mr Ayoub, did not represent an opportunity for the applicant to respond to the medical opinion regarding his incapacity for work. Instead, the meeting of 10 May represented little more than a forum for the perfunctory implementation of the predetermined decision to dismiss the applicant utilising the creation of a fallacious representation of the applicant's agreement as to his incapacity.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[42] The applicant was invited to have a support person present during the meeting of 10 May 2019 when he was advised of his dismissal. Consequently, the employer did not unreasonably refuse to allow the applicant to have a support person present to assist during any discussions relating to his dismissal.

S. 387 (e) - Warning about Unsatisfactory Performance

[43] The applicant was not dismissed for unsatisfactory performance and therefore this factor is not relevant in this case.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[44] The employer is a large enterprise, which employs more than 2,300 persons, and its size would be unlikely to negatively impact on the procedures followed in respect to the dismissal of the applicant.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[45] The employer, as a large employer, has dedicated human resource specialists and other employment related expertise. Consequently, no potentially negative impacts from the absence of such specialists and expertise could be identified. Indeed, the existence of employment specialists and relevant expertise should have meant that the employer adopted a significantly higher standard of practice and procedure when dealing with the termination of the applicant's employment.

[46] The employer made no attempt to properly investigate alternative employment options for the applicant even if his particular level of incapacity was correctly established. If the applicant's medical incapacity had been properly established and confirmed to align with that presented in the Final Occupational Medical Assessment provided by Dr Harvey-Sutton, there was nevertheless no genuine contemplation by the employer of alternative employment options or modified duties that might be reasonably available. The proper exploration of alternative arrangements including altered duties or alternative positions that may have accommodated the incapacity of the applicant, was a prerequisite to any fair and reasonable determination that the applicant, as an employee of some 23 years, was unable to fulfil the inherent requirements to continue in employment.

[47] The absence of any reasonable attempts by the employer to find suitable alternative employment or modified duties that might have been reasonably accommodated by the applicant was revealed during the Hearing when the applicant cross-examined Ms Cox and the following evidence was provided:

"You've got three guards on Monday to Friday. We only did X-rays in the morning and late afternoon so there's four periods that - where I could have worked checking IDs or walking around the warehouse opening gates and that. So there is work available? --- Okay. I'm not aware of those hours or work being available performing those hours."[2]

[48] In addition, there was no evidence that the employer engaged the applicant in any discussion about alternative employment opportunities outside of the security function or in any other locations. Rather than properly pursue options that may have permitted the employment to continue, the employer attempted to fallaciously rely upon the applicant's alleged concurrence with a level of incapacity that purportedly precluded any further employment.

[49] In this instance the applicant was a long-standing employee who had suffered particular physical injuries that clearly gave rise to a level of incapacity to perform the full range of duties associated with his position as an APO. Regrettably, the applicant was absent from the workplace for an extended period, and the latter part of his absence was caused by his regrettable refusal to consent to the release of all relevant medical evidence.

[50] However, once the Final Occupational Medical Assessment had been provided, the employer hastily and erroneously translated that medical assessment into an established incapacity for any further employment. Regrettably, the employer falsely represented the applicant's agreement as to his level of incapacity, and it proceeded upon this erroneous foundation as basis for dismissal.

[51] The evidence has established that the reason for the dismissal of the applicant, which was in part established upon a blatant falsehood, was not a sound, defensible or well-founded reason for dismissal of the applicant. The purported incapacity of the applicant for any further employment had not been properly established. The applicant was not provided with a proper opportunity to challenge the Final Occupational Medical Assessment. In addition, the employer did not properly contemplate the prospect for continuation of the employment by way of a range of alternative duties or other positions in different areas of its significant operations.

[52] Consequently, the dismissal of the applicant was not for valid reason related to his capacity or conduct. In addition, the employer adopted a severely flawed procedure which hastily avoided any opportunity for the applicant to properly respond to the asserted level of incapacity which was alleged to prevent any further employment. Therefore, the dismissal of the applicant included both substantive and procedural deficiencies which, when considered and balanced against all the criteria established by s. 387 of the Act, result in a finding that the dismissal of the applicant was harsh, unjust and unreasonable.

[53] The applicant has sought reinstatement or alternatively compensation as remedy for his unfair dismissal. In circumstances where any properly established level of incapacity of the applicant and the prospect for any employment that may accommodate that incapacity is very difficult to predict, I am satisfied that reinstatement of the applicant would be inappropriate. Therefore, payment of monetary compensation would represent an appropriate remedy for the applicant's unfair dismissal.

1. Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified from the Full Bench Decisions of, inter alia; Sprigg v Paul's Licensed Festival Supermarket[3] (Sprigg); Smith and Ors v Moore Paragon Australia Ltd [4] and more recently, the cases of; McCulloch v Calvary Health Care Adelaide[5]; Balaclava Pastoral Co Pty Ltd v Nurcombe;[6] and Hanson Construction Materials v Pericich[7] (Pericich).

[55] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of reinstatement of the applicant.

[56] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[57] There was no specific evidence provided which established that an Order of compensation would impact on the viability of the employer's enterprise.

[58] The applicant had been employed for a period of 23 years. However, the applicant had been absent from the workplace for the last 2 ½ years of his employment. The applicant would have been likely to have received remuneration of approximately $1,007.76 gross per week if he had not been unfairly dismissed.

[59] Notwithstanding the long service of the applicant, I have determined that the employment of the applicant would have continued for at least an 8-week period after his unfair dismissal. During this eight-week period the applicant should have been provided with his ordinary remuneration and possibly an alternative range of suitable duties. Further, this eight-week period would have provided the applicant with an opportunity to produce medical evidence or other challenge to the Final Occupational Medical Assessment, and this eight-week period would have also enabled alternative long-term employment arrangements to be fully contemplated.

[60] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, I have considered that the employment of the applicant would have continued for a further 8 weeks. Therefore, the total remuneration that the applicant would have received in the notional period of 8 weeks following dismissal has amounted to a figure of $8,062.00.

[61] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.00.

[62] Further, I am satisfied that the applicant made reasonable, but unsuccessful, attempts to find alternative employment to replace that from which he had been dismissed, and the small amount of remuneration he obtained in additional secondary employment should be appropriately disregarded.

[63] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[64] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[65] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[66] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be a gross figure of $8,062.00.

[67] Accordingly, separate Orders [PR712418] providing for unfair dismissal remedy in these terms will be issued.

Mr J Moore, General Counsel appeared for the employer.

1. [1] Exhibit 1 - Attachment P.
2. [2] Transcript @ PN415.
3. [3] Sprigg v Paul's Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
4. [4] Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
5. [5] John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
6. [6] Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.
7. [7] Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.

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