//
[2008] AIRC 354
General information, not legal advice.
Australian Industrial Relations Commission
2008-04-24
Original judgment source is linked above.
s.643 application for relief re (Unlawful and HUU) termination of employment
Termination of employment - workplace injury - Certificate of Capacity - whether misrepresentation about capacity - workplace conflict - failure to resolve - e vidence relevant only to witness credibility - admissibility - stress related illness - video surveillance - use of in deciding to terminate employment on grounds o f capacity - conflicting medical opinions - importance of physical examination in determining capacity - Accident Compensation Act 1985 (Vic) - Evidence Act 1995 (Ct h), s.102, s.103
The decision issued by the Commission on 24 April 2008 [PR981558] is corrected as follows:
[1] By deleting "2007" from paragraph 76 and inserting "2006".
Printed by authority of the Commonwealth Government Printer
[Note: a correction has been issued to this document - see [2008] AIRC 354_PR981802 signed 21 May 2008]
s.643 application for relief in respect of termination of employment
Termination of employment - workplace injury - Certificate of Capacity - whether misrepresentation about capacity - workplace conflict - failure to resolve - evidence relevant only to witness credibility - admissibility - stress related illness - video surveillance - use of in deciding to terminate employment on grounds of capacity - conflicting medical opinions - importance of physical examination in determining capacity - Accident Compensation Act 1985 (Vic) - Evidence Act 1995 (Cth), s.102, s.103
[1] J K C worked for BlueScope Steel Limited (BlueScope) and BHP Limited, its predecessor in business, from 13 October 1997 until the termination of his employment on 6 June 2007. On 22 June 2007 J K C applied to the Commission for a remedy in respect of the termination of his employment. The grounds relied upon are ss.643(1)(a) - the termination was harsh, unjust or unreasonable and 643(1)(b) - the termination was unlawful or for prohibited reasons of the Workplace Relations Act 1996 (WR Act). The primary relief sought is an order for reinstatement and lost remuneration. In the alternative J K C begs relief by way of an amount of remuneration in lieu of reinstatement.
[2] BlueScope appeared to defend the claim. It denies that the termination of J K C's employment was harsh, unjust or unreasonable or otherwise for unlawful or prohibited reasons or for a reason including either of those reasons. It contends that the termination of J K C's employment was for a valid reason, namely his misconduct in misrepresenting his capacity for work.
[3] As already noted J K C's application was lodged on 22 June 2007. The matter was referred for conciliation on 27 July 2007. Attempts to resolve the matter by conciliation were unsuccessful and J K C elected to proceed to arbitration of his claim based on the ground that the termination was harsh, unjust or unreasonable. The Commission is empowered to arbitrate such claims under s.652 of the WR Act, which relevantly provides as follows:
(a) the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and
(b) the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
the Commission may so proceed to arbitrate the matter.
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.
[4] The matter was listed for arbitration over the course of four days, concluding with final submissions on 15 November 2007. The following people gave evidence in the case for J K C:
[5] The following people gave evidence in the case for BlueScope:
[6] BlueScope employed J K C as a Headbuilder in October 1997. His duties were concerned primarily with the building and maintenance of a rolling guillotine that was used to cut steel sheets. It is common ground that the function was physically demanding and, anecdotally, work related injuries were not uncommon for those engaged in the work. Initially J K C worked eight hour shifts. He would build between four and six heads in an eight hour shift. After about two years in the job the shifts were changed to 12 hour shifts.
[7] In 2000 J K C sustained a lower back injury in the workplace. He made a WorkCover claim and spent about two weeks on restricted duties. He re-injured his lower back in 2003 for which he received ongoing osteopath treatment in the workplace. He continued in his role as Headbuilder while he was undergoing osteopath treatment.
[8] Following a WorkSafe investigation in 2004 BlueScope was advised that an employee working as a headbuilder should not be required to build more than three heads per day.
[9] In the second half of 2005, J K C suffered an injury to his left shoulder while untangling scrap from the scrap winder of the Metform Slitter. He continued working after the shoulder injury until he went on holidays in mid-November 2005. At about the same time BlueScope terminated the employment of Aaron Woods, a person who worked as a Headbuilder on the same shift as J K C. On about 24 November 2005 J K C consulted a doctor about his neck injury. The doctor issued a Certificate of Capacity in respect his injury restricting lifts to not more than 10 kilograms, work above shoulder height and heavy pushing and pulling on the left side.
[10] From January through to March 2006, the Certificates of Capacity issued in respect of J K C's shoulder injury gradually increased his lifting capacity through 12.5 kilograms to 15 kilograms. Meanwhile, in December 2005 a coil weighing 220 kilograms fell from a capstan arm onto J K C's leg. He received medical treatment, x-rays, anti-inflammatory tablets and returned to work on light duties.
[11] In January 2006 J K C made a complaint to management about his supervisor Mr Spence. Around the same time others also made complaints about Mr Spence.
[12] On 7 March 2006 J K C was a witness for Mr Woods in a claim in the Commission for remedy in respect of Mr Woods' termination of employment. On 8 March 2006 J K C told BlueScope that he was suffering stress and took annual leave for the rest of that week. He remained off work saying he was suffering from stress and on 23 March 2006, he submitted a WorkCover claim for stress, anxiety and depression after consulting a doctor and a psychologist. The doctor issued a medical certificate prescribing anti-depression medication and referred J K C to the psychologist. Upon receipt of the WorkCover claim BlueScope referred J K C to a psychiatrist who examined him on 5 April 2006. BlueScope rejected J K C's WorkCover claim for stress on 19 April 2006.
[13] In June 2006 a meeting was held between Mr Clayton and a representative of BlueScope's insurer and J K C and a representative from the Australian Workers' Union. The meeting was convened by Mr Clayton to resolve issues that J K C had with BlueScope. At the conclusion of the meeting J K C provided to Mr Clayton a typed list of issues that he had with BlueScope. Attempts by Mr Clayton to arrange further meetings were followed by a course of correspondence between him and J K C. Conferences in the Accident Compensation Conciliation Service followed without any resolution to the stress claim.
[14] Following the consultation with his doctor on 15 March 2006, J K C did not return to work until 29 January 2007. He then continued working up to 1 May 2007 when he was summoned to the supervisor's office, and asked to explain his conduct over the course of the Australia Day weekend during which he had been the subject of video surveillance engaged in various activities said to be inconsistent with his certified work restrictions. J K C was stood down on full pay.
[15] On 3 May 2007 J K C was called into work, shown the video footage of his activities at a campsite on the Murray River over the Australia Day weekend and asked to explain the apparent inconsistency between his certified incapacity and his activities at the campsite. After being shown the video footage J K C requested and was given an adjournment to consult a solicitor on 9 May 2007. On 10 May 2007, BlueScope served J K C with a letter informing him that his employment had been terminated, but that the termination was on hold pending a review of the decision to terminate his employment.
[16] BlueScope undertook a review of the decision to terminate J K C's employment. In the course of the review consideration was given to J K C's explanation and reports from his physiotherapist. Ultimately, BlueScope confirmed the decision to terminate J K C's employment effective from 6 June 2007. In the letter confirming the termination of his employment BlueScope gave as its reasons:
… Specifically, the reason for the termination of your employment is misconduct. The misconduct relates to the Company's view that you have misrepresented the extent of your incapacity for work duties, both in declaring (by signing Certificates of Capacity) that you were unable to perform activities outlined in the certificates and by your failure to give any indication to your Supervisors or the Company's doctors that you may, in fact, be able to perform such activities on an occasional or intermittent basis, without risk of aggravation of your injury. The company also relies on the independent medical practitioner's opinion, (upon viewing the video footage) you would be capable of conducting your work duties in an unrestricted manner.
The restrictions set out in the Certificate of Capacity, signed by you, indicate you are not fit to perform these activities at all.
J K C subsequently applied to the Commission for relief in respect of the termination of his employment.
[17] J K C submitted that the termination of his employment was harsh, unjust or unreasonable. He contended that BlueScope's reason for dismissal was based on a misconception of the purpose and effect of Certificates of Capacity. There was no valid reason, he submitted, for the termination of his employment and the termination was thereby unjust. Furthermore, the manner in which BlueScope dealt with its allegations against him was unjust and unreasonable.
[18] J K C referred to Selvachandran v Peteron Plastics Pty Ltd.[1] He submitted that BlueScope's reason for terminating his employment was not sound, defensible or well-founded, but rather prejudiced and irrational. Referring to communications from and exchanged with BlueScope between 1 May and 6 June 2007, J K C contended that BlueScope's position has been inconsistent, reconstructed and illogical and that it has failed to fairly deal with the matter.
[19] BlueScope's case, J K C submitted, rests on the proposition that J K C engaged in misconduct by presenting medical certificates to it which contained restrictions which were inconsistent with the activities that he was shown to perform on the video surveillance. Secondly, it was said that J K C did not volunteer to BlueScope that he could perform tasks that he was shown to perform on the video surveillance. A third proposition that BlueScope relies on, according to J K C, is that he lied to his doctors.
[20] It is not open to BlueScope, it was submitted, to rely on any allegation that J K C had lied to his treating doctor. The allegation was neither relied on as a reason for terminating his employment nor put to him at any stage. The first time it was raised was in BlueScope's submissions after he had filed his evidence in the matter and less than two weeks prior to the commencement of the hearing.
[21] Referring to the decision of the Full Bench in _Intercontinental Ship Management Pty Ltd Appeal against decision and order,[2]_J K C submitted that BlueScope bears the onus of demonstrating that he engaged in misconduct, being conduct so serious as to go to the very heart of the employment relationship. It was further submitted that, to the extent that BlueScope is entitled to rely on dishonesty as a ground for dismissal, the Briginshaw v Briginshaw[3] principles are to be applied. The allegation, it was submitted, is tantamount to an accusation of criminal conduct. The allegations are not supported by the evidence and are unfounded. Reference was made to J K C's demeanour in the hearing, the lengthy cross-examination to which he was subjected and his sensitivity due to his stress and anxiety in the relevant period. In spite of those factors J K C was not argumentative, did embrace propositions against interest without hesitation and showed no anger, bitterness or aggression. J K C submitted that there was no evidence of any history of work-related misconduct or dishonesty during his long service with BlueScope.
[22] The evidence established J K C's injury and that it was likely to cause him pain, discomfort, restriction and incapacity. BlueScope's own doctors accepted that shoulder injuries have a tendency to be chronic because of the nature of the joint. J K C, it was submitted, had no motive to lie. He was not receiving weekly payments of compensation to stay at home. He had been off work for some months but in circumstances where he had been denied compensation in respect of both his anxiety/stress injury and his shoulder injury. He was due to return to work on 1 February 2007. There was no financial gain to be obtained by lying about his symptoms. His only benefit resulting from the injury was continued access to physiotherapy. It is inherently unlikely, J K C submitted, that he would lie about his condition in order to submit himself to a regime of exercise and physiotherapy sessions.
[23] J K C submitted that BlueScope adduced no direct evidence of the representations J K C was said to have made to his treating doctors. Rather it sought to prevent the Commission receiving evidence of Dr Kimmins' treatment of him. When J K C proposed production of his medical practitioner's opinion BlueScope advised that nothing that his medical practitioner had to say could touch on the question of his misconduct.
[24] Reference was made to Dr Lowther's evidence in cross-examination in support of the proposition that J K C's return to work restrictions were consistent with a conservative approach to the treatment of his injury. In all the circumstances it was not open to the Commission, J K C submitted, to infer that he had misrepresented his injury or its symptoms in any way.
[25] Turning to BlueScope's expert medical opinion, J K C contended that it did not assist BlueScope's case. Acknowledging Dr Buzzard's credentials as an eminent physician, his evidence, J K C submitted, could not establish any misrepresentation in relation to his treating doctors. Reference was then made to opinions expressed by Dr Buzzard in October and November 2006 in contrast to the opinions expressed from his view of the video surveillance footage. Emphasis was placed on Dr Buzzard's opinion elicited in cross-examination, that the activities observed on the video footage did not exclude J K C having a left shoulder rotator cuff pathology. Dr Buzzard's evidence, it was submitted, could not provide the basis for an inference that demonstrates any lies or misrepresentations by J K C and does not exclude the existence of left shoulder pathology. That Dr Buzzard held a different view to his treating doctors and his physiotherapist of the appropriate restrictions is not supportive of an inference that J K C lied to his treating doctors.
[26] J K C submitted that the Commission should give considerable weight to the opinion of Jane Burman, his treating physiotherapist, in light of the fact that she had viewed the video. He made reference to her interpretation of the activities shown in the video images.
[27] Referring to the Certificates of Capacity, J K C submitted that BlueScope's case was based on a fundamental misconception of the nature of the Certificates of Capacity. Contrary to law and fact BlueScope had viewed the certificates as J K C's representations as to his capacity. The work restrictions recorded in the certificate are the Doctor's opinion and not the opinion of the worker.
[28] J K C submitted that the proposition that he had some duty to suggest to the employer a capacity to perform tasks occasionally is misconceived. He was acting in accordance with his doctors assessments. If BlueScope believed that J K C had a capacity to perform tasks beyond the certified restrictions it was incumbent on BlueScope to have some dialogue with the treating doctor with a view to modification of the restrictions. Doctor Lowther's evidence refers.
[29] J K C submitted that BlueScope did not adequately express its reasons to him for terminating his employment. Furthermore, it did not conduct a proper investigation.
[30] Finally, J K C submitted that BlueScope's process in dealing with him is indicative of a fundamental prejudice against him. He referred to the evidence including that of BlueScope's refusal to investigate his allegation against Mr Spence, Mr Clayton's frank admission that he believed that there was a conspiracy against Mr Spence, Mr Clayton's attitude to him in relation to his return to work plan and generally.
[31] BlueScope submitted that J K C sustained a soft tissue injury to his left shoulder sometime in 2005 or 2006. It continued with the following chronology of events:
[32] BlueScope made detailed submissions in relation to the evidence. It submitted that the video surveillance footage of J K C's activity over the Australia Day weekend revealed that, contrary to his representations to his treating doctors and his employer, he was not suffering from rotator cuff pathology such as to preclude him from performing his normal duties. The expert medical opinion of Dr Buzzard, it was contended, is conclusive of the fact that J K C was not experiencing rotator cuff pathology of such significance to preclude him from performing his normal duties. It follows that J K C engaged in misconduct for which he has failed to provide any acceptable explanation.
[33] Referring to J K C's evidence of his claims concerning the injury he suffered in August 2005, BlueScope submitted that there was no direct evidence other than J K C's assertions of the report of the injury. BlueScope's evidence, it was submitted, is to the contrary and is more reliable. BlueScope contended that J K C made no report of his injury in 2005 prior to mid-November 2005. J K C is not credible on this issue and, it was submitted, his evidence in this regard says much about his credit generally. BlueScope contended that J K C was friends with a rogue employee by the name of Aaron Woods. Mr Woods' employment was terminated on 17 November 2005 because of his conduct towards his supervisor Mr Spence. The termination of his employment was confirmed on 24 November 2005. J K C, it was submitted, reported his injury between 17 and 24 November 2005 and did not see a doctor until 24 November 2005.
[34] BlueScope ultimately accepted J K C's claim under the Accident Compensation Act 1985 (Vic) (ACA) in respect of the shoulder injury. The injury was a soft tissue injury with some low level inflammation of the bursa area.
[35] J K C, it was submitted, was one of three BlueScope employees who wrote to Sean Hepburn in January 2006 criticising his supervisor, Mr Spence, and attacking his competence. All letters were pointed and condemning of Mr Spence's professionalism. Mr Woods assisted in writing the letters. The letters preceded the hearing of Mr Woods' unfair dismissal claim by two months. J K C gave evidence for Mr Woods in his unfair dismissal claim. When captured on video J K C was camping with his brother Sean, Mr Woods and Mr Charles. All had much to say of a critical nature about Mr Spence.
[36] J K C's stress claim and application for annual leave were made on 8 March 2006, the day after giving evidence in the case for Mr Woods. He was then absent from work until February 2007. For four months of that time he was paid discretionary leave.
[37] BlueScope submitted it is curious that despite J K C seeing his treating doctor, Dr Kimmins, at 9.38am on 14 March 2006 he secured a Certificate of Capacity pertaining to his stress condition from another doctor at 5.56pm the same day. It was further submitted that J K C was not to be believed in his evidence to the effect that he was embarrassed about raising the stress issue with Dr Kimmins. Her treating notes show that J K C raised with her his problems at work and his sleeping problems.
[38] J K C's shoulder injury, BlueScope submitted, was not so debilitating in February and March 2006 as to preclude him from fishing and painting his house. The house painting, it was contended, would have required every bit of movement of the shoulder and could not have been done if he had a rotator cuff injury.
[39] BlueScope, having summoned Dr Kimmins' treating notes, relied on them to show that in April 2006 J K C had unsuccessfully urged his doctor to write a Certificate of Capacity in respect of a hip injury. It was further submitted, in reliance on Dr Kimmins' notes, that J K C on 8 June 2006 was fit to return to work in respect of his stress related injury and that he had told Dr Kimmins that his shoulder was really good while not working.
[40] On 15 June 2006, J K C met with Paul Clayton to discuss a possible return to work but, BlueScope submitted, J K C made it clear that any return to work was conditional on BlueScope's acceptance of the inclusion of seven demands in the return to work plan. The demands were extravagant and unworkable. The demands followed a letter to Mr Clayton dated 4 June 2006 in which J K C accused Mr Clayton of dishonesty. BlueScope submitted that J K C, realizing the accusation was unacceptable sent a revised letter with changed wording but without apology. BlueScope referred to the evidence of the negotiations that ensued between it and J K C to secure his return to work, including the medical examinations and opinions of Dr Buzzard in October 2006.
[41] In November 2006 a WorkCover conciliation in respect of J K C's stress claim failed to resolve the issue and a genuine dispute was determined to exist in respect of BlueScope's decision to deny the claim for compensation. J K C has not pursued the matter since.
[42] On 18 January 2007 Dr Kimmins renewed J K C's Certificate of Capacity imposing the following restrictions:
[43] BlueScope submitted that neither the Certificate of Capacity nor the return to work plan makes reference to repetition or repetitious tasks. The restrictions are unqualified. Repetition in any event was irrelevant. Dr Buzzard's evidence refers. The video footage, BlueScope submitted, reveals that J K C performed tasks that were indicative of a complete absence of rotator cuff pathology. Referring to Dr Buzzard's evidence it was submitted that in January 2007 J K C, contrary to his Certificate of Capacity, was fit to carry out unrestricted work.
[44] In conclusion BlueScope contended that, in all the circumstances there was a valid reason for the termination of J K C's employment. He was not genuinely suffering from a requisite level of rotator cuff pathology in January 2007 such as to preclude him from performing his ordinary work duties. He represented that he was suffering such an injury. Dr Buzzard's opinion, it was submitted, is critical, given his:
[45] It is to be remembered that the issue I am concerned with is whether the termination of J K C's employment was harsh, unjust or unreasonable. It is not my role to determine whether J K C has or had a compensable injury at any time during his employment. Thus the principal issue in this case is whether J K C misrepresented to his treating doctor and his employer the seriousness of his injury or capacity to carry out his normal duties as an employee with BlueScope. There is also an issue about whether J K C was duty bound to voluntarily inform his employer of a capacity to engage in the sort of activity in which he was seen to engage on the video footage.
[46] Although there are issues about when, as opposed to whether, J K C suffered an injury to his left shoulder in 2005 and whether he reported it at the time of the injury, BlueScope's acceptance of the associated WorkCover claim for expenses would, in the ordinary course, make it unnecessary for me to determine those issues. BlueScope however dealt with the matter at some length as part of its attack on J K C's credit. Evidence that is relevant only to a witness's credibility is not admissible.[4] This rule of evidence is subject to certain exceptions, including the circumstance where evidence that is adduced in cross-examination, has substantial probative value.[5] Although the Evidence Act allows a broad discretion in determining whether the evidence has substantial probative value, one prescribed matter to which regard may be had, is the period that has elapsed since the acts or events to which the evidence relates were done or occurred. On one view the evidence about reporting the incident in 2005 may be said to be part of an ongoing course of acts or events from the time of the incident in 2005 up to January 2007. On the other hand it may be seen as one of a number of selective events upon which BlueScope relies to promote an inference that J K C is a person who has a propensity to lie. I see no unifying element between that which is an undisputed fact, namely the fact of injury, the dispute over the day on which it occurred in 2005 and the issue about whether, in 2007, J K C misrepresented the seriousness of his injury as it presented in January 2007. In my view the evidence about the fact of the injury and its reporting date is not relevant to the issues I have to determine.
[47] J K C continued working after injuring his shoulder in late 2005 albeit with certain restrictions on his activity. It is common ground that on 3 January 2006 he wrote to the site manager, Sean Hepburn, and the service centre manager, Mr Clayton, complaining about his supervisor, Richard Spence.[6] In the letter J K C makes reference to the fact of his oral complaints about the incidents of which he complains in the letter, expresses his frustration about the issues not being resolved and, in particular, Mr Hepburn's refusal to do anything about it. The letter concludes as follows:
I feel as though my character has been called into question over events that are simply not true and I have received no help from either Sean Hepburn or Paul Clayton. I am asking management to take my complaints seriously, as this not only affects my job and my work life, but it is also having an effect on my home life. It is for this reason that I am asking for your help in this matter.
[48] As will be seen later in these reasons for decision I have concluded that the issues that gave rise to J K C's letter in January 2006 bear upon matters that I must determine. I am not satisfied that the issues raised by J K C in his letter of 3 January 2006 were fairly or properly considered. It seems that Mr Hepburn thought it was just a lot of hot air. Mr Clayton viewed the issue as part of conspiracy, of which J K C was a party, against Mr Spence. I acknowledge the prerogative of the employer and its right to conduct its business in whatever manner it thinks fit. It is difficult to imagine however, how or why it did not examine more closely the serious allegations that J K C raised in his letter. In my view the letter was not taken seriously. In fact I consider the issue to have been badly managed and this has led to unfortunate consequences, of which more will be said in due course. BlueScope approached the matter with a closed mind believing that J K C was part of a conspiracy.
[49] In March 2006, J K C told BlueScope that he was suffering from stress and asked for annual leave. He left work on 8 March 2006 and, after consulting a doctor on 14 March lodged a Certificate of Capacity in respect of his diagnosed stress condition. BlueScope has raised as an issue J K C's conduct in consulting separate medical practitioners in securing a Certificate of Capacity in respect of his stress claim. The inference sought to be drawn here, although not expressly stated, is that J K C shopped around for a medical practitioner who would be prepared to issue a Certificate of Capacity in respect of his stress claim. Although that may have grounded a defence of serious misconduct in an action for wrongful termination of employment it was not put in that context. Neither was it put to J K C that he had shopped around for a certificate in respect of his stress. BlueScope simply submitted that it was curious that he had visited two doctors on the same day. In my view this evidence could only go to an issue about J K C's disposition. It was not raised as an issue in the decision to terminate the employment and, in my view, is inadmissible as evidence of conduct warranting dismissal at the time the decision was made. I am not satisfied in any event that the inference is open on the evidence.
[50] It is common ground that, on 8 March 2006, J K C claimed to be suffering from stress related illness. He ceased work on that day and, after visiting Dr Kimmins, his treating practitioner for his shoulder injury, and Dr Andrianov, who he consulted about stress, on 14 March 2006, he lodged a claim for compensation under the ACA for stress. BlueScope rejected the claim in respect of the stress related illness, but it allowed J K C discretionary sick leave on full pay up to July 2006, that is a period of about four months. In the circumstances I think it appropriate that I take account of this evidence, but in doing so I do not draw any inference as to J K C's motivation for consulting a doctor other than his treating doctor about stress on the same day. There is nothing in his evidence to discredit the truth of his stated feelings about discussing the issue of stress and anxiety with Dr Kimmins, his treating practitioner for his shoulder injury. Nothing said in his evidence detracts from that probability. The fact that he had a long discussion with her about problems at work and not sleeping is susceptible to competing inferences in any event and it would be dangerous to draw an inference that J K C was in effect guilty of perpetrating some act analogous to fraud.
[51] I turn now to the primary issue, which is whether the activities in which J K C engaged over the Australia Day weekend were inconsistent with his workplace restrictions. The workplace restrictions were those imposed by Dr Jenny Kimmins as J K C's treating doctor. Dr Kimmins was not called to give evidence at the hearing. Her treating notes however were produced on summons by BlueScope. Counsel for BlueScope questioned J K C at length on the contents of the doctor's notes. Ultimately Counsel for J K C called for the notes and, after questioning J K C in re-examination about the contents, tendered them in evidence. I admitted the documents[7] over the objection of BlueScope and I received them as evidence of the relevant facts stated therein.
[52] Dr Kimmins first issued a Certificate of Capacity in respect of J K C's left shoulder injury on 24 November 2005. The Certificate covered the period to 30 November 2005 and records the following restrictions:
Dr Kimmins reviewed J K C's fitness weekly for a period of four weeks and then fortnightly from January to April 2006 and, with one exception, approximately monthly thereafter. In March 2006, Dr Kimmins increased the lifting capacity to 12.5kg, but made no variation to the other restrictions. On 28 March 2006 the lifting capacity was raised to 15kg.
[53] Dr Kimmins' treating notes for 30 March 2006 record that J K C's shoulder was feeling much better and that he was:
Now on stress leave due to interpersonal issues at work has seen psychologist and psychiatrist. Seeing another LMO for this - not working at all for past 2 weeks.
On antidepressants 2 weeks, feels they are not working.
The notes for that date also record other physiological complaints about J K C's hip, groin and thigh. The doctor's later notes show that diagnostic imaging in respect of these complaints revealed that all was okay.
[54] In her notes for 15 April 2006 Dr Kimmins records that J K C was still off work - sent to psych and that he was not returning to work until issues are sorted out. On 10 May 2006 Dr Kimmins recorded that there was a long discussion regarding options at work and in her notes on 8 June 2006 the doctor records as follows:
Saw own GP - has said OK to go back to work, but not going back until RTW plan is completed. This hasn't occurred yet. Doesn't feel RTW plan will be agreed to.
[55] Dr Kimmins' notes show that on 23 November 2006, J K C had been prescribed Efexor-XR and that he received hydro dilatation and intra-articular cortisone treatment on 21 December 2006 and again on 15 February 2007. Efexor-XR is used in the treatment of depression, panic attacks and anxiety. Hydro dilatation and cortisone treatment for his shoulder was, as I understand the evidence, administered by hypodermic and was for the purpose of alleviating pain and increasing mobility.
[56] On 18 January 2007 Dr Turnbull reviewed J K C's capacity as Dr Kimmins was not available. Dr Turnbull added the words As per agreed RTW plan in the restrictions box on the Certificate of Capacity form. On 13 April 2007 the lifting capacity was raised to 20kg, but with no further variation to the other restrictions.
[57] During the period 24 November 2005 to 30 March 2006, J K C received physiotherapy treatment from Jane Burman of Sportscare Physiotherapy and Pilates. J K C did not attend for physiotherapy again until February 2007. While I note her opinion about the video footage of J K C's activities I do not find it particularly helpful.
[58] Dr Buzzard practised surgery for 35 years. Presently he is an Associate Professor of Surgery and of Anatomy at Monash and spends his time teaching surgery and anatomy at Monash. He is still seeing and treating some patients not requiring surgery. He gave evidence orally of his opinions as expressed in his witness statement and reports exhibited thereto. He expressed his opinions directly and with candour. Dr Buzzard first saw J K C at BlueScope's request on 28 February 2005 in relation to lower back strain. He saw J K C again on 18 October 2006 and again at the request of BlueScope. Dr Buzzard reported[8] that there is some evidence of him having a rotator cuff problem in the left shoulder. In Dr Buzzard's opinion at that time J K C's shoulder problem was materially contributing to his incapacity to work in a job involving a full range of movement of the left shoulder frequently, but noting that his time off work was apparently related to his stress as against his left shoulder. Dr Buzzard also records the following:
It would appear that he also has a stress problem. That is the cause of him being off work. I of course cannot comment on this on the grounds that this is outside the field of my professional expertise.
Subsequently, in response to a specific written question about J K C's fitness for all work, Dr Buzzard states that he was fit for suitable employment from a physical perspective and goes on to note again that he is apparently off work on grounds of stress as against physical injury now, and concludes as follows:
From a purely physical point of view, he is capable of returning to work using the return to work plan which you have sent me. The evidence that supports this opinion ignores the psychological situation and is based on the physical history and physical clinical examination and account of the radiological findings.
[59] In a report dated 28 February 2007[9] and addressed to Sparke Helmore, solicitors for BlueScope, Dr Buzzard records that he has viewed a DVD and surveillance report which appeared to indicate that J K C is performing unrestricted physical activity. Dr Buzzard's report goes on to record that the activity he observed did not exclude J K C having a left shoulder rotator cuff pathology, but that it suggested that the symptoms of the physically-based pathology are probably not as great as Dr Buzzard understood them when he saw J K C in October 2005. The doctors' report concludes as follows:
You have asked me whether or not he requires further medical treatment. I can't provide that information without having the opportunity of reviewing J K C again at first hand.
[60] I note at this point that BlueScope claimed legal professional privilege in respect of the report cited in the preceding paragraph. It contended that the report was prepared in contemplation of litigation in respect of J K C's WorkCover claim. I admitted the document into evidence on the basis that it was not a privileged communication because it was not prepared in contemplation of litigation in respect of the termination of J K C's employment and certainly not in contemplation of the proceeding before the Commission. In any event it is a report that is referred to in Dr Buzzard's report dated 21 March 2007 and upon which BlueScope seeks to rely in these proceedings.
[61] Coming then to Dr Buzzard's report dated 21 March 2007,[10] he refers to his report of 28 February 2007 and records, as he did in that report, that he had no way of positively identifying the subject of the DVDs as being J K C. The doctor does not directly record in his 21 March report, as he did in the 28 February report, that the activity he observed on the video did not exclude J K C having left shoulder rotator cuff pathology. Rather, Dr Buzzard reports:
… although there is evidence of an underlying left rotator cuff problem, it would appear that this further dimension provided by the surveillance material is such as to make me conclude that the left shoulder problem is not of significance and that it probably doesn't require any significant treatment. In particular, I don't think that the left shoulder problem is such as to preclude him from carrying out unrestricted work.
[62] In cross-examination Dr Buzzard agreed with the proposition that J K C's activities as seen on the video do not indicate that he does not have rotator cuff pathology. Furthermore, he agreed that the only way one could really determine whether or not the pathology continued would be to engage in some further examination of J K C.
[63] Dr Lowther in his evidence in cross-examination agreed with the proposition that J K C's return to work restrictions were consistent with a conservative approach to the treatment of his injury. Dr Lowther also gave evidence to the effect that cortisone injections can be used to reduce inflammation, swelling and pain. He said that it could have immediate effect and that it would normally be reviewed in about 10 days to a fortnight. The treatment could give relief for any length of time afterwards. He also gave evidence to the effect that it would be inappropriate to alter the restrictions imposed without first consulting the worker's treating practitioner.
[64] I need refer to one further medical opinion which is exhibited to Mr Clayton's witness statement.[11] It is contained in a letter sent from Dr Andrianov to BlueScope in response to a letter from Mr Clayton dated 27 November 2006 seeking a report on J K C's capacity to return to work. Relevantly Dr Andrianov wrote:
... J K C began attending Beach Street Family Medicine, Frankston, on 14 March 2006.
When I saw him for the first time, he was in a very distressed state, crying and describing the long story about the conflict that he was experiencing at his work place. He found working with his supervisor very difficult. …
My main reason for issuing the first WorkCover certificate was J K C's anxiety and depression. He was experiencing a high level of emotional distress characterised by depressive symptoms, anger, fear and anxiety.
Mr. Jason Claypole, a 28 year old man, is suffering from anxiety/depression that was precipitated or exacerbated by the conflict he was experiencing at work.
His anxiety/depression has improved significantly and he is ready to resume his work.
I believe Mr. Claypole can restart his normal duties. He would benefit from having a relatively low stress workload with a gradual increase in a time-sequenced fashion.
I think it is in the company's interests to create a reasonable working environment for their employees.
I would also stress that Mr. Claypole's mental health needs to be closely monitored to rule out any unforeseen lapses. The aforementioned conflict must definitely be addressed.
[65] I deduce from the medical evidence, including the notes of Dr Kimmins, and the evidence of Ms Burman, that in March 2006 and up until 23 November 2006 at least, J K C was being treated for stress or depression/anxiety.[12] His depressive/anxiety condition however, was no obstacle to him resuming his normal duties. Treatment for his shoulder continued at least up to 15 February 2007, although he did not undergo any physiotherapy from 30 March 2006 until February 2007. His capacity to resume normal duties was still subject to restrictions in respect of his shoulder. The Certificates of Capacity issued respectively by Dr Turnbull and Dr Kimmins on 18 January and 15 February 2007 give as their diagnosis of J K C as Left shoulder injury. That is the same diagnosis given in the first Certificate of Capacity that Dr Kimmins issued on 24 November 2005. The injury is identified more specifically in evidence as rotator cuff pathology, which is inflammation of the bursa. The inflammation should get better if treated appropriately and conservatively. J K C's return-to-work restrictions were consistent with a conservative approach to his treatment, which included hydro dilatation and cortisone on 21 December 2006 and 15 February 2007. It is probable that, as at 26 January 2007, the left shoulder problem was not such as to preclude him from carrying out unrestricted work.
[66] Does it follow from my findings in the preceding paragraph that J K C has misrepresented the seriousness of his injury or otherwise failed in some duty to report his improved capacity? I think not. There is no direct evidence that J K C misrepresented his pain or symptoms to the medical practitioners who attended on him. First and foremost it is clear that J K C did have a shoulder injury. He was receiving treatment for it up to 15 February 2007. The evidence suggests, and it is a reasonable inference, that, by 26 January 2007, the cortisone treatment that he received on 21 December 2006 would have reduced any inflammation and pain from which J K C had been suffering from his shoulder. Secondly, it was not the shoulder injury for which J K C had been off work. It was a reason for the restrictions that had been imposed in respect of his work. Although he had been providing Certificates of Capacity in respect of his shoulder he had been off work because of stress. Of particular significance in this regard is the evidence of Dr Buzzard and Dr Kimmins about his stress situation. Dr Buzzard in his October 2006 report alludes to the possibility of stress being a factor impeding a return to work. Dr Kimmins' notes reveal the nature of J K C's anti-depressant medication. Dr Andrianov's report is explicit; the conflict he had been experiencing at work needed to be addressed.
[67] While J K C carries the ultimate or legal burden of establishing that the termination of his employment is harsh, unjust or unreasonable BlueScope, having asserted as a fact J K C's misrepresentation justifying the termination of his employment, carries the burden of adducing evidence sufficient to prove it. It has failed to discharge that onus. It has established that as at 26 January 2007, the probability is that J K C could work unrestricted. BlueScope's own expert medical opinion raises the spectre of that probability being the result of conservative treatment as recently as December 2006.
[68] J K C's absence from work began in March 2006. The absence was due to his depression/anxiety as diagnosed by Dr Andrianov on 14 March. His WorkCover claim in respect of depression/anxiety was rejected. He remained off work however on discretionary sick leave. In June 2006 Mr Clayton invited him to a meeting to discuss J K C's issues with BlueScope. At the conclusion of the meeting J K C presented a list of issues. BlueScope contends that the list of issues is in effect a list of J K C's demands or conditions for his return to work. J K C denied that the list was demands or conditions. He claims that it was, in effect, an aide memoire for the purposes of the discussion. The list contains seven numbered points underpinned by a brief description of each point. It is convenient to set out the points:
1. Future Diary notes to allow a right of reply to any person accused of any wrong doing.
2. Past diary notes to be made public knowledge to employees and/or destroyed.
3. If any conversation between myself and management turn confrontational a third party of my choice (ie. Union delegate) must then be involved.
4. Colleen McKenna to be re-instated as EEO Officer.
5. My allegation to be investigated thoroughly and by an agreed impartial company and findings acted on accordingly.
[69] To understand the true nature of the list it is necessary to bring to mind three facts. The first is Mr Clayton's evidence of the purpose of the meeting, namely to discuss J K C's issues with BlueScope. The second is the events of December 2006 and January 2007 and thirdly Dr Andrianov's letter to Mr Clayton in November 2006. In light of the purpose of the meeting the note is unexceptional. J K C was invited to discuss the issues he had with BlueScope. The invitation followed upon a course of correspondence between BlueScope and J K C and a conciliation conference in the Accident Compensation Conciliation Service concerning his stress claim. It is clear from the terms of the invitation itself that BlueScope knew that J K C had some issues with it about his depression and anxiety. BlueScope were aware also that J K C considered the issues of the preceding December/January as unresolved. I have referred to those issues in paragraphs [47] and [48] above and it is to those matters that I now turn.
[70] In December 2005 Mr Spence suggested to J K C that about a year earlier he (J K C) had threatened to get ten guys to beat the shit out of him in the car park. J K C denied the allegation and asked his union delegate to raise the matter as a dispute. The union delegate raised the matter with Messrs Clayton and Hepburn, both of whom regarded the complaint as a vendetta against Mr Spence. J K C subsequently approached Mr Hepburn accusing Mr Spence of making false allegations against him and Mr Hepburn told him nothing was going to be done. Consequently, on 3 January 2006, J K C wrote to Messrs Clayton and Hepburn relating the exchange between him and Mr Spence when the allegation was made and noting the fact of the oral complaints by the union delegate and himself. In relation to his discussion with Mr Hepburn about the matter he concluded as follows:
Sean replied that nothing was going to be done, Richard [Spence] was not going to be spoken to and my complaint was going to be taken no further. I left work that day angry, stressed and frustrated that I was not able to make my complaint against Richard heard.
[71] J K C continues in his letter to accuse Mr Spence of other instances where he has manipulated the truth to his own advantage and that management has believed his version of events. Detailing other examples of conflict between himself and Mr Spence, J K C goes on to record as follows:
None of these incidents have ever been resolved and, in fact, have been perpetuated further by management. I have since heard that Richard keeps a diary containing his version of events, which is not available for viewing by those mentioned in it. …I want to ensure that employees have the "Right of Reply" before any notations are made or rumours are spread by management. If Richard keeps a diary for his own memory then I have no objection if he wishes to include untruths and imaginary events, however, if Richard is going to report these fanciful stories to management as truth, then management should follow-up on any allegations as they are raised, and at the very least allow the employee the "Right of Reply" before allowing Richard to report them as fact.
J K C's letter then concludes with the paragraph I have set out at the foot of paragraph [45] above.
[72] Mr Hepburn responded to J K C's letter on 31 January 2006. The response addressed two issues. It states that Mr Hepburn had discussed the matter with Mr Spence and, given his view of what was said and the time elapsed, he did not intend to take further action. As for the issue of diary notes the letter states in effect that it was common and accepted practice for supervisors to make and use diary notes and that employees could keep and rely on their own diary notes if they so desired. The response does not address the several other incidents that are raised by J K C in his letter. With the exception of items 4, 6 and 7 in the list that J K C presented at the conclusion of his meeting in June 2006, the issues are a reflection of the matters that J K C raised as unresolved issues in his January letter to Messrs Clayton and Hepburn. Item 4 is an expression of his lack of trust or faith in his supervisors in dealing with his issues. Despite the fact that item 6 is self explanatory it is unreasonable. Item 7 is not an unreasonable request.
[73] In my view, Dr Andrianov's letter clarifies J K C's motivation and purpose in presenting his list of issues. The letter written in November 2006 reveals that J K C was still depressed and anxious. The workplace conflict still needed to be addressed. It is not clear that it has been addressed. It is not evident that any compassion was shown to J K C in the ensuing negotiation of his return to work plan. In fact the correspondence suggests that BlueScope was anything but compassionate in its dealings with J K C between June and his ultimate return to work in January 2007.
[74] It is the fact, as BlueScope contends, that J K C was absent from duty for a period of 11 months. It is also the case that a period of that duration would be, in the normal course, sufficient time for his shoulder injury to have recovered. While the period of the pathology is unusual, it is not however, unheard of.[13] BlueScope's own medical advice from Dr Buzzard in October 2006 was to the effect that J K C's shoulder problem was materially contributing to his incapacity to work in a job involving a full range of movement and that the return work plan was appropriate. But as Dr Buzzard notes it is J K C's apparent stress problem that is the cause of him being off work. Dr Buzzard further notes that his assessment is based on physiological presentation and does not take account of the psychological situation. Following upon that advice, BlueScope, to its credit, wrote to Dr Andrianov seeking his opinion on J K C's fitness for return to work.
[75] Dr Andrianov advised BlueScope that J K C is suffering from anxiety/depression and that it was precipitated or exacerbated by the conflict he was experiencing at work. Expressing the view that J K C can restart his normal duties it was suggested that he have a relatively low stress workload. Dr Andrianov emphasised that J K C's mental health needed to be closely monitored to rule out any unforeseen lapses and that the workplace conflict must definitely be addressed_._ There is no evidence that BlueScope took account of this advice in calling J K C to account. It must be noted that J K C did not raise it in his own defence, although it has not been suggested that he was aware of or appreciated BlueScope's access to Dr Andrianov's report.
[76] It is clear in my view that J K C was fit to return to work in July 2007. His failure to return to work was as much the intransigence and lack of compassion of BlueScope as it was J K C's desire for reassurance and resolution of his outstanding issues with Mr Spence.
[77] BlueScope contended that J K C failed in his duty to disclose his improved physical capacity. For all the reasons relating to his medical and mental condition I consider this to be a claim without substance. In any event J K C had no such duty. I must now determine whether the termination of J K C's employment was harsh, unjust or unreasonable.
[78] BlueScope contends that there was valid reason for the termination of J K C's employment, namely his conduct in misrepresenting to his treating doctors and BlueScope, the true extent of his injury. I must be satisfied that there was in fact conduct that would ground a reason for the termination of his employment. In my view it is more probable than not that J K C did not misrepresent his condition at any relevant time prior to the termination of his employment. While I am satisfied that J K C had a physical capacity to undertake his normal duties as at 26 January 2007, for all the reasons set out above, I am not satisfied that there was a valid reason for the termination of his employment.
[79] At a meeting with J K C on 1 May 2007, BlueScope informed him that on 25, 26 and 27 May 2006, he was observed engaged in activities that are inconsistent with his alleged incapacity associated with his neck and shoulder. He was further informed that BlueScope was of the view that he had been dishonest in respect of his assertions of his capacity for work. In its letter of 10 May 2007 BlueScope notified J K C that his employment was terminated for the reason that his activity over the period of 25, 26 and 27 January 2007 was inconsistent with his allegations of incapacity associated with his neck and left shoulder. I am satisfied that J K C was notified of the reason for the termination of his employment, albeit that the reason was not substantiated.
Was J K C given an opportunity to respond to the reason?
[80] BlueScope was invited to respond to the allegations at interviews on 1 and 3 May 2007. He had been warned that his conduct could result in the termination of his employment. On each occasion he was given time to consider his response and, on the second occasion, to take legal advice. J K C had difficulty securing an appointment with a solicitor. BlueScope agreed to allow him until 9 May to provide a written response to the allegations made against him. He was still unable to consult a solicitor in the time allowed.
[81] On 10 May 2007 BlueScope wrote to J K C refusing his request for further time to respond and informing him of its decision to terminate his employment. The letter goes on to inform J K C of his right to seek a review of the decision to terminate. On the same day as the letter advising of the termination, the solicitors for the Australian Workers Union (AWU) wrote to BlueScope informing it that they acted for the AWU in respect of J K C. They requested a copy of the surveillance video and notified it that once the video footage had been received the solicitors would obtain reports from J K C's treating medical practitioners and advise BlueScope of the medical advice that it received.
[82] BlueScope's solicitors responded to the solicitors for the AWU informing them that J K C had been given ample opportunity to respond to the allegations. The letter continues stating that BlueScope does not require the opinion of J K C's medical practitioner in order to form a view as to whether J K C had misconducted himself. It offered to allow the AWU solicitors' an opportunity to view the video at BlueSope's solicitors offices on 18 May 2007. The AWU solicitors wrote to BlueScope's solicitors again requesting delivery of a copy of the video shown to J K C on 3 May and all surveillance video recordings and associated medical reports. BlueScope's solicitors responded on 14 May 2007 agreeing to provide a copy of the video footage shown on 3 May, stating that it did not require a response to the remainder of the video surveillance footage.
[83] The solicitors for the AWU ultimately made submissions and the decision to terminate was reviewed. I am not satisfied however, that J K C was given an opportunity to respond. The fact that he was not given the opportunity to provide his own doctor's assessment or subjected to a physical examination by the company's doctor suggests that BlueScope did not have before it the necessary information upon which to form a fair and reasonable view.
Was J K C warned about unsatisfactory performance?
[84] There is no allegation of unsatisfactory performance and this consideration does not arise.
Impact of employer's undertaking on procedures for effecting termination?
[85] The size of the employer's undertaking is likely to have impacted positively on the procedures followed in effecting the termination.
Impact of absence of dedicated human resource?
[86] BlueScope has a dedicated resource. The consideration is not applicable.
[87] I have mentioned already the apparent absence of compassion on the part of BlueScope in dealing with J K C. I acknowledge the dilemma employers face in managing WorkCover claims generally and suspected frivolous claims in particular. But it is important not to confuse the grounds for denying liability for a work-related injury with the proper basis for terminating an employee's employment. This is particularly apposite in cases where there is an underlying issue of depression and anxiety associated with conflict in the workplace. I take account also of BlueScope's failure to adequately address the conflict issues associated with Mr Spence because it believed that J K C was part of a conspiracy against Mr Spence.
Was The Termination Of Employment Harsh, Unjust Or Unreasonable?
[88] I am satisfied that the termination was unjust because of the absence of a valid reason for it. It was harsh because of the absence of any account of or consideration for the impact of the termination on J K C's mental health. I am satisfied that the termination was unreasonable in light of BlueScope's failure to have J K C medically examined before deciding to terminate his employment despite the view of its own medical experts that the work restrictions should not be altered without some dialogue with his treating doctors.
[89] Having determined that the termination of the employment was harsh, unjust or unreasonable the question is what, if any, remedy is appropriate. In dealing with that question I must have regard to the following matters:
(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
[90] There is no evidence that any order that I may make will have any effect on the viability of BlueScope's undertaking.
[91] J K C served the business for nearly 10 years. In my view that is a relatively long period of service and favours the making of an order for a remedy.
[92] It seems to me that J K C could have expected to continue in employment for a reasonable period of time if the circumstances of his work conflict and his situation had been properly investigated. The likely continuation of his employment should not be discounted by reason of the failure of BlueScope to conduct the investigations that the situations demanded. The evidence does not establish J K C's earnings at the time of the termination of his employment. It appears that he was not receiving remuneration of any kind between July and his return to work in January 2007.
[93] There is no evidence of J K C's attempts to mitigate his loss.
[94] It is clear in my view that the relationship between J K C and the person who would be his immediate supervisor, Mr Spence, was and is unlikely to be a happy one. I may have been assisted in considering this issue if Dr Andrianov had been called to give evidence. As he was not called I can only conclude that his evidence would not have assisted J K C on this point. It is evident also that there is little hope of a satisfactory working relationship between Mr Clayton and J K C.
[95] I have concluded that a remedy is appropriate. Section 654(3) reposes in the Commission discretion to make an order requiring the employer to reinstate the employee if it considers it appropriate to do so. I have formed the view that reinstatement is not an appropriate remedy in this case. While I may have been persuaded that reinstatement was the appropriate remedy for J K C, I have concluded that it is not appropriate in the absence of some evidence of the likely impact that would have on his mental health. It is evident that Mr Clayton maintains a belief, albeit unfounded in my view, that J K C is untrustworthy. J K C is evidently untrusting of the management of BlueScope and Mr Spence in particular. In the circumstances I am not satisfied that reinstatement is an appropriate remedy.
[96] Having determined that reinstatement is inappropriate it is necessary to consider whether it is appropriate to make an order for an amount in lieu of reinstatement. In determining that issue I must have regard to all the circumstances of the case, and in particular, the same matters in which I have considered whether a remedy is appropriate, as well as any misconduct of the employee that contributed to the decision to terminate his employment. I refer to and repeat the matters set out in paragraphs [87] to [91]. I am satisfied that there is no misconduct to which I should have regard.
[97] Given the absence of any evidence of J K C's remuneration during his employment with BlueScope and of his attempts to mitigate his loss it is not possible for me to determine whether an order for an amount in lieu of reinstatement is appropriate. Accordingly, I propose re-listing the matter for hearing of such further evidence and submissions as the parties may be advised to make. The parties will be advised in due course of a hearing date.
L Doust of Counsel instructed by Maurice Blackburn for Sean Claypole.
N Harrington of Counsel instructed by Blake Dawson for BlueScope Steel Limited.
TERMINATION OF EMPLOYMENT - misconduct - alleged dishonesty - workplace injury - stress related illness - capacity to perform work - video evidence - s643 Workplace Relations Act 1996 - Accident Compensation Act 1985 - whether employee gave inaccurate information to doctors regarding workplace injury - whether WorkCover Certificate of Capacity is representation as to capacity - underlying issue of depression and anxiety associated with conflict in workplace - lengthy period away from work - employer obtained video surveillance of employee's activities outside working hours - employee terminated for misrepresenting capacity to work - Commission satisfied Certificates of Capacity provided in respect of shoulder injury but absence from work due to stress - employer failed to have applicant medically examined in person after video evidence - no evidence of misrepresentation of symptoms to treating doctors - workplace conflict issues not properly considered by employer - no misconduct by applicant − termination harsh, unjust and unreasonable - reinstatement not appropriate - no evidence of remuneration or attempts to mitigate loss - matter re-listed for hearing.
Citation: J K C v BlueScope Steel Ltd [2008] AIRC 354 (24 April 2008)
Printed by authority of the Commonwealth Government Printer
JKC
BlueScope Steel Limited [2008] AIRC 354;
(1995) 62 IR 371