Mr Richard Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989

Mr Richard Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 - FWCFB 2018 case summary — Zoe

[8]

[4] Mr Hyde was employed by Serco Australia Pty Ltd (Serco) from September 2009 as a Case Management Custodial Officer (or 'Custodial Officer') at the Acacia Prison (the Prison) in Western Australia. The Prison is owned by the Western Australia Department of Justice and managed under contract by Serco. Mr Hyde was employed under the terms of the Serco CPSU Acacia Prison General Enterprise Agreement 2014.[4]

[5] The position description for the role of Case Management Custodial Officer is attached to Mr Southerton's statement.[5]

[6] All Custodial Officers employed at the Prison are required to undergo compulsory training as part of their role, including Defensive Equipment Techniques Training (or 'DETT'). DETT involves a three (3) day course and a two (2) day training refresher annually. The DETT is undertaken in a controlled environment and involves a complexity of movements with a degree of force applied, increasing over the period of the training program. Custodial Officers are trained to intercept, stabilise and resolve situations. A task analysis for the DETT is attached to Mr Southerton's Statement.[6]

[7] In March 2016 Mr Hyde consulted an orthopaedic surgeon, Dr Vara Mukundala, concerning pain and stiffness in his right ankle. On Dr Mukundala's advice, Mr Hyde decided to undergo surgery to fuse his right ankle. The surgery was performed by Dr Mukundala on 8 June 2016. Mr Hyde took a period of personal leave in order to recover from the operation and undertake rehabilitation.

[8] Mr Hyde performed restricted duties as a Custodial Officer for a number of months in the 'movements' unit after his return to work following his surgery. As part of Serco's return to work program, Ms Argiropulos advised Mr Hyde that Serco required additional information from Mr Hyde's treating physician in respect of his medical condition and fitness for work. In November 2016, Ms Argiropulos wrote to Dr Mukundala, with Mr Hyde's consent, seeking further information in relation to Mr Hyde's fitness for work.

[9] Mr Hyde had his last follow-up appointment with Dr Mukundala on 23 November 2016. At that appointment Mr Hyde requested that he be provided with a medical certificate so he could resume his normal duties. Mr Hyde informed Dr Mukundala that he worked as a Custodial Officer at Acacia Prison. Dr Mukundala provided Mr Hyde with a medical certificate dated 23 November 2016 certifying that he 'is fit for work (full duties) from 24/11/2016'.[7] Mr Hyde has not seen Dr Mukundala following his last appointment on 23 November 2016.

[10] On 24 November 2016 Serco received Dr Mukundala's medical certificate. Serco formed the view that the medical certificate did not provide adequate detail with respect to Mr Hyde's fitness for work with reference to the inherent requirements of his role, including whether Mr Hyde could, or could not, recommence and perform his full duties with respect to prisoner contact.

[11] In the period 1 December 2016 to 10 January 2017, Mr Hyde was on a period of annual leave. On his return to work, he continued to work in 'movements' on restricted duties.

[12] In early February 2017, Serco issued a defence and control training 'physical readiness form' in advance of the annual DETT refresher training.

[13] Mr Hyde completed the Physical Readiness Form on 3 February 2017 in which he confirmed that he was not able to run for one (1) kilometre. Serco decided to request a full medical report from Mr Hyde's treating practitioner to understand his ability to complete the DETT refresher training and perform the duties required as part of his Position.

[14] In February 2017 Mr Hyde saw his treating general practitioner, Dr Afilaka, and asked that he provide an assessment and certify if he was fit to resume the full duties of his role.

[15] Mr Hyde was provided with a bundle of documents by Mr Newell (Serco's Health, Safety and Wellbeing Manager at Acacia Prison) to provide to Dr Afilaka for the purpose of this assessment, including:

a position description for a Case Management Officer;

a position description that relates to 'Defence and Control' strategies;

a further position description that relates to training for Defence and Control;

• three 'Summary of Job Demands' documents that collectively set out the full range and frequency of duties that are required as part of the role.[8]

[16] Mr Hyde consulted Dr Afilaka on 4 February 2017 and provided him with the documents he had been given by Mr Newell.[9] Dr Afilaka provided a medical certificate, dated 15 February 2017, which certifies that, in his opinion, Mr Hyde 'will be fit to continue his usual occupation as detailed in his position description - as case management officer, he will be able to go through the defence and control training and defence and control-in field'.[10]

[17] On 13 March 2017, Mr Lahad, HR Advisor at the Prison, wrote to Dr Mukundala, with Mr Hyde's permission, seeking further information in respect of Mr Hyde's fitness for work.[11] In particular, Serco sought specific information from Dr Mukundala in relation to the following matters:

[44]

[29] At first instance it was not in dispute that Mr Hyde was dismissed on medical grounds after undergoing surgery to alleviate symptoms of osteoarthritis affecting a joint in his right ankle. The surgery was performed by Orthopaedic Surgeon, Dr Vara Mukundala in June 2016 to fuse a joint in Mr Hyde's right ankle. Based on a report from Dr Mukundala dated 1 May 2017, Serco maintained the Appellant was unable to perform the inherent requirements of his job.

[30] During the course of the hearing on 30 January 2018 the Appellant led evidence from Dr Craig White, a consultant occupational physician, in respect of Mr Hyde's capacity to undertake the inherent requirements of the role of Custodial Officer. Dr White reviewed Mr Hyde on 10 November 2017 and his report is dated 12 November 2017.[16] Dr White provided a supplementary report on 20 January 2018.

[31] In the proceedings at first instance Mr Hyde claimed his dismissal was unfair because he was still able to perform the inherent requirements of his job as a Custodial Officer. Relying on CSL Limited t/as CSL Behring v Chris Papaioannou[17]('CSL') Mr Hyde submitted that in deciding whether, at the time of his dismissal, he had the requisite capacity to perform the inherent requirements of his role the Commissioner should have had regard to all of the relevant medical evidence before the Commission, in particular:

Dr Mukundala's medical certificate of 24 November 2016;

Mr Afilaka's report of 15 February 2017;

Dr Mukundala's report of 1 May 2017; and

• Dr White's reports of 12 November 2017 and 20 January 2017.[18]

[32] Serco denied that the termination of Mr Hyde's employment was unfair and submitted that the application should be dismissed. In particular, Serco submitted that Mr Hyde's dismissal was:

for a valid reason related to Mr Hyde's capacity to perform the inherent requirements of his role as a Custodial Officer at Acacia Prison;

effected in circumstances where Mr Hyde was provided with procedural fairness in that he was given an opportunity to respond to the reasons for dismissal relating to his medical incapacity; and

a measured response with respect to the inherent requirements of his role and the medical evidence before Serco at the time of termination of employment.

[33] Serco submitted that the facts and circumstances of this matter can be distinguished from the facts and circumstances in CSL. In CSL there was, prior to the decision to terminate Mr Papaioannou, a material difference of opinion between Dr Bloom, an occupational physician and Dr Congiu, Mr Papaioannou's treating psychiatrist. Serco submitted that there was no 'apparent conflict' in the medical opinions before Serco at the time of Mr Hyde's dismissal:

[86]

[50] These grounds are directed to the Commissioner's decision to not have regard to Dr White's evidence for the purpose of determining whether there was a valid reason for Mr Hyde's dismissal. The reason given for the Commissioner's determination in this regard was that 'Dr White's medical opinion was not a fact that existed at the time of the dismissal'.

[51] The Appellant submits that the Commissioner erred in failing to give any weight to, or consider the evidence from Dr White and submits that the fact that Dr White's medical opinion did not exist at the time of dismissal is not determinative (citing Dundovich v P&O Ports).[33]

[52] The Appellant contends that the Commissioner was obliged to consider the evidence and opinion of Dr White to the extent that his opinion provided confirmation or was evidence of the facts and circumstances that existed at the time of the dismissal and, by considering only the evidence that was available to the Respondent at the time of the dismissal, the Commission committed an error of law and continued to adopt the approach set out in Lion Dairy and Drinks Milk Limited v Peter Norman (Lion Dairy).[34]

[53] The second ground of appeal contends the Commission erred in fact and in law by failing to have regard to the relevant considerations provided in the evidence of Dr White.

[54] The Appellant submits that s.387(a) requires the Commission to determine, on balance of probabilities, whether there was a valid reason for dismissal and to make such a determination by reference to the evidence before it (citing Yew v ACI Glass Packaging Pty Ltd;[35] CSL Limited t/a CSL Behring v Chris Papaioannou (CSL)).[36]

[55] The Appellant submits that evidence obtained after a dismissal is relevant to a determination under s.387(a) of the Act, provided that the evidence concerns circumstances in existence when the decision to terminate was made (citing Australia Meat Holdings Pty Ltd v McLauchlan[37] and Dundovich at [75]).

[56] The Appellant submits that the Commissioner found the following circumstances and facts to be in existence at the time of the dismissal:

[101]

[63] The Full Bench expressly rejected the approach in Lion Dairy - noting that 'there is no basis to leave the resolution of any conflict in medical opinion to the employer'[40] - and adopted the approach taken in Jetstar Airways Pty Limited v Monique Neeteson-Lamkes (Jetstar).[41]

[64] As noted in Jetstar, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal.[42] Applying this principle to the matter before us, Dr White's evidence was correctly excluded from the assessment of whether there was a valid reason for Mr Hyde's dismissal because it was clearly founded upon a factual situation which came into existence well after the date of Mr Hyde's dismissal. Dr White examined Mr Hyde on 10 November 2017, some two months after his dismissal, and his evidence concerned Mr Hyde's capacity as at 10 November 2017; not his capacity as at the date of his dismissal. The validity of that part of Serco's reason for dismissal which concerned Mr Hyde's future capacity to perform his duties must be assessed by reference to his state of health, and the expert opinions expressed as to his state of health, as they were at the time of his dismissal.

[65] Dr White's evidence did not address the Appellant's capacity at the time of dismissal and on that basis was not relevant to the determination of valid reason.

[66] Our conclusion is consistent with the approach taken in Jetstar, in which the Full Bench excluded expert medical evidence which was based on an assessment of the Respondent's health some three to four months after her dismissal. We reject the Appellant's submission that Jetstar was distinguishable on the basis that it concerned psychological injury as opposed to the present matter which concerns physical capacity. In our view the principle remains the same - the relevant evidence must be directed at the applicant's state of health at the time of dismissal.

[67] We wish to make it clear that this does not mean that expert medical evidence obtained after dismissal is automatically excluded. Such evidence will be relevant to the question of whether there is a valid reason for dismissal provided it is directed at the appellant's state of health at the time of dismissal. For example, in circumstances where an applicant's state of health is stable, a medical expert may express an opinion about the applicant's state of health at the time of their dismissal, which may have occurred some time before they were assessed by the expert. The probative value of such evidence will depend, in part, on the nature of the applicant's condition and the time between dismissal and assessment.

[68] It follows that we reject the Commissioner's reasons for excluding Dr White's evidence - that it was not a fact in existence at the time of dismissal.

[69] We also reject the Commissioner's observation that such an approach is inconsistent with the provision of a 'fair go all round'. The expression 'a fair go all round' is a reference to the object of Part 3-2 Unfair Dismissal, of the Act. Section 381 sets out that object, in the following terms:

[155]

[103] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission 'may inform itself in relation to any matter before it in such manner as it considers appropriate'. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that 'is fair and just'. As the 'rule' in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.

[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case.[76] A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.

[105] The impact on the fact finding process of an unexplained failure by a party to call or tender apparently relevant evidence within that party's control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of commonsense and fairness. Absent an error of principle, a breach of the rule in Jones v Dunkel will only give rise to error on the part of a member at first instance if the member acted unreasonably in drawing or failing to draw the relevant inference resulting in factual findings that are manifestly unfair.

[106] The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's 'camp'.

[107] This requirement is also described as existing where it would be natural for one party to produce the witness or the witness would be expected to be available to one party rather than the other.[77] The witness in this case, Dr Mukundala, was equally available to both parties and in such circumstances the condition is not satisfied.

[108] The Appellant submits (at [55]) that Dr Mukundala should be regarded as a natural or expected witness of the Respondent because:

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Judgment (223 paragraphs)

Mr Richard Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 (2 August 2018)

Parties

Legislation Cited (1)

Cases Cited (16)