Richard Hyde v Serco Australia Pty Limited [2018] FWC 2465

Richard Hyde v Serco Australia Pty Limited [2018] FWC 2465 | Case summary | Zoe

[5] At the hearing evidence for the Applicant was given by Mr Hyde and Dr Craig White (Dr White) who is a Consultant Occupational Physician.

[6] Statements were also admitted into evidence from Mr Graham Carlson (Mr Carlson) who is employed by Serco as the Principal Officer at Casuarina Prison and Mr Paul Parsons (Mr Parsons) who is employed by Serco as a Prison Officer at the Eastern Goldfields Prison. Neither witness was cross examined.

[7] Evidence for the Respondent was given by Mr William Newell (Mr Newell) who is employed by Serco as the Health, Safety and Well-being Manager at Acacia Prison and Mr Ian Southerton (Mr Southerton) who is the People and Culture Manager - Assistant Director Human Resources for Serco.

[8] The evidence is that Mr Hyde commenced employment with Serco in about September 2009 as a Custodial Officer. From 2013 he at times also delivered training programs that covered various aspects of the Custodial Officer positon.

[9] One of those programs was the Defensive Equipment Tactical Training (DETT). The DETT course includes training in the use of physical restraints and various other force options and techniques for dealing with prisoners as well as riot training, breathing apparatus training, fire-fighting techniques and prisoner escort methods.

[10] The DETT is a specific testing and training course that Serco requires every Custodial Officer to complete each year.

[11] In May 2015 Mr Hyde suffered an injury to his left knee during the delivery of a DETT course for new recruits.

[12] During the training a trainee tackled him from the side and the medial ligament of his left knee was ruptured. The tackle caused the medial ligament of his knee to be torn from the bone.

[13] Mr Hyde returned to work within approximately two weeks of the injury and resumed the full duties of his role within about three months of the injury.

[14] At the time he injured his left knee he had diagnosed osteoarthritis in his right ankle. After he injured his left knee, he experienced increased pain and stiffness in his right ankle.

[15] His right ankle condition continued to worsen and he consulted an Orthopaedic Surgeon, Dr Mukundala in March 2016.

[16] In May 2016, Mr Hyde approached Ms Alex Argiropulos (Ms Argiropulos), Serco's Return to Work Coordinator, to discuss his ankle fusion operation he was to undergo in June 2016.

[17] Mr Hyde made a request for restricted duties in the "movements" unit. The movements unit is an area where Officers direct prisoner movements within the prison via video. Whilst an Officer is working in movements, they do not have prisoner contact and perform mostly administrative duties. Custodial Officers are rotated into the movements unit as part of their overall duties.

[18] Serco temporarily placed Mr Hyde into the movements unit on an exclusive basis as a result of his non-work related condition; however, there is no capacity within the prison for a Custodial Officer to permanently work in the movements unit.

[19] After receiving advice from Dr Mukundala he had surgery to fuse his right ankle in June 2016.

[20] For many months leading up to his consultation with Dr Mukundala and the surgery, Mr Hyde says he continued to perform his role as Custodial Officer with his injured ankle and he was able to respond to code red situations during 2016 even though his ankle was stiff and painful.

[21] He returned to work on 17 August 2016 and was assigned to work restricted duties in the movements unit. He performed many of the usual duties as Custodial Officer, but performed a greater proportion of administrative duties and did not have any prisoner contact nor perform any training.

[22] 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.

[23] On 18 November 2016 Ms Argiropulos wrote to Dr Mukundala by email with Mr Hyde's consent seeking further information in relation to Mr Hyde's fitness for work. That email, which was copied to Mr Hyde, asked Dr Mukundala to examine Mr Hyde's ankle and to comment on four particular questions which concerned his suitability for performing his pre-injury duties, specifically defensive movements.

[24] Mr Hyde had his last post-surgery follow-up appointment with Dr Mukundala on 23 November 2016 and he asked Dr Mukundala if he would provide a medical certificate so that he could resume all of the duties of my role.

[25] On 24 November 2016 Serco received a medical certificate dated the same day issued by Dr Mukundala which simply stated,

[26] Ms Argiropulos met with Mr Hyde the same day and discussed whether Dr Mukundala had been provided with the questions Serco had asked to be answered regarding his fitness to perform the inherent requirements of his position as a Prison Officer. There was some discussion about Dr Mukundala requesting to be paid for a report on the questions being asked by Serco. By email the next day Mr Hyde was advised that Serco would follow this up with Dr Mukundala and they will get back to Mr Hyde in January 2017 after he had returned from a months' annual leave.[1]

[27] Serco were concerned that Dr Mukundala had not answered the specific questions they had asked. Mr Hyde acknowledges that it may be the case that Dr Mukundala did not have the benefit of Ms Argiropulos email when he wrote the 24 November 2016 medical certificate.[2]

[28] In early February 2017, Serco issued a defence and control training "Physical Readiness Form" in advance of the annual defence and control or DETT refresher training. The purpose of the Physical Readiness Form is to understand an individual's physical readiness to complete the mandatory refresher training.

[29] Mr Hyde completed the form on 3 February 2017.

[30] Part A and B of the form asks 11 questions regarding whether the Officer can do various tasks concerning walking, jogging, working in confined spaces, crouching and kneeling, lifting, dragging, running, climbing ladders and using a respirator. Mr Hyde answered yes to all questions except question 9 which asked whether he could run for 1 km, to which he answered "No".

[31] Separately in Part C of the form Mr Hyde had answered "Yes" to question 9 which asked whether he had "Arthritis/gout/stiff joints/joint injuries" and to questions 12, 13 and 14 which asked whether he had injuries to "shoulders/elbows/wrist or hand" or to "hip/knee/ankle or foot" or had "fractures or broken bones".

[32] He answered "No" to question 17 which asked whether he had a condition, disability or impairment that Serco should be aware of that may affect his ability to safely perform the assigned training.

[33] He answered "Yes" to question 18 which asked whether he believed he was physically fit to undertake all the assigned training duties.

[34] In Part D of the form Mr Hyde answered "Yes " to the question of whether he was on restricted work arrangements but did not answer the balance of the question which asked what those restrictions were.

[35] Mr Southerton's evidence was that because the defence and control refresher training must be completed as part of Mr Hyde's position, Serco elected to request a full medical report from Mr Hyde's treating practitioner to understand his ability to complete the defence and control training and perform the duties required as part of his position.

[36] In February 2017 Mr Hyde approached 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 my role.

[37] Dr Afilaka had been his treating doctor for approximately seven years

[38] Mr Newell on about 3 February 2017 gave Mr Hyde a bundle of documents which Mr Hyde was to provide to Mr Afilaka for the purpose of his assessment.

[39] The bundle of documents were,

A Position Description for Case Management Officer;

A Position Description that relates to "Defence and Control" strategies that are part of his role;

A 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 his role.

[40] Mr Hyde consulted Dr Afilaka on 4 February 2017 and Mr Hyde provided the doctor with all the documents given to him by Mr Newell.

[41] Dr Afilaka provided a medical certificate dated 15 February 2017 which was provided to Ms Argiropulos on about 16 February 2017.

[42] That certificate[3] states,

[52] Whilst there was some debate amongst witnesses about how often some of these particular job demands arise there is no dispute that the documentation from Serco details the inherent requirements of Mr Hyde's pre-injury position.

[53] Mr Hyde himself gave some evidence about these matters.[6]

[54] His evidence was that the general prison environment allows prisoners to move over large areas unrestricted and the prisoners may tend to act on impulse in an unpredictable way and they will take advantage of any opportunity that they can make use of. He agreed that he may find himself in this environment either on his own or with someone else and he may need to apply the control and defence techniques and so may be exposed to danger. His opinion was that recognising this he believed he could do the job and his ankle would be fine.

[55] He agrees that the control and defence techniques are very much about maintaining balance and stability and his ankle is fundamental to balance and stability. He agrees that when he braces himself for balance and stability being able to flex his ankle is quite important for that.

[56] He agreed that the techniques that he is trained in are all about control, sudden lunges and sudden acceleration to achieve a particular aim with a prisoner. And he agreed that to get that propulsion to achieve the sudden forward lunge would involve some flexibility around the ankle.

[57] Mr Hyde also agreed that a part of the control and defence techniques is the controlled bringing down of a prisoner to the ground. He agreed that if he was trying to bring a prisoner down to the ground he may be taking the prisoners weight onto himself and that this weight would also be felt on the ankle and he agreed that being able to flex the ankle would be a large part of the taking down of the prisoner.

[58] It was put to Mr Hyde that if he found himself on the ground getting up from the ground in a dangerous situation with his fused ankle would have its own problems and his answer was that he did not have an issue with it and he has quite a lot of movability in his ankle. He agreed however that his treating Orthopaedic Surgeon has a different view.

[59] Mr Hyde agreed[7] if he was reinstated to his pre-injury position he will invariably need to at times apply the control and defence techniques and he understands Serco is concerned about the risks to him in that situation but he feels he can do the job and that anybody who works there whether or not they've had an ankle fusion are subjected to the same risks.

[60] He agrees that in the work environment Prison Officers very much rely on other employees and to a point it is almost be life-and-death that people you work with do their jobs properly.

[61] With respect to running as a requirement of the position, the documentation above which details the inherent requirements does expressly include being able to run 50 m in short bursts and to run for short periods.[8]

[62] Evidence was given by a number of witnesses regarding what is required in an emergency situation which is known as a "code red".

[63] Mr Carlson's evidence was that the most common types of code red situations were associated with either staff or prisoner assaults or medical emergencies. In such circumstances the areas closest to where the alarms have been raised would dispatch staff immediately on foot. His evidence is there is no expectation that Officers would run in response to a code red. Similar evidence was given by Mr Parsons that Officers are not required to run in response to a code red but should move with haste.

[64] Mr Hyde's evidence was that it is not Serco's policy that Officers run at any specific pace in response to an emergency and it is emphasised that Officers should be mindful of hazards and move at a comfortable pace. In Mr Hyde's evidence he included an excerpt from Serco's Occupational Health & Safety policy manual printed on 3 June 2007.[9] Whilst I note this includes various statements about being cautious in responding to a code red it also says,

[70] The letter invited Mr Hyde to provide any comments in response in writing within 10 days.

[71] Mr Hyde was placed on a period of paid leave by Serco.[12]

[72] On behalf of Mr Hyde his union approached Serco and requested that the timeframe for his response to the Show Cause Letter be extended. Mr Hyde during this period had the assistance of his union in formulating his response to the Show Cause Letter.

[73] On 20 June 2017 Ms van der Merwe from Mr Hyde's union wrote to Serco on Mr Hyde's behalf and raised the issue of Mr Hyde getting a second medical opinion.

[74] Serco was agreeable to this happening and allowed more time for this to occur.

[75] However Mr Hyde, assisted by his union, decided not to get a second medical report.[13]

[76] Ultimately Mr Hyde did not obtain a second medical opinion for Serco to consider prior to Serco making the decision to dismiss him.

[77] Mr Hyde did provide a written response to the Show Cause Letter on 30 June 2017 and the union assisted him with this.[14]

[78] Mr Hyde's four-page response to the Show Cause Letter[15] explained in detail the history of the matter. Mr Hyde complained that he had earlier received clearances to return to work from both Dr Mukundala and Dr Afilika. He states he believes Dr Mukundala does not have a complete understanding of the practical nature of his role which has led to his incorrect conclusion that he is unable to perform the inherent requirements of the job. Mr Hyde complains that his answers filled out honestly on the Physical Readiness Form for the DETT have been used against him and do not suggest that he is unable to safely complete the DETT refresher. Mr Hyde complains that he did not have an opportunity to discuss with Dr Mukundala his account of the duties he is required to undertake. Mr Hyde disputes Dr Mukundala's findings largely based on a belief that Dr Mukundala failed to understand truly the requirements of the position. Mr Hyde stated he is more than capable of performing the full range of duties required and requested an opportunity to participate in the DETT refresher which would provide a fair indication of his fitness to continue as a Prison Officer. Mr Hyde points to his past commitment to his role and his successful achievements. Mr Hyde states he sincerely wishes to return to his work and continue on with his career with Serco.

[79] Mr Hyde agrees that he had an adequate opportunity to respond to the Show Cause Letter and had the support of the union to do so. The union also represented him at the final termination meeting.[16]

[80] Mr Hyde agrees that it made sense that Serco would rely on Dr Mukundala's medical Report given he was his treating Orthopaedic Surgeon however he does not agree that the Report was in clear terms.[17]

[81] Serco then met with Mr Hyde and his union representative on 11 September 2017 and he was advised that his employment was being terminated as of that date. The letter of termination was read out to Mr Hyde at his request.

[82] Serco paid to Mr Hyde five weeks' pay in lieu of notice.

[83] On 2 October 2017 Mr Hyde's legal representatives filed this application with the Commission.

[84] On 1 November 2017 Mr Hyde's legal representatives wrote to Dr White a Consultant Occupational Physician advising him of Mr Hyde's circumstances and seeking a report from him as to Mr Hyde's fitness for work.

[85] Dr White reviewed Mr Hyde in person on 10 November 2017.

[86] Dr White provided a report to Mr Hyde's legal advisers dated 12 November 2017 wherein he detailed his opinion that Mr Hyde is able to perform his pre-injury duties, he is able to perform defensive movements and have prisoner contact, there are no work restrictions necessary and Mr Hyde is able to perform the DETT component of his role.

[87] The Applicant's legal representatives did not file a witness statement from Dr White.

[88] Dr White's 12 November 2017 report[18] was accepted as evidence as well as a supplementary report dated 20 January 2018[19] wherein Dr White states that he saw no medical reasons why Mr Hyde would not be able to perform defensive techniques displayed in a video of persons performing defensive techniques in a training environment. The Respondent did not object to the reports being tendered into evidence however challenges their relevance and validity.

[115] The Applicant submits that the Full Bench decision in CSL Limited[27] says that the test in this case is for the Commission to determine whether at the time of the dismissal Mr Hyde suffered from the alleged incapacity, with such findings based on the evidence before the Commission at the hearing.[28]

[116] The Applicant submits that part of that evidence the Commission should have regard for, based on CSL Limited, is the evidence of Dr White, including his reports dated 12 November 2017 and 20 January 2018.

[117] From that point onwards the Applicant's submissions broadly follow the respective principles in Lion Dairy.[29]

[118] The Respondent submits however CSL Limited is distinguishable from this matter but thereafter also broadly follow the Lion Dairy principles.

[119] The Respondent submits the CSL Limited decision refers to the perceived "tension" between the majority decision in Lion Dairy and Jetstar and [36] to [37] of CSL Limited explain the nature of the perceived "tension".

[120] The Respondent submits that in the circumstances of an unfair dismissal application relating to the dismissed employee's capacity, the apparent "tension" between Lion Dairy and Jetstar refers to circumstances where there is some conflict in the medical opinions upon which the decision to dismiss is made.

[121] The Respondent submits that Lion Dairy says it would "[u]sually be incumbent on the employer to resolve that conflict" but Jetstar says that in the circumstances of any apparent conflict in medical opinions, the Commission is required to consider and make findings as to whether at the time of the dismissal, the Applicant suffered from the alleged incapacity based upon relevant medical and other evidence before the Commission.

[122] The Respondent submits the facts and circumstances of this matter can be distinguished from the facts and circumstances in CSL Limited.

[123] In the CSL Limited, there was, prior to the implementation of the termination of Mr Papaioannou's, a material difference of opinion between,

[130] Considering the parties' submissions on the implications of the Full Bench decision in CSL Limited I agree with the Respondent that the Full Bench in CSL Limited was dealing with situations where there were conflicts in the medical opinions known to the employer at the time the decision to dismiss was made. This indeed was the case in both Lion Dairy and the first instance decision the subject of appeal in CSL Limited. However I do not agree that the Full Bench decision in CSL Limited is only applicable to unfair dismissal remedy applications where there is conflicting medical opinion. The decision in my view has general application to cases where a dismissal is related to the person's capacity.

[131] The Full Bench in CSL Limited rejected the particular part of the Lion Dairy approach which had previously held that the resolution of any conflict in medical opinion was to be left to the employer and instead reinforced the requirement of section 387 (a) of the Act in capacity cases for the Commission to consider and make findings as to whether at the time of the dismissal the employee suffered from the alleged incapacity.

[132] I do not however accept the Applicant's submission that the Full Bench's reference in CSL Limited at [77] to the Commission's findings as to alleged incapacity at the time of dismissal being based on the "...relevant medical and other evidence before the Commission" is authority for the proposition that the Commission must have regard for a new medical opinion an applicant obtains after dismissal which an applicant then argues demonstrates a conflict in medical opinion which the Commission must resolve.

[133] In this matter at the time the decision to dismiss was made the opinion of Dr White had not created any conflict with the medical opinions available to be considered by Serco because Dr White's opinion did not at that point in time exist.

[134] The evidence is no approach was made to Dr White for a medical opinion until after Mr Hyde had been dismissed and in fact he was only approached after this application had been made to the Commission.

[135] In this case when determining whether there was a valid reason for dismissal the Commission should not have regard for Dr White's evidence and his reports which were not in existence at the time the decision to dismiss Mr Hyde was made.

[136] Dr White's medical opinion was not a fact that existed at the time of the dismissal. In this case the medical opinion and evidence of Dr White is not relevant to the determination of whether or not there was a valid reason for Mr Hyde's dismissal.

[137] Section 394, under which this application is made, is found within Part 3-2 of the Act and section 381 sets out the Objects of Part 3-2. These Objects include, at (2), that the procedures and remedies and the manner of deciding on and working out such remedies are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[138] In my view it would also not be consistent with providing a "fair go all round" to allow a medical opinion that did not even exist at the time an employer made a decision to dismiss to be used to challenge the validity of the reasons for that decision.

[139] I do accept though that should I decide the dismissal was unfair that Dr White's evidence may be relevant when considering remedy.

[140] The medical opinions available at the time of the decision to dismiss which the Commission should have regard for are the medical certificate of Dr Mukundala dated 24 November 2016, Dr Afilaka's report dated 15 February 2017 and Dr Mukundala's Report dated 1 May 2017.

[141] The medical certificate of Dr Mukundala dated 24 November 2016 certifies Mr Hyde "...is fit to work (full duties)" That medical certificate was issued in response to an email request to Dr Mukundala which asked him to examine Mr Hyde's ankle and included attached documentation which specified the physical requirements of Mr Hyde's job and asked Dr Mukundala to comment on four questions with regard to Mr Hyde's suitability to perform his pre-injury duties, specifically defensive movements and the ability to have prisoner contact, any side-effects from treatment/medication that may impact his ability to perform his duties, any current work restrictions to safely accommodate his ankle injury and any other information Serco should be aware of regarding his ankle.[31]

[142] Self-Evidently Dr Mukundala did not respond to the questions Serco asked him or provide any detail for his opinion.

[143] Given that Dr Mukundala did provide a detailed response to these same questions at a later date in his 1 May 2017 Report, I take the medical opinion expressed in this later Report as superseding Dr Mukundala's 24 November 2016 medical certificate.

[144] Dr Afilaka's report dated 15 February 2017 stated that Mr Hyde will be fit to continue his usual occupation as detailed in his position description as a Case Management Officer and he will be able to go through the defence and control training and defence and control in field.

[145] Dr Afilaka was Mr Hyde's general practitioner whereas Dr Mukundala was the Orthopaedic Surgeon who had seen Mr Hyde and recommended the particular operation on his ankle and had operated on Mr Hyde's ankle. I accept therefore in this matter the opinion of Dr Mukundala is to be preferred over the opinion of Dr Afilaka.

[146] I accept that the Report, an expert medical opinion of Dr Mukundala dated 1 May 2017, is the relevant medical opinion the Commission should have regard for when determining whether Mr Hyde had the capacity to perform the full duties of his job.

[147] Mr Hyde himself agreed it made sense to have the opinion of Dr Mukundala rather than going to another independent doctor or surgeon or consultant because Dr Mukundala new all about his ankle.[32]

[148] Mr Hyde was aware in March 2017 of the questions Serco was asking Dr Mukundala to respond to and that the questions were essentially the same as those which were originally asked of Dr Mukundala on 18 November 2016. In fact Mr Hyde was copied into the email dated 13 March 2017 from Mr Lahad to Dr Mukundala requesting his opinion and answers to five particular questions.[33]

[149] At the time the expert medical opinion of Dr Mukundala was sought in early 2017 Mr Hyde had no objections to this occurring nor did he object to the information included in the email request dated 13 March 2017.

[150] The Applicant submits however the Commission should appreciate that Dr Mukundala's Report dated 1 May 2017 was based on Dr Mukundala's examination of Mr Hyde which had been conducted back on 23 November 2016. Separately the Applicant submits that the instructions from Mr Lahad to Dr Mukundala also included statements which were incorrect specifically,

[151] Mr Hyde's evidence is that some of this was not correct. Mr Hyde however did not contact Dr Mukundala about this.[35]

[152] Mr Hyde's evidence is that as at November 2016 he was only able to run on his injured ankle for relatively short distances of much less than 1 km but by April 2017 he was able to tolerate running for longer distances of approximately 1 km.[36]

[153] The evidence also was that, five weeks prior to Serco emailing Dr Mukundala, on 3 February 2017, Mr Hyde had completed the Physical Readiness Form for the DETT and in doing so stated to Serco that he could not run 1 km.

[154] The Applicant submits the 1 May 2017 Report of Dr Mukundala was tainted, unreliable or flawed and could not be relied upon as evidence of Mr Hyde's capacity at the date of termination.

[155] The Applicant submits that this Report should not be accepted as evidence of Mr Hyde's lack of capacity to do the job because of,

the incorrect instruction from Mr Lahad in the email to the effect that Mr Hyde was unable to run and could not respond with defensive movements,

the fact Dr Mukundala last examined Mr Hyde in November 2016,

the absence of a physical capacity assessment being performed,

the failure to consider Mr Lahad's instruction that Mr Hyde's range of movement in the ankle had increased.

[156] A number of points can be made about these criticisms of Dr Mukundala's medical opinion.

[157] In answer to the first question asked of him Dr Mukundala's conclusion that Mr Hyde "...would never be fit to perform his pre-injury duties at 100% level" follows statements by Dr Mukundala that he is confident Mr Hyde has recovered from the surgery, that his right ankle joint has fused and that the movements of this joint level are completely abolished, followed by the observation that Mr Hyde would therefore depend more on the flexibility of other joints than the ankle joint that has been fused. It is not apparent that Dr Mukundala's opinion that Mr Hyde would never be fit to perform his pre-injury duties at 100% level was infected by Mr Lahad's emailed statement that Mr Hyde was unable to run or respond with defensive movements. The assertion that it was is mere speculation by the Applicant's representatives.

[158] Further on in his answer to the first question Dr Mukundala states that Mr Hyde "[i]n a case of emergency, he would definitely need aide from his colleagues as he would be unable to sprint/run on this fused ankle joint" and then states that one has to remember the gait on this fused joint is not normal and the downside of surgery is a loss of movement at the ankle joint level. Again it is not apparent that Dr Mukundala's opinion has been infected by Mr Lahad's incorrect statement that Mr Hyde was unable to run. Dr Mukundala did not refer to Mr Lahad's instruction that Mr Hyde "...is unable to run..." or use this wording, rather Dr Mukundala expresses his opinion that Mr Hyde "...would be unable to sprint/run..." and his explanation as to why this is the case is based on the state of Mr Hyde's ankle following the surgery.

[159] I do accept that Dr Mukundala's opinion that Mr Hyde would be unable to run is, on the evidence before the Commission at hearing, not correct. The evidence of Mr Hyde which I accept is that by April 2017 he was able to tolerate running for distances of approximately 1 km.

[160] Dr Mukundala in his opinion however in answer to question one refers to Mr Hyde being unable to "sprint/run" rather than only run and this opinion was expressed in the context of "...a case of emergency...". Further in the paragraph immediately before question one Dr Mukundala says that Mr Hyde would find "...that whenever there is any need for running or sprinting, he would find it very difficult as the ankle joint is completely fused."

[161] I think it is reasonable to understand Dr Mukundala's opinion as recognising that sprinting and running are different.

[162] The concise Macquarie dictionary defines "Sprint" as follows,

to race at full speed, especially for a short distance, as in running, rowing, etc

to cover by sprinting: to sprint a hundred metres

a short race at full speed.

[163] Sprinting therefore means running at full speed for a short distance.

[164] I note that the Summary of Job Demands for a Case Management Officer includes "...running 50 m in short bursts...".[37]

[165] The evidence is that Mr Hyde was able to run for a distance of 1 km but there is no evidence that he was able to sprint, meaning to run at full speed for a short distance. Consequently Dr Mukundala's opinion that Mr Hyde would be unable, or find it very difficult, to sprint in a case of emergency stands.

[166] Secondly whilst it is correct Dr Mukundala last examined Mr Hyde in November 2016 there is nothing in the evidence that proves the state of Mr Hyde's ankle had changed since he was examined at this time. Mr Hyde's evidence as to what had changed was limited to the fact that since 2016 he has become able to tolerate running for longer distances. The absence of an examination of Mr Hyde by Dr Mukundala in May 2017 is not a sufficient reason to reject Dr Mukundala's opinion.

[167] Separately Dr Mukundala was not asked to put Mr Hyde through a physical capacity assessment and did not do so. There is no reason to conclude Dr Mukundala was unable to reach a proper medical opinion based on his previous examination of Mr Hyde and his knowledge of the state of Mr Hyde's ankle.

[168] The argument that Dr Mukundala gave no consideration to Mr Lahad's statement in the email that Mr Hyde's range of movement in the ankle had increased is also a mere assertion. There is nothing in Dr Mukundala's medical opinion that allows the Commission to know whether Dr Mukundala was or was not influenced by this statement of Mr Lahad.

[169] Consequently I accept that the Commission should have regard for Dr Mukundala's medical opinion in the Report dated 1 May 2017.

[170] In the Report question one asked about Mr Hyde's suitability to perform his pre-injury duties, specifically defensive movements and his ability to have prisoner contact. In response Dr Mukundala concludes that Mr Hyde would never be fit to perform his pre-injury duties at 100% level. His opinion was also that in case of emergency Mr Hyde would definitely need aide from his colleagues as he would be unable to sprint/run on his fused ankle joint. He suggested there would be a need to compromise Mr Hyde's pre-injury duties and he highly recommended Mr Hyde having a supernumerary around to respond to any emergency or defensive movements whenever they are needed.

[171] In conclusion I am satisfied that the medical opinion of Dr Mukundala dated 1 May 2017 demonstrates that at the time of dismissal Mr Hyde could not perform the inherent requirements of his job.

[172] In answer to the question of any current work restrictions Serco would need to be aware of to safely accommodate Mr Hyde's ankle injury Dr Mukundala repeated that Mr Hyde would need help from his colleagues in the case of emergency situations where sprinting/running and defensive movements are involved.

[173] Mr Hyde agrees that if he was reinstated to his job he would invariably on occasions be required to apply control and defence techniques. He agreed there would be the opportunity for a prisoner to seize upon him when he is on his own. In such a circumstance he agreed he would apply his training and be expected to apply the control and defence techniques, whether for a few moments or for a longer period of time. Mr Hyde agreed that he could very well be doing this on his own as part of his normal duties and it is not a feature of his position that there is a supernumerary with him all the time.[38]

[174] The work restrictions Dr Mukundala identified, to have aide from a colleague in the case of an emergency situation where sprinting/running and defensive movements are involved, is not a reasonable adjustment to Mr Hyde's job in order to accommodate his incapacity. It would not be a reasonable adjustment to require Serco to ensure Mr Hyde had a supernumerary around whenever needed.

[175] Serco initially proposed that a medical opinion as to whether or not Mr Hyde was fit to resume full duties be obtained from an independent medical expert. Mr Hyde agreed to this, but Serco shortly thereafter agreed to have Mr Hyde's own treating Orthopaedic Surgeon Dr Mukundala provide that Report.[39] Further having been provided with a copy of this Report and the Show Cause Letter Mr Hyde, through his union representative, requested Serco allow him more time in order to obtain an alternate medical report. Serco agreed to this and extended the time period for Mr Hyde to respond to the Show Cause Letter. However Mr Hyde, having consulted with his union, decided not to seek an alternate medical report.

[176] It was entirely reasonable for Serco to then rely upon Dr Mukundala's Report when Mr Hyde had been given the opportunity to challenge this Report by obtaining an alternate medical opinion but chose not to do so.

[177] Based on Dr Mukundala's Report of 1 May 2017 I find that Mr Hyde was not able to perform the inherent requirements of his job at the time of his dismissal. This posed a risk to the safety and welfare of other employees and to Mr Hyde himself had he returned to work as a Custodial Officer. Mr Hyde's inability to perform the inherent requirements of his job was a valid reason for his dismissal.

At a glance

Court

Decision date

Source

Judgment (155 paragraphs)

Richard Hyde v Serco Australia Pty Limited [2018] FWC 2465 (8 May 2018)

Parties

Legislation Cited (1)