THE EVIDENCE
38Mr Hickey confirmed that Dr McGroder had performed a physical examination of him and that part of that examination involved resisted movement of the shoulder. He agreed that he experienced shoulder pain with any movement that was greater than 40 degrees away from the body, particularly on abduction and forward elevation. He also agreed that he had admitted to Dr McGroder that he would have difficulty performing some of the duties of a picker packer.
39Mr Hickey acknowledged that there was no on-going limited tenure work. He stated, in cross-examination, that he accepted the limited tenure work to help the Respondent out because he was capable of performing the duties and tasks associated with such work. He said he did not take that work for the money as it involved a drop in pay. He stated that such work was also disadvantageous to him as it locked him into a 5-day week and he could not pick and choose which days of the week he preferred to work. He conceded that he did not have to accept those offers and would not have applied for them if there was nothing to be gained by him.
40He was receiving $29.6446 gross per hour for a 29 hour week as a casual as at December 2006. Whilst on the limited tenure contracts he was paid $23.795 gross per hour for a 38 hour week plus any applicable shift allowances. He recollected that his take home pay was on par between the two positions. He believed that he gained recognition for his reliability and loyalty whilst engaged on those contracts, "just basically kudos".
41During re-examination, Mr Hickey said he had applied for the limited tenure positions because one or two of the line managers had suggested to him to do that because he would be suitable for the roles. He recalled that one of those line managers was Ms Sophia Rouse from the Smeaton Grange facility and the other was Kim (?) who suggested that the business was looking for reliable, experienced team members to take up these limited tenure positions.
42Mr Hickey denied that he had only made two calls to Ms Sylvia Rowe. He agreed that in the first call he had inquired as to how he could go about getting his job back with Coles. He said he was told he had to make a written application. He disagreed that the second call related to how he could get in touch with Ms Sharon Kennedy.
43In relation to the aggravation of the previous injury which occurred on 11 December 2009 whilst employed at Harvey Norman, he agreed that he had consulted Dr Law who referred him to Macarthur Diagnostic Imaging for an x-ray and ultrasound of his right shoulder.
44It was submitted on behalf of the Respondent that one of the fundamental parts of its case is that to accede to this application would obligate the Respondent to employ the Applicant on a basis which no other employee is employed, that is, on a non-rotational basis. The crux of the case is that the Applicant would not be able to rotate through all the tasks, primarily the picking and packing tasks, and that cannot be acceded to. Sharon Kennedy, NSW Injury Management Manager for the Supply Chain since her return from maternity leave in February 2008, gave evidence that it was her responsibility to manage those issues and she had the expertise to give evidence as to how that can or cannot be done. She had worked for the Respondent as a buyer for 10 years between 1990 and 2000 and part of her role was inventory so she had a very good idea of what was on the floor in relation to weights and measures. Thereafter, she was Human Resources Officer at the Smeaton Grange DC between 2001 and mid 2004.
45Ms Kennedy explained that during peak periods such as Easter and Christmas, the Respondent advertises offers of limited tenure contracts. Limited tenure contracts can run on any shift, albeit limited tenure contracts for night shifts are only offered during peak periods such as between mid November to January of the following year. The night shift is the only non-picking shift.
If the limited tenure contract is for night shift, it is initially offered to fulltime employees on day or afternoon shifts prior to the offer being made to casuals.
Casuals who go on limited tenure contracts become full-time for the period of that contract and are guaranteed 38 hours work per week. Those on night shift receive a 25 per cent loading, sick leave and annual leave entitlements which are paid at the end of the contract.
46Ms Kennedy noted that Mr Hickey was engaged on four limited tenure night shift contracts - one of them being from 30 April to June 2007 and the other from 23 July 2007 to September 2007. She contended that both of those were anomalies. The limited tenure contract undertaken by Mr Hickey at Easter time occurred while she was absent on maternity leave. She did not know why extra shifts had been run that year as, throughout her employment with the Respondent, they have only been run at Christmas time.
47Casuals are on call. The number of casuals called in varies from day to day as it depends on the volume of work.
48Ms Kennedy pointed out that the Respondent had commissioned a risk assessment of the Distribution Centre by a physiotherapist. The assessment revealed that 15 kilos is the average weight picked, 18.6 kilos are picked occasionally and 25 kilos is the heaviest weight picked.
49The task analysis conducted revealed that 20 kilo items are frequently lifted from floor to waist and overhead and between items weighing between 1-20 kilos are carried. In the last twelve months, since that analysis was conducted, there has been created one 25 kilo item as well (a potting mix) resulting in a further risk analysis being conducted in relation to the additional weight.
50A functional assessment of Mr Hickey was sought by the Respondent. The functional assessment was completed by Independent Physical Assessment Services (IPAS) for the purposes of these proceedings. The physiotherapist, Jill Myburgh, conducted risk assessments on every task within all the Respondent's DCs and came up with what the job requirements were. The functional assessment revealed the frequency and the occasion of the weights lifted in the DC.
51Ms Kennedy disagreed with the comment by Mr Hickey that the primary function of a casual team member is to pick and pack. She pointed out that it is the sole task of a casual employee.
52Ms Kennedy confirmed that part-time workers undertake exactly the same work as full-time workers. Both must pick/pack a minimum of at least one day out of five. On other days, they rotate through the following tasks - receiving, unloading, repacking, pallet rotation, dispatch loading, general administration, maintenance (battery changes), cleaning, operating the sit down forklift Pal-O-Matic (which requires induction training only), operating the high reach forklift (providing they possess a forklift licence). Those who do not possess a fork lift licence use other machines as their rotation. She explained:
Yes, what happens is we have what's called an employee rostering system.... everybody starts off picking and packing. As you learn each task or inducted into each machinery, that's added to your name. So all permanent and - or full-time, part-time, whichever way you want to refer to them, people, are put into the employee rostering system. In the morning we might have 100,000,000 cartons to pick that day. So what the rostering system does is we key in, we need to pick 100,000,000 cartons. It will say you will need so many forklift drivers to do letdowns, so many to do put always, so many to load and then everybody else goes onto the pick. So it automatically rosters people through the system and then whatever numbers we don't have to complete the pick function, is where we use the casuals....[for example] once you're inducted on the sweeper, which is a cleaning machine, that gets put into your ERS profile and the system automatically rotate you through all of the tasks that you can do.
53In other words, the Respondent inputs into the ERS profile of an employee what that employee has been inducted to do and, in the case of forklifts, what that employee has been licensed to drive. Tasks, with the exception of picking and packing which are mandatory and are automatically added to every employee's profile, can be added or deleted. For that reason, any employee confined to limited duties for whatever reason needs to be suspended from the automatic rostering system and suitable tasks manually created for them on a short term basis only, that is, over 2 weeks but under six months:
A. Up until the doctor tells us that they're not going to recover and the WorkCover hierarchy says that when you become aware that the person won't return to pre-injury duties, you should look to vocational re-deployment for them.
54Ms Kennedy said she played a role in managing Mr Hickey's post-injury employment. When she returned from maternity leave in February 2008 she processed the withdrawal of duties and his subsequent termination in 2009. She was the person responsible for ensuring that the Respondent complied with its legal obligations in relation to the rehabilitation of injured workers by making suitable duties available to Mr Hickey. She contended that Mr Hickey was supplied with suitable duties up until the Respondent was informed, through the Injury Management Program, which was co-ordinated with Dr Law, that Mr Hickey would not be able to return to pre-injury duties.
55Ms Kennedy stated that, occasionally there will be the need for a night shift to be run at Christmas. A notice would have been displayed and, had Mr Hickey been at the DC at that time, he would have had the opportunity to apply for the Christmas 2010 night shift. Whether he was successful depended on operational requirements and how many had applied.
56Although she had been aware, at least since September 2010, that Mr Hickey wanted his job back, she said she did not contact him to advise of the limited tenure contracts because he was not their employee at the time.
57The medical certificate from Dr Law dated 13 May 2009 , which stated that he was fit for pre-injury duties, would have been sent directly to the Return to Work coordinator, Sylvia Rowe, and inserted immediately in his injury management file.
58She accepted that he would have forwarded all of his medical certificates to the Respondent in order to have maintained his workers compensation payments.
59The first medical certificate dated 3 January 2008 from Dr Lee stated that Mr Hickey was unfit for work between 3 January 2008 .... he is then declared fit for suitable duties from 18 February 2008. Ms Kennedy stated that he was provided with some suitable duties in accordance with the medical certificates that were provided. He worked eight hours per day for three days a week on restricted duties. He was given essentially administrative tasks to perform as he had a one kilo lifting restriction. He was required to conduct integrity checks (he would be required to walk up and down the isles with a pen and a clipboard to check that the contents of the report on the clipboard is correct, that is if it says that there is dog food on a shelf that the report was correct); stock on hand counts; and assist in the dispatch office with ripping up orders (part of the normal rotation duties). She explained that integrity checks and stock on hand checks (except at stock take time) were token tasks, albeit useful checks, and are reserved for employees on suitable duties.
60In about 1 April 2008 Mr Hickey had surgery and he was off work for about two months. He returned to suitable duties from 9 June 2008.
61Ms Kennedy pointed out that in the previous Injury Management Plan, Dr Law said that Mr Hickey would return to pre-injury duties within six months. She noted that six months' later, a document generated by Megan Sales and contained in Mr Hickey's Injury Management Plan, stated that, as at 20 June 2008:
"Dr Law indicated the prognosis for Terry was good and his next suitable duties upgrade should be around 30 June 2008. Dr Law advised that Terry would be required to continue physiotherapy treatment for approximately six months and should be able to commence her (as said) work related activity program in approximately three months. Dr Law indicated he was unsure as to when Terry may be able to return to pre-injury duties." [emphasis added]
62Ms Kennedy made the following file note on 20 June 2008:
"I met with Terry to withdraw duties, explained to Terry the following: ....
"Explained to Terry that the decision is based on Dr Law being unclear as to when/if would be able to return to pre-injury duties. Also explained to Terry that if his prognosis changed and he became PID he would need to complete FCE [Functional Capacity Evaluation] prior to his returning."
63Mr Hickey did not upgrade from the one kilogram lifting restriction while on suitable duties at the DC prior to those duties being withdrawn on 25 June 2008 during a meeting he attended with Ms Kennedy. Ms Kennedy advised that the decision to withdraw those duties was made after discussions were held with the managers of the DC about the contents of the injury management plan once it was received from injury services.
64Ms Kennedy agreed that his prognosis did change after that assessment:
From 31 July 2008 he was assessed as suitable to lift up to five kilos.
From 14 Aug 2008 he was assessed as being able to lift up to seven kilos.
From 27 Aug 2008 he was assessed at being able to lift up to eight kilos.
From 11 Sept 2008 he was assessed as being able to lift up to ten kilos.
From 9 Oct 2008 he was assessed as being able to lift up to 12 kilos.
He was not asked to complete a functional capacity evaluation because the functional assessment is based on a return to work on pre-injury duties.
65Once his duties were withdrawn on 25 June 2008 and until his termination on 10 February 2009, the DC had nothing to do with him. There was no contact established with him. He would have been wholly and solely looked after by a vocational specialist at Injury Services.
66Ms Kennedy forwarded a letter to the Applicant inviting him to attend a meeting on 10 February 2009. He would have been given a week's notice of the meeting. Mr Hickey was requested to bring along any medical information regarding his long term prognosis. She had not personally spoken to Dr Law or any other treating medical practitioner at that time. Ms Kennedy said she had seen all of the relevant medical certificates, including the one of 10 February which said that he could lift up to 12 kilograms. Nevertheless, she terminated his employment as at 20 February.
67Ms Kennedy could not recall Mr Hickey saying to her during that meeting words to the effect "I intend to return to work as soon as I'm able to" or asking Mr Kahn who was also at that meeting "You'll take me back when I'm fit won't you?" . She had kept notes of that meeting. She denied that Mr Hickey had made it known to her during that meeting that he had made substantial improvement since his operation in April 2008. She said he showed by the certificates that his lifting capacity was up to 12 kilos but he informed them that he was having a lot of trouble with his left shoulder. He was experiencing a lot of pain in his that shoulder because he was using his left arm to overcompensate for the right arm. She recalled that he made the comment that he would have trouble lifting a milk carton out of the fridge because if he held out his arm he would not have the strength to hold it up. She denied that he told her that he was coping very well.
68Ms Kennedy confirmed that Mr Hickey was not given the opportunity of applying for any alternate roles within the Group at that meeting. Nor did she offer to provide him with more time to gather medical evidence to suggest when he might be fully fit for work.
69Ms Kennedy recalled that she received a telephone call from Mr Hickey after his February 2009 termination and after he received his pre-injury duty certificate asking her what he needed to do if he wanted to apply for his job back. She said she had referred him to Peter Stine, the HR Manager, as employment issues were not within her jurisdiction.
70Ms Kennedy claimed that she saw the letter from Mr Hickey dated 14 May 2009 (in which he sought reinstatement to his old position of casual stock selector as he was certified fit for pre-injury duties) for the first time the previous night when she got home from work and checked her emails.
71Ms Kennedy pointed out that when Mr Hickey commenced employment on 16 March 2004, the Respondent had a pool of about 120 casual employees. As at the time of the hearing, there were only about 8 casual employees at Smeaton Grange. The number of full-time and part-time staff have also decreased.
72Mr Hickey was assessed as working approximately 29 hours per week at $29.64 per hour and his worker's compensation payments were based on that assessment. He was never on a roster but was on a call in basis albeit he would have worked every week for about the 27 to 29 hours every week or thereabouts.
73Ms Kennedy pointed out that the crux of the Respondent's evidence was simply that Mr Hickey cannot be employed because he cannot pick and pack. To accommodate Mr Hickey would result in the company having to change all of the system of rostering and having a special system for Mr Hickey alone. A short term system is available whereby handwritten duties are handed out every day to workers who are on alternate duties. Ms Kennedy gave evidence that "...there would be a lot of repercussions to have that on a long term basis. The first one would be there would be union issues within the...warehouse as well" notwithstanding the fact that Mr Hickey was a union member at the time because the Union members were "very strong on rotation".
74Ms Kennedy explained that if Mr Hickey was provided with a part-time role, his duties would have to be adjusted manually. Another worker, scheduled to drive the forklift, would have to miss out on respite time because Mr Hickey was given that role. In addition, Mr Hickey would not be unable to perform the lifting component on the forklift and therefore a second person would have to be engaged on that shift to assist him to undertake the lifting work.
75Dr McGroder agreed with the assessment conducted by the physiotherapist - Jill Myburgh - that Mr Hickey was not suited to the role. Dr McGroder noted:
"She did not comment on alternative work but concluded that if he did not have the capacity to return to his pre-injury duties in an unrestricted manner, I would agree with the findings and the conclusions as have been outlined in this functional assessment."
76The letter noted that the Functional Capacity Evaluation (FCE) results indicate that Mr Hickey is able to work at the medium physical demand level on a full-time basis, provided overhead work and the work at the outer range of the shoulders is minimised. That indicated that there was full-time work which Mr Hickey could meaningfully do subject to that restriction.
77Ms Kennedy agreed that there were no tasks listed in relation to SMG1 which Mr Hickey would not be able to do. There were no actual weights on that task analysis but denied that it was because there would be no weights to be lifted unloading.
78Ms Kennedy agreed with Mr Thornell that Mr Hickey would be of little utility to the Respondent because it takes a million cartons out of that DC a day so the majority of the work involves picking and packing and they need to have all of their full time employees able to do all of the tasks as per the EBA. The following exchange took place during cross-examination:
Q.But Ms Kennedy they can't do all of the tasks because not all of your workers are for example licensed to drive a forklift?
A. That is correct.
Q. So they can't do all of the tasks?
A.They have to be physically able so as they go through their training to get a forklift license they would be able to do that.
Q. Are you suggesting that there is a plan in place for all 400 workers at Smeaton Grange to be licensed to drive a forklift at some stage?
A. I don't know what their eventual numbers are. There's an ad up at the moment for expressions of interest for anyone that would like to...
79The Respondent provides ongoing training to its staff. It is not a requirement of employment, for example, that somebody be able, and licensed, to drive a forklift because the main tasks are picking and packing and everyone must be able to do that except for injured workers who are required to pack and picking becomes part of their return to work plan.
80Ms Kennedy agreed with Mr Thornell that picking and packing constitutes approximately 50 per cent of the rostered hours of full-time employees because they are required to pick a minimum of once a week. "...When you look at the ratio of how many boxes that we picked to the number of staff,... there would be no one that only picked once a week, except for a few".
....our rostering system bases it on the exact number of people which, .... we have X number of full-time people, they'd become rostered out and then that's backfilled with agency casuals. So if you calculated that it took 200 people to do this number of tasks, no matter which tasks Mr Hickey was doing, if there was one component of it that he can't do, somebody else would have to do it, it would be an extra person because it calculates exact to what you need.
She disagreed with the proposal that Mr Hickey could do at least half of the tasks contained in the task analysis pointing out that he cannot undertake receiving and unloading duties and cannot operate the high reach forklift because they involve some lifting. In addition, he cannot undertake cleaning duties as those would require lifting of 20 kilo weights. He can, however, do pallet rotation, operate the sit down forklift, general administration, maintenance and cleaning tasks.
81Nevertheless, Ms Kennedy still believed that there was lifting involved in all of the tasks that the Respondent provides. She pointed out that it was nothing personal and that the Respondent would not create a role for anybody, not just Mr Hickey. She agreed that when there was a shortage of staff to do the picking packing, casuals were employed to undertake that work. The Respondent would have to take him out rotational roles because he would not be able to pick (the main function of the warehouse) and that would result in the Respondent taking away respite jobs of others.
82It was put to her that a casual could be employed to do the chores he cannot do on his shift. She responded that employing him on that basis would be akin to him "taking away a role of one of our other full-time workers".
83There are no roles for employees designated as clerical employees. Not everyone of the 200 team members have computer skills. Therefore there is a smaller rotation pool for clerical functions. The majority of the functions of those with computer skills is clerical although all team members must pick pack at least once a week and operate forklifts. Therefore, in her opinion, if Mr Hickey was employed in a clerical function, then someone else would have to be moved out of their position in the clerical function to perform another task. The clerical role would have to be created for Mr Hickey so that he would not have to do picking packing duties.
84It was suggested to Ms Kennedy that a full-time role can be split between Mr Hickey as a part-time employee, working 3 days out of 5, and a casual undertaking two days' work. For example, if Mr Hickey was employed on a part-time basis, 3 days out of 5:
..... So say for example Monday he's in the office, Tuesday he's in the office, Wednesday he's driving around in the forklift, right? Thursday, Friday would be his packing days, picking packing days. He can't come in on Thursday and Friday because he can't pick and pack so instead of having Mr Hickey come in what you do is you get a casual to come in and do those two days worth of work?
A. So again I'm creating a role where he would be the only person in the warehouse employed for a casual that isn't required to pick and pack.
85When questioned as to why she had not offered Mr Hickey a full-time position after he provided a pre-injury duties certificate to her in May 2009, Ms Kennedy replied that she was not aware of any application by the Applicant for a full-time role. The only role he had asked for was his pre-injury position as a casual selector as set out in his letter. If he had asked for a full-time position he would have been required to undergo a functional evaluation.
86During re-examination, Ms Kennedy gave evidence that some of the tasks that are allocated to those on suitable duties, for example, integrity checks, are tasks that are not necessary to be done. There was no one on permanent light duties and if the Respondent was to have Mr Hickey on permanent suitable duties, that would impact upon its capacity to provide suitable duties to those who suffer workplace injury and are placed on a return to work program.
87Ms Kennedy pointed out the Respondent commences to assess the situation at around the six month mark to establish whether an injured employee is able to be rehabilitated or to try and establish some timeframes.
88Ms Kennedy stated that at no time prior to, or since filing the application, did Mr Hickey, or indeed anyone on his behalf, take any action or raise any issue with the company as to its non-fulfilment of its obligations pursuant to the various worker's compensation legislation.
89Mr Sam Thornell has been engaged by the Respondent as Day Shift Manager at the Smeaton Grange DC since 4 January 2011.
90Mr Thornell pointed out that since the Applicant's termination, there has been a significant increase in the volume and the range of the lines that the Respondent has in the DC. For that reason, the dynamics in the operation has changed a little bit since that time in that there has been a considerable addition to the migration of the lines or the products that have been added to the business. That change has impacted upon the weight that picker and packers are required to lift in that the average weight has increased from 8-10 kilos to 10-15 kilos.
91He pointed out that if Mr Hickey returned as a casual, all he would be doing is picking and packing. If he were to return as a full-time employee, he would still be required to do some picking. Therefore, there was no job that Mr Hickey could do that would assist the Company.
92He confirmed that both full-time and part-time DC staff rotate through a range of tasks which include picking and packing, unloading and receiving - all of which require some sort of movements of cartons to and from pallets and use of a high reach forklift.
93During cross-examination, Mr Thornell advised that he has not met Mr Hickey and does not know anything about him or his restrictions nor had he read Dr. McGroder's report.
94The full-time employees rotate over a three-week cycle and approximately 50% of their time is spent on picking packing duties.
95He agreed with Ms Kennedy's evidence that all staff must pick at least once a week, which is one out of five days. Nevertheless over a three-week cycle they will spend an average of about 50 per cent of their time on picking and packing. He agreed that they can accommodate people who do not have forklift licences into other duties so long as they can pick and pack. Therefore, if a worker cannot pick and pack they are "pretty much" completely useless to the company. Administrative staff fall outside the EBA which prohibits anyone not covered by that agreement from picking and packing. Casual employees are not rotated through other tasks and are required to do picking and packing for 100 per cent of their hours, somewhere between 20 and 30 hours. He explained that the permanents take preference over casuals in that they "get the higher functions before the casuals do, that's, that's the law of the shed" . In other words, the hierarchy that exists requires full-time employees to be at the top of the feeding chain. Full-timers and part-timers are split amongst all the rotations, for example, forklift driving, working in the office, receiving, despatch, unloading the trucks, to ensure that they are not injured. The casual employees are essentially at the bottom of the feeding chain and they undertake all of the picking and packing. He said that Smeaton Grange is a highly-unionised workplace and warned that there would be industrial consequences in that "the boys would be on the grass pretty quick" if a casual was put on the forklift.
96Mr Thornell said he was not aware that Mr Hickey has a forklift licence.
97As there is an obligation to rotate employees and to assign one function or one role to any employee, not only would the Respondent be in breach of the EBA but to do otherwise would neither be feasible nor reasonable. For example, if Mr Hickey was given a full-time role of receiving/unloading which does not require lifting, then someone else would have to do the lifting. The work done by high reach fork lift is reserved for permanent staff. He stated that if Mr Hickey cannot pick and pack, then there is little utility in employing him.
98Drivers of the High Reach Forklifts are required to frequently lift between 1 to 20 kilograms.
99Mr Thornell pointed out that it was not feasible to have someone engaged to undertake only two tasks - receiving and unloading from pallet rotation and nothing else.
Q. And then we have general admin. So if I ask you this generally that - in this task analysis would it be feasible in your view as the shift manager to create a job for an individual - one individual, that only involved those tasks that don't have lifting as a component?
A. No it wouldn't.
100Mr Tudor Douglas Stephens is employed as Injury Services Manager by WesSAFE Injury Services.
101Mr Stephens identified a file note that he had typed straight onto his computer during a discussion he had with Mr Hickey on 18 December 2009. As Team Manager, a call was transferred to him from Mr Hickey in the absence of the assigned Case Manager. Mr Hickey provided his claim number which Mr Stephens brought up on the computer system. He noted that the system indicated that the claim had been closed in September 2009 because Mr Hickey had been certified as fit for pre-injury duties by his nominated treating doctor in June 2009. Mr Hickey advised that he had been with his new employer (who he did not identify) for about 12 weeks and had injured himself. Mr Hickey said that he had been told fairly recently that QBE Insurance had rejected his claim. He had attempted to obtain more information from Mr Hickey but was advised that the latter had not been provided with a claim number or any documentation. Mr Stephens said he advised Mr Hickey to seek legal advice as another injury had occurred with another employer and to lodge a claim with CAS of WorkCover because QBE had failed to follow due process and make a determination of liability within 7 days and notify Mr Hickey in writing.
102During cross-examination, Mr Stephens confirmed that he had noted in that file note that QBE may well have been correct in its determination that the claim should be lodged with Coles - not because it was an aggravation of an existing injury (which would be considered a new injury) but because it was a recurrence. He explained that the law stipulated that whoever the claim was lodged against was the leading agent and that Insurer must follow a full process of investigation and liability determination on either acceptance or rejection. QBE had not done that and hence his advice to Mr Hickey to seek legal advice and consult CAS. As far as he was aware, no further claim was made on Coles following that conversation.