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[2017] FWCFB 1510
General information, not legal advice.
Fair Work Commission (Full Bench)
2017-05-17
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 17 May 2017.
At paragraph [2] of the Decision, "7 January 2017" is amended to "7 March 2017".
s.604 - Appeal of decisions
Appeal against decision [2017] FWC 440 of Commissioner Spencer at Brisbane on 20 January 2017 in matter number C2016/2875.
[1] On 20 January 2017, Commissioner Spencer issued a Decision,[1] which found that Mr Stephen Martin ("the Respondent") was fit to perform the inherent requirements of the role of a Bulk Driver with TNT Australia Pty Ltd ("the Appellant"). Accordingly, the Commissioner found that the Respondent should be returned to his role as a Bulk Driver immediately with appropriate "work hardening" as recommended by Dr Christopher Cunneen.
[2] On 10 February 2017, the Appellant lodged a Notice of Appeal, appealing the Decision made by the Commissioner. I heard the appeal with Deputy President Gooley and Commissioner Bissett on 7 March 2017 and reserved my Decision. At the hearing, Mr F. Parry, of Queen's Counsel, and Mr B. Rauf, of Counsel, sought permission to appear for the Appellant and Mr R. Reid, of Counsel, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.
[3] The Commissioner found that the assessment of the inherent requirements must take into account the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices. The Commissioner concluded that it did not appear to be the case that the Appellant directs or requires employees to use manual handling devices or aids at any particular time, but rather, leaves such matters to the individual judgment of each driver. Integral to this, the Commissioner noted that the Appellant considers that drivers should make this assessment on each occasion by assessing the risk of each particular item and particularly when heavy items do need to be moved. The Commissioner found that the evidence before her did not establish that this was so likely that it would be unreasonable to accommodate the Respondent in this respect. The Commissioner noted that it is unclear why manual handling aids or other avenues would not, as a matter of routine, be available to the Respondent and be used in circumstances to reasonably accommodate a potential limitation. Accordingly, the Commissioner found that the clear obligation for this assessment rests with the Respondent for the use of the mechanical aids.
[4] The Commissioner found that the evidence did not represent that what is asserted as the inherent requirements of the role of Bulk Delivery Driver are the inherent requirements in practice. As such, the Commissioner found that the Respondent was fit to perform the inherent requirements of the role of a Bulk Driver with the Appellant. Accordingly, the Commissioner found that the Respondent should be returned to his role immediately with appropriate "work hardening" as recommended by Dr Christopher Cunneen.
[5] At the heart of the appeal was whether the Commissioner correctly applied and construed the relevant principles in assessing whether the Respondent was fit to perform the inherent requirements of the role of Bulk Driver with the Appellant.
[6] The Appellant outlined five main grounds of appeal, which I summarise as follows.
[7] Firstly, the Appellant contended that the Commissioner erred by taking into account "reasonable accommodations" in determining the inherent requirements of the role of a Bulk Driver with the Appellant. In this regard, the Appellant noted that, as outlined in the decision of Qantas Airways v Christie[2] (hereafter "Christie"), whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact, rather than as a matter of mere speculation or impression. The Appellant submitted that the Commissioner's discussion at paragraph [75] of the Decision as to approaches taken in respect of employees with similar back issues and the suggestion of an onus on the employer to adduce such evidence by way of comparison reinforces this incorrect approach adopted by the Commissioner. The Appellant asserted that the Commissioner also failed to properly consider the circumstances of the work and operations of the Appellant. Instead, the Commissioner focused on likely scenarios and the frequency (or infrequency) of a Bulk Driver manually handling heavy freight. In particular, the Appellant outlined five examples that it contended the Commissioner failed to consider, which I will not recite for the purposes of this Decision. In failing to consider those examples, the Appellant posited that the Commissioner failed to determine the inherent requirements of the role of a Bulk Driver in the context of the operations of the Appellant.
[8] Further, the Appellant submitted that, by relying on the Driver's Handbook as providing the safe methods of manual handling, the Commissioner ignored the evidence that the Driver's Handbook applies on the presumption that an employee is otherwise fit to undertake the work of a Bulk Driver. Moreover, the Appellant contended that by ignoring the purpose and operation of the Core Positions Document, and instead placing reliance on the Driver's Manual (for instance, at paragraph [81] of the Decision), the Commissioner's assessment of the inherent requirements ignored an important organisational risk minimisation factor. Instead, the Commissioner incorrectly arrived at an assessment of the inherent requirements which relied heavily on the subjective assessment of a worker as to his or her capabilities and how work should or may be performed.
[9] Secondly, the Appellant noted the Commissioner's findings at paragraphs [68] and [69] of her Decision regarding the lifting restriction applicable to the Respondent. In this regard, the Appellant asserted that such findings were inconsistent with the matters of fact outlined at paragraph 17 of its submissions and that the findings reflected the Commissioner's misunderstanding of the Core Positions Document. The Appellant submitted that the document sets out the minimum threshold of capability which employees must be able to handle to safely perform the duties associated with their role because they may be exposed to such weights in the course of undertaking their duties. It does not in itself impose a requirement that an employee is to lift 40kg or more than 40kg. The Appellant contended that the finding of the Commissioner that the Core Positions Document and related health assessment against the requirements of the Core Positions Document was confined to a pre-employment assessment stage would have the extraordinary outcome that a key risk minimisation process of the Appellant relating to manual handling would not apply to existing employees and there would be different requirements and safety practices relevant to different categories of employees depending on when they commenced employment.
[10] Thirdly, the Appellant contended that the Commissioner neither in any way addressed, nor dealt with the findings in Phillip Alcock v TNT Australia Pty Ltd T/A TNT Express[3] (hereafter "Alcock") as they related to the matters for determination before her, namely, the operation of the Core Positions Document and the assessment of the inherent requirements of a role with the Appellant.
[11] Fourthly, the Appellant submitted that, in agreeing with the Respondent's submissions relating to Dr Cunneen's oral evidence regarding his commentary on the 40kg weight, in effect, the Commissioner dismissed the explanation of Dr Cunneen as to the clarification provided by him in his subsequent report. Further, the Appellant asserted that the Commissioner held that the findings of Dr Cunneen emanated from the "very casual oral exchange" without regard to the associated factual medical documentation. In this regard, the Appellant outlined five examples of important facts emerging, which I will not recite for the purposes of this Decision. In relation to those five examples, the Appellant posited that it would be surprising if, despite the policy under which the health assessment is triggered, it could only be confined to an identified concern rather than more broadly as to the fitness for work of an employee. The Appellant submitted that the findings made by the Commissioner that the medical assessment could not be considered to be a fair approach are without basis and ignore the workplace realities of medical assessments. In the alternative, the Appellant submitted that, even if it is considered that there was an element of unfairness (which is denied); any such unfairness was cured on the Respondent having an opportunity to provide his own medical evidence confirming his fitness for work as against the requirements associated with the role of a Bulk Driver. In this regard, the Appellant noted that the Respondent had an opportunity to obtain such medical evidence leading up to the hearing and was given an extension of time to obtain and file such evidence.
[12] Fifthly, the Appellant submitted that, at paragraph [64] of her Decision, the Commissioner referred to and effectively adopted the submissions of the Respondent to the effect that other practitioners also held concerns about the "40kg lifting requirement". The Appellant asserted that such a characterisation of the reference to 40kg as a lifting requirement is misconceived. Further, the Appellant posited that Dr Munn made five concessions during cross-examination, which I will not recite in this Decision. In light of those concessions, the Appellant contended that it is difficult to see on what basis Dr Munn's views as to the lifting requirements applying to the Appellant can be given any weight. Further, the Appellant asserted that an extract of the report of Dr Butler was admitted despite an objection on behalf of the Appellant. In this regard, the Appellant noted it made submissions as to the prejudice which arose by admitting the extract of the report and also its lack of probative value, given the lack of understanding as to the circumstances of the employee to which the report related, the context of the report and the inability to test or understand the basis on which Dr Butler had expressed his views.
[13] For the above reasons, the Appellant contended that the Commissioner's Decision was affected by appealable errors and that the appeal should be upheld. On any rehearing of the matter, the Appellant asserted that the Full Bench ought to conclude that, on the basis of the evidence before the Commission, the Respondent was not fit to perform the inherent requirements of a Bulk Driver with the Appellant.
[14] The Respondent addressed each of the Appellant's five main grounds of appeal as outlined above.
[15] In relation to the first ground of appeal, the Respondent contended that the Commissioner correctly had resort to the decisions in Christie and X v The Commonwealth[4] regarding the inherent requirements of a role and outlined six principles, which I will not recite for the purposes of this Decision. The Respondent asserted that the Respondent's General Manager, Mr Zichy-Woinarski, gave evidence[5] that, in the Appellant's view, the only inherent requirement with which the Respondent could not comply was the 40kg lifting requirement. The Respondent submitted that he had been tested as to his physical capacities after he had been certified fit to return to work in September 2015[6] and had demonstrated a capacity to lift up to 25kg from floor to waist, at which time he had ceased that testing as he had started to sweat.[7] Further, the Respondent posited that the evidence[8] established, and the Commission found,[9] that 90% of bulk freight was palletised. Moreover, that it was conceded by the Respondent's witnesses[10] that there was no need for drivers to manually handle any freight unassisted at the Appellant's Redbank depot due to the presence of ample mechanical and manual assistance. In this regard, the Respondent submitted that the prospect of manually handling freight existed only at the delivery point[11] and might involve circumstances where there was a need to "split" a pallet.
[16] The Respondent outlined eleven points as to the likelihood of a Bulk Driver having to manually handle an item weighing in excess of 20kg at the delivery point. Having regard to these eleven points, the Respondent contended that it was open to the Commissioner to conclude that the need to manually handle freight items in excess of 20kg was infrequent and that there were alternative methods available to lift such freight. Moreover, the Respondent submitted that the Respondent's contract of employment obliged him to comply with the Driver's Manual.[12] In particular, the safety items in the Driver's Manual contained instructions indicating that an item greater than 20kg was to be described as "heavy" and that a driver was to obtain assistance for shifting such items and, if such assistance could not be obtained, then the freight was to be returned to the depot.[13] Further, the Respondent noted that Mr Seers confirmed that the decision as to whether an item was too heavy was a matter of self-assessment by the driver and that the Driver's Manual was a tool to be deployed in making that assessment.[14] The Respondent also contended that when the Commissioner referred to "accommodations", she was referring to those safety directions and mechanisms which the Appellant had put in place. In this regard, the Respondent noted that, as an example of the Respondent's approach, Mr Seers confirmed that if a driver assessed 40kg as being too heavy or too awkward to lift, he would be allowed to seek assistance and there would be no repercussions in those circumstances.[15]
[17] In relation to the second ground of appeal, the Respondent contended that at paragraph 23 of the Appellant's submissions, the Appellant refers to paragraphs [68] and [69] of the Decision and certain conclusions about lifting items "in excess of 40kg" as an inherent requirement of the role. In this regard, the Respondent contended such a description was a misnomer. The Respondent contended that a minimum lifting capacity of 40kg floor to waist for an unassisted lift was not practically an inherent requirement of the role as a Bulk Driver. The Respondent also posited that the Appellant's submission that the Commissioner regarded the Core Positions Document as confined to a pre-employment assessment is misconceived. In this regard, the Respondent submitted that the Commissioner was well aware of the broader use of the document. In particular, at paragraph [77] of the Decision, after referring to the use of the document as part of the pre-employment assessment for prospective employees, the Commissioner stated that "[i]t is recognised it also had wider application to the workforce." The Respondent asserted that, upon a proper consideration of the Commissioner's Decision, she did not fail to give appropriate weight to the Core Positions Document and that she assessed it as part of an organisational scheme which included the safety mechanisms and directions referred to in the evidence and in these submissions.
[18] In relation to the third ground of appeal, the Respondent contended that Alcock dealt with an entirely different factual scenario to the present case and its reasoning should be confined to those facts. The Respondent outlined nine distinguishing features between the present matter and Alcock, which I will not recite for the purposes of this Decision.
[19] In relation to the fourth ground of appeal, the Respondent asserted that the Commissioner was correct to discount the evidence of Dr Cunneen for a number of reasons. Firstly, Dr Cunneen's evidence was riddled with inconsistencies. Secondly, Dr Cunneen's conclusions that the Respondent would be at a moderate risk of injury if he was required to lift 20kg unaided was based on a series of incorrect assumptions, being that:
(a) "In 2010, the Respondent had suffered an aggravation of a lower back injury which had required surgery in 2006";[16]
(b) The Respondent's lumbar injury required surgery during 2010;[17]
(c) The Respondent had a "prior history of recurrent work-related lumbar injury over the past decade, requiring spinal surgery";[18] and
(d) The Respondent suffered from degenerative lumbar spondylosis.[19]
[20] The Respondent contended that Dr Cunneen's conclusion about risk of injury to the Respondent should he lift weights in excess of 20kg could not be accepted and the Commissioner was correct in placing no weight on it.
[21] In relation to the fifth ground of appeal, the Respondent asserted that there was no error in the Commissioner accepting the opinion of Dr Munn in which he agreed with the proposition that an unaided lift in excess of 20kg would pose a significant risk of injury to any employee, and that a 40kg lift should be safely performed as a two person lift. Further, the Respondent submitted that the Commissioner was also entitled to rely upon the opinion of Dr Edwin Butler that lifting 40kg from floor to waist would be considered a hazardous manual task carrying with it a foreseeable risk of injury. The Respondent also posited that the Commissioner was not in error in admitting the extract of the report by Dr Butler and there was no lack of procedural fairness and noted four points on the debate of admissibility, which I will note repeat in this Decision. Moreover, the Respondent contended that Mr Zichy-Woinarski was able to give evidence in re-examination[20] that Dr Butler had, on the relevant occasion, been provided with the relevant Core Positions document and a letter of instructions to conduct a fitness for duties assessment, with there being no further discussion with Dr Butler after those materials were received.
[22] For the above reasons, the Respondent submitted that the conclusions the Commissioner reached were open to her on the evidence and she was correct to conclude that the Respondent was fit to perform the inherent requirements of the bulk driver role. As such, the Respondent contended the appeal should be dismissed.
[23] The Commission will grant permission to appeal only if it is in the public interest to do so.[21] The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.[22] In GlaxoSmithKline Australia Pty Ltd v Colin Makin,[23] the Full Bench summarised the test for determining the public interest as follows:
"[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O'Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case."
[24] Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[24]
[25] In determining whether permission to appeal should be granted I have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[26] I find that permission to appeal should be granted in this matter. I am of the view that the appeal raises important questions concerning the application and construction of the relevant principles in assessing whether the Respondent was fit to perform the inherent requirements of the role of Bulk Driver with the Appellant. I consider this to be an important matter regarding the Commissioner's approach in making such a determination and, therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.
[27] I note that a decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. I note that it is not open for me to substitute my view on the matters that fell for determination before the Commissioner in the absence of error of an appellable nature in the Commissioner's original Decision. As the High Court said in House v The King[25]:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
[28] As is apparent from paragraph [55] of the Commissioner's Decision, the inherent requirements of the role of a Bulk Driver with the Appellant had to be determined. At paragraph [57] of the Decision, the Commissioner noted that in determining the inherent requirements of a particular role:
"The assessment must take into account; the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices."
[29] Thus, in assessing the inherent requirements of the role as a Bulk Driver, the Commissioner accepted that reasonable accommodations, by way of lifting aids, must be considered.
[30] Mr Seers, Hub Operations Manager, noted at paragraph 8 of his Affidavit that:
"I disagree that commercial premises have various manual handling equipment available. Not all delivery sites have manual handling equipment available. As an aspect of TNT's service, it does not require nor expect that client sites will have relevant manual handling equipment."
[31] This is corroborated by the statement of Mr Zichy-Woinarski, General Manager, who stated at paragraph 83(b) of his Affidavit that:
"Whilst TNT does provide mechanical aids, TNT cannot guarantee that manual handling of such freight can't be avoided on all occasions ... or the mechanical aids provided are not practicable to the perform (sic) specific delivery."
[32] Further, during cross-examination, I note the following extract from transcript dated 25 July 2016[26] between Mr Rauf, of Counsel, and the Respondent:
"PN450: And if I could just briefly turn to your second statement. Have you got a copy of that? I think it's exhibit 3? Have you got a copy of that, Mr Martin?---My reply to the affidavit?
PN452: So paragraph 9 for instance you discuss the use of the heavy sticker on freight where it felt heavy or was in excess of 20 kilograms, but of course, given the evidence earlier, there was no precise way to know whether something was in excess of 20?---That's correct.
PN453: So it really came back to your assessment of it when you first lift it up?---That's correct. Yes.
PN454: And it may be heavier or it may not be?---That is correct.
PN455: And you'll agree that a driver's particular assessment would turn on the experience and the capacity of that driver, so what may be heavy for another may not, for instance, be heavy for you?---That's correct.
PN456: And so if you were dealing with it or loading it on to a pallet you may not put a sticker on it. Conversely, if another person was doing it they may put a sticker on it?---That's correct.
PN459: Well, how would you - you said you'd lift them out. And if, for instance, you have something which might be four metres in length - - -?---Yes, you would lift them out and put them off to the ground."
[33] Thus, it is clear from the evidence outlined above that there was no certainty about the assistance of mechanical or lifting aids which may be available at a customer's site. Further, as elicited from the transcript, employees may be required to lift certain items. Nevertheless, I note that the Respondent states at paragraph 6 of his Affidavit in Reply that:
"I would ring the customer before leaving the Depot to find out whether or not they had manual handling equipment, or had someone who would be able to assist with a 'hand unload'."
[34] The Respondent may have taken initiative in advance to ensure that lifting or mechanical aids were available to him. However, this is not a basis upon which one can conclude that lifting weights unassisted was not an inherent requirement of the role as a Bulk Driver. The assessment of what forms part of the inherent requirement does not necessarily include the particular practices undertaken by the Respondent in performing his role as a Bulk Driver.
[35] Moreover, at paragraph [67] of the Decision, the Commissioner found that:
"The evidence before me does not establish that this is so likely that it would be unreasonable to accommodate the Applicant [the Respondent in the current proceedings] in this respect. It is unclear why manual handling aids or other avenues would not as a matter of routine, be available to the Applicant and be used in circumstances to reasonably accommodate a potential limitation."
[36] At paragraph [68] of the Decision, the Commissioner held:
"The evidence before me does establish that 90% of the delivery items in respect of the Applicant's role is on a pallet."
[37] In J Boag and Son Brewing Pty Ltd v Button[27](hereafter "Boag"), it was held that:
"When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered."[28]
[38] Having regard to Boag, in assessing what constituted the inherent requirements of the role of a Bulk Driver, the Commissioner was not required to determine whether it would be "reasonable" to accommodate the Respondent with lifting aids. Further, the Commissioner's reference to the infrequent nature of manually handling certain freight was not a basis upon which to conclude that such a task was not an inherent requirement of the role of a Bulk Driver. This is corroborated in Philip Alcock v TNT Australia Pty Ltd T/A TNT Express[29] (hereafter "Alcock"), whereby Commissioner Wilson stated at paragraph [44] of his Decision:
"That is, the Physical Demands document is the one that should be seen as establishing minimum thresholds of capability, or to put it another way, the inherent requirements of the position, at least as they relate to the physical fitness of a given employee. When TNT Express require a driver to be able to safely lift 40 kg from floor to waist height; up to 30 kg from waist height to shoulder height; and up to 20 kg from shoulder to above shoulder height, and cannot guarantee a driver will not be required to do those things, the effect of its requirement is not to say that a driver must be able to lift to these capacities that on a very high frequency, but rather its effect is to say that these are lifting limits that a driver must be able to withstand in the course of an ordinary or routine shift. A driver is expected to be able to pick up and deliver, for the vast majority of their time on their own, parcels that fall within those limits." (my emphasis)
[39] As observed in Alcock, the Respondent may not have been required to lift certain freight frequently. However, the Respondent was still required to withstand such lifting limits during the course of an ordinary or routine shift. Thus, the frequency of manually handling certain freight was not a basis upon which to conclude that such a task was not an inherent requirement of the role of a Bulk Driver.
[40] As noted in Boag, the Commissioner was required to have regard to the substantive role of the Respondent. In this respect, there is no certainty as to whether the assistance of mechanical or lifting aids will be made available at a customer's site. Despite this uncertainty, the Commissioner still found that the provision of lifting aids formed part of the inherent requirements of the role of a Bulk Driver to accommodate for a "potential limitation".
[41] Having regard to the above extract from Boag, I am satisfied that the Commissioner considered modified duties in concluding what formed part of the inherent requirements of the role of a Bulk Driver. That is, the Commissioner concluded that the Appellant was to reasonably accommodate a "potential limitation" through the provision of lifting aids (modified duties). On this basis, the Commissioner found that the lifting aids were inclusive of the substantive role of a Bulk Driver, despite there being no certainty that such would be available at a customer's site. The Commissioner's assessment of the inherent requirements of a Bulk Driver was always inclusive of whether reasonable accommodations were to be provided to the Respondent. Such a consideration may be relevant if an employee is redeployed to undertake alternative duties, however, it is not the starting point in determining the inherent requirements of a particular role. In doing so, the Commissioner fell into error.
[42] Further, the Commissioner also erred in relation to the total number of kilograms the Respondent was required to lift as part of the inherent requirements of his employment with the Appellant. At paragraph [68] of her Decision, the Commissioner found:
"The evidence before me does not establish that lifting items in excess of 40kgs is an inherent requirement of the job."
[43] In the Physical Demands of Core Positions with TNT document (hereafter "Physical Demands Document"), for example, reference is only made to employees being required to lift "up to 40kg". In particular, in relation to unloading and loading trucks, the following is required:
"Constant lifting, carrying and handling items of different weights, shapes and sizes up to 40kg from ground to waist, 30kg from waist to shoulder and 20kg above shoulder height."
[44] At the hearing on 7 March 2017, the Respondent referred to the following question it posed to Mr Zichy-Woinarski during the hearing on 25 July 2016:
"PN1388: On the basis of that material and the criteria that are set out in the core physical demands document, the only inherent requirement on TNT's view of the world that Mr Martin could not comply with was the requirement to be able to lift 40 kilograms in weight, between floor and waist, without the risk of injury?---So your question was, was the only reason why Mr Martin was deemed not suitable was based on the fact he could not lift more then (sic) 40 kilos from floor to waist?
[45] In relation to the above question posed to Mr Zichy-Woinarski, I note the following observations made by the Respondent during the hearing on 7 March 2017:
"PN181: That is where the first suggestion of it being in excess of 40 kilos comes into play and, unfortunately, I appear to have contributed to the perpetuation of that error by saying, 'Yes.' Mr Zichy-Woinarksi says, 'That's correct.' But on a fair reading of that statement in context with other evidence, Mr Zichy-Woinarksi there was clearly referring to that part of the documentation to which the Full Bench had been taken in which one of the lifting requirements is said to be a capacity to lift up to 40 kilograms between floor and waist.
PN182: In my submission, while the Commissioner below appears to have adopted that expression as being in excess of 40 kilograms, she was also in her decision referring to what I would call the 40 kilogram limit as properly expressed in the respondent's documentation ..."
[46] I note that the Respondent conceded that the reference to lifting more than 40kg in the question posed to Mr Zichy-Woinarski during the hearing on 25 July 2016 was erroneous. Nevertheless, the Commissioner adopted the reference of "lifting items in excess of 40kg" in her Decision. The Respondent's submission at PN182 implies that the Commissioner inadvertently referred to the notion of lifting "in excess of" 40kg, as opposed to lifting "up to" 40kg. Such an assertion cannot be accepted, particularly in circumstances where the Commissioner explicitly concluded lifting items in excess of 40kgs was not an inherent requirement, which formed part of the basis for her finding that the Appellant could perform the inherent requirements of a Bulk Driver. As such, I am satisfied that the Commissioner erred in this regard.
[47] Further, I also note at paragraph [70] of the Decision, the Commissioner found that:
"The medical evidence establishes that the applicant is able to lift at least 25 kilograms and it has been recommended that he return and undertake appropriate work hardening."
[48] The Commissioner referenced Dr Christopher Cunneen's medical reports dated 30 October 2015 and 25 November 2015 at footnote 48 of her Decision in reaching this conclusion. However, this footnote refers to Dr Christopher Cunneen's Supplementary Fitness for Work Assessment and Report dated 25 November 2015, which states:
"I have opined, should Mr. Martin be required to lift more than 20kg unaided ... this activity would be associated with significant risk of further work-related aggravations or exacerbations of his pre-existing degenerative lumbar spine (Lumbar Spondylosis)."
[49] Thus, it is clear that the medical evidence of Dr Cunneen referenced and relied upon by the Commissioner did not establish that the Appellant was able to lift at least 25kg. Rather, the medical evidence of Dr Cunneen stipulates that if the Appellant were to lift more than 20kg unaided, this would pose significant risks of further work-related aggravations to his pre-existing lumbar spondylosis. As such, the Commissioner erred in reaching this conclusion which formed part of the basis upon which she found that the Appellant could perform the inherent requirements of a Bulk Driver with the Respondent.
[50] Noting the above errors, I am satisfied there is an appellable error in the House v The King sense. Having identified that the Commissioner, in my view, erred in exercising her discretion in accordance with House v The King by allowing extraneous or irrelevant matters to guide or affect her, I am satisfied that the appeal must be upheld.
[51] Accordingly, permission to appeal is granted.
[52] The appeal is upheld.
[53] The matter is referred to another member of the Commission to rehear the matter.
Decision of Deputy President Gooley & Commissioner Bissett
[54] TNT Australia Pty Ltd have appealed the decision[30] of Commissioner Spencer where she found that Mr Stephen Martin was fit to perform the inherent requirements of his role as a bulk driver and that he was able to return to work. This decision was stayed pending the outcome of the appeal.
[55] It was not in disputed before the Commissioner that Mr Martin had a back injury in 2005. Mr Martin said it was a prolapsed disc. He had surgery in 2006 and was certified fit to return to work in 2006. Mr Martin gave evidence that he had no further issues with his back injury.[31] He suffered a further but unrelated back injury in 2010 and that injury was resolved.
[56] Mr Martin had suffered an injury to his knee in 2014 and had been stood down from work. He was advised in 2014 that he would not be able to return to work until he provided a medical clearance that he could fulfil the complete duties of his role. He had a total knee replacement in April 2015 and sought to return to work in September 2015 having obtained a medical clearance. TNT advised Mr Martin at this time that they required a further assessment to ensure he could return to his normal role. He was required to undertake a functional assessment and a fitness for duties assessment.
[57] As a result of those assessments TNT concluded that it had reasonable concerns about Mr Martin's ability to safely carry out the inherent requirements of his role. On 14 January 2016[32] TNT sent Mr Martin a letter outlining its concerns about his fitness for duties.
[58] In particular the letter noted that the assessment results reported:
A lift limit of 20 kg is required to perform the inherent requirements of [his] role as a Bulk Driver.
[He was] unfit to perform [his] usual duties as a PUD Driver (including Bulk) as [he is] unable to perform the work unrestricted.
3. There is a risk of further injury or exacerbation of [his] underlying lumber spine condition with some of the heavy and more awkward aspects of the lifting requirements.[33]
[59] The letter also advised that:
"Due to the nature of TNT's freight profile, TNT reasonably requires PUD Drivers and Dockhands to be able to lift the following weights:
(a) 40kgs floor to waist;
(b) 30kgs waist to shoulder;
- (c) 20kgs above shoulder.
The results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT."[34]
[60] On 8 March 2016 the TWU notified a dispute to the Commission under clause 12 the dispute resolution procedure in the TNT-TWU Fair Work Agreement 2014-2017. The parties agreed that the questions for determination were:
"1. Is Mr Martin fit to perform the inherent requirements of the role of Bulk Driver with TNT?
2. Should the Applicant be returned to his role immediately with appropriate 'work hardening' as recommended by Dr Christopher Cunneen Occupational Physician?"[35]
[61] Mr Martin, Mr Greg Delamotte, a bulk delivery driver with TNT, and Dr Josh Munn, a Specialist Occupational Physician, gave evidence on behalf of Mr Martin.
[62] Mr Trent Seers, the TNT Hub Operations Manager, Mr Chris Zichy-Woinarski, the TNT General Manager Workplace Risk and Dr Christopher Cunneen, an Occupational Physician gave evidence on behalf of TNT.
[63] Upon consideration of the material before her the Commissioner answered both of the questions for determination in the affirmative.
[64] The Fair Work Commission will grant permission to appeal only if it is in the public interest to do so.[36] The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.[37] In GlaxoSmithKline Australia Pty Ltd v Colin Makin,[38] the Full Bench summarised the test for determining the public interest as follows:
"[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O'Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case."
[65] Alternately, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[39]
[66] We note that the decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the Commissioner's original Decision. As the High Court said in House v The King[40]:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
[67] TNT submitted that the Commissioner incorrectly applied the relevant principles in determining the inherent requirements of the role of Bulk Driver with TNT. Further it submitted that the Commissioner misunderstood and, in a number of instances, did not consider the evidence about the role of Bulk Driver in the context of TNT's operations; erred in her assessment of Dr Cunneen's evidence and in finding that the medical assessment undertaken by Dr Cunneen was unfair to Mr Martin; improperly relied on the concerns of other practitioners with the effect that TNT was prejudiced and denied TNT procedural fairness in respect of the determination.
1. Inherent Requirements of the Role of Bulk Driver with TNT- appeal grounds 1, 2 and 7
[68] In considering the inherent requirements of the position, the Commissioner considered extensive TNT documentation[41] and the submissions of both TNT and Mr Martin as to the approach to be taken in determining the inherent requirements. She considered the approach in Boag and the views expressed in Alcock.
[69] The Commissioner observed that:
"The determination of the inherent requirements of a position requires an analysis not only of the terms on which a person has been employed, but the job they do, how they perform it at the workplace and the organisation within which the job is performed (there was a volume of evidence on these matters)."[42]
[70] She then set out an extract from Christie. In our view the Commissioner properly concluded that the correct approach to determining inherent requirements, based on Christie, was to:
"objectively determine what the inherent requirements of a position are on a consideration of the evidence which includes the terms on which a person is employed, the job that they undertake as well as relevant surrounding circumstances."[43]
[71] She also, in our view, properly rejected the proposition put by TNT that she should accept its assertion as to the inherent requirements of Mr Martin's position.[44] In this regard we consider that she properly approached the matter to be determined in circumstances where there was no agreement between the parties as to the inherent requirements of the position.
[72] In relation to the surrounding circumstances the Commissioner:
recognised that 90% of freight delivered and picked up by a Bulk Delivery Driver is palletised (and hence, implicitly 10% is net) and that more is picked up and delivered to commercial premises where there is access to manual handling equipment.
• accepted the evidence of witnesses for TNT[45] which "supported the capability of [Mr Martin], to perform the duties of his role; that is the lifting of freight and/or utilising the available equipment associated with lifting the freight."[46]
"(n) if a driver assessed a 40 kg item as too heavy or awkward to handle, TNT encouraged the driver to seek assistance and there would be no repercussions;
(o) every employee is managed in accordance with their personal circumstances and medical requirements and TNT ensures that employees can safely perform the inherent requirements of their roles;
(p) the overriding rule was that TNT's requirements were subject to safe manual handling procedures"(Endnotes omitted)
• further, she accepted the evidence of Mr Zichy-Woinarski that "the safety of an unassisted lift was a matter of self-assessment by the driver, and importantly he also stated that "the driver's self-assessment of their comfort and what he was safely able to lift was an overriding safety mechanism"."[47] [Endnote omitted]
• that at times drivers are required to break down pallets but that it is up to drivers to determine for themselves if they are able to safely lift an item. In considering this matter the Commissioner implicitly recognised that in making such an assessment a driver would have to lift an item.[48]
[73] In these matters we consider that the Commissioner did give proper and due consideration to the relevant surrounding circumstances.
[74] In her findings at [57], the Commissioner said:
"The assessment must take into account; the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices."
[75] We do not consider that the use of the term "reasonable accommodations" is a specific reference to Mr Martin. The case for Mr Martin was not put on the basis that he could perform the inherent requirements of the position with reasonable adjustments as the term is used in the Disability Discrimination Act 1992. On this we note that there was reference to the Disability Discrimination Act 1992 in the proceeding below however it was acknowledged by Mr Martin's representative below that this was not a discrimination case.[49]
[76] There was no evidence before the Commissioner that for Mr Martin to perform the inherent requirements of the position he would require any alternation to the way work was required to be performed by TNT.
[77] The "reasonable accommodations" referred to by the Commissioner were the lifting aids and other manual handling procedures and practices provided and/or endorsed by TNT. These accommodations were available to all bulk drivers. The Commissioner correctly had regard to these matters as the evidence before her of the surrounding circumstances in which the job was performed.
[78] The Commissioner further made reference in her decision to accommodating Mr Martin in reference to a "potential limitation."[50] This was not a reference to an actual limitation but rather to the limitation that might arise from the assessment required to be undertaken by a bulk driver of the risk in relation to the lifting of any item. Given her assessment of the medical and other evidence it is clear that the Commissioner was not satisfied that Mr Martin currently had an existing limitation.
[79] We do not discern any error in the approach of the Commissioner to the determination of the inherent requirements of the position. The Commissioner properly identified the relevant law and considered the submissions and evidence before her in accordance with it. Critical to her conclusions was TNT's evidence about how work was performed. She properly had regard to the Driver's Handbook and the Core Positions Document. In addition she had regard to the evidence of Mr Martin and Mr Delamotte. We are satisfied that the Commissioner's conclusion about the inherent requirements of the position was reasonably open to her on the evidence and there is no appealable error in her approach.
2. Core Physical Demands Document and lifting restrictions applying to Mr Martin. - Grounds 3, 4, 5, 6 and 8.
[80] The Commissioner found that lifting items in excess of 40kg was not an inherent requirement of Mr Martin's job and that for any item over 20kg it is presumed or preferred that individual drivers assess the item and take appropriate steps to manage the risk. We accept that this reference to "in excess of 40kg" is not an accurate description of the Core Physical Demands Document which refers to "up to 40 kg". We note the concession by the Appellant that this error arose from a question put by TNT to its witness. However we do not consider that this error impacted on the Commissioner's decision.
[81] It was submitted that the Commissioner misunderstood the Core Positions Document. We do not agree. The Commissioner had regard to it but it was not the only evidence she considered. The Commissioner considered the evidence called by Mr Martin but importantly she had regard to the evidence given on behalf of TNT as well as TNT's drivers' manual. The Commissioner concluded that despite the lift requirements set out in the Core Positions Document these were not the requirements in practice.[51] We are satisfied that this finding was open to the Commissioner on the evidence before her.
[82] We do not accept the submission that the Commissioner confined the Core Positions Document to the pre-employment assessment stage. So much was recognised by the Commissioner at paragraph [77] of her decision. The Commissioner then noted that Mr Martin's assessment differed to that of a pre-employment assessment in that TNT knew that Mr Martin had been performing the inherent requirements of his position for the 8 years prior to his knee reconstruction. He had done so with the back condition it now relied upon to suggest he could no longer perform the inherent requirements of the position.
[83] We do not accept the submission that the Commissioner's assessment of the inherent requirements of the job was based on the subjective views of the employee witnesses. The Commissioner had regard to their objective evidence of the work performed along with the evidence of TNT witnesses to reach her conclusions.
3. The decision in Phillip Alcock v TNT Australia Pty Ltd t/a TNT Express -appeal ground 5
[84] It was submitted that the Commissioner did not address or deal with the findings made in this decision. It was submitted that the Commissioner in Alcock correctly identified that the Core Positions Document established the inherent requirements of the position in so far as they relate to the physical fitness of a given employee.
[85] The decision in Alcock was a decision of a single Member of the Commission and was not binding on the Commissioner in this matter. The decision in Alcock concerned a Pickup and Delivery Driver[52] and did not address the inherent requirements of the position of bulk drivers. The Commissioner in Alcock accepted the submissions of TNT that the Physical Demands Document established the minimum thresholds of capability or the inherent requirements of the job in the "overall context of the evidence together with a consideration of the meaning of the term 'inherent requirements of the position'." [53]
[86] The Commissioner in her decision set out the respective positions of the parties in relation to the relevance of Alcock to her considerations. She rejected TNT's submissions on the relevance of Alcock. It was not necessary for the Commissioner to explain why she did not follow Alcock as it is inherent in her decision that she was assessing a different position. When she had regard to all the evidence before her she reached a different conclusion to that reached by the Commissioner in Alcock. We do not consider that she erred in this respect.
4. The Evidence of Dr Cunneen - appeal ground 9,10 and 11
[87] TNT submitted that in rejecting some of Dr Cunneen's evidence the Commissioner ignored or did not appear to properly consider a number of important facts.
[88] The difficulty with this submissions about the medical evidence is that once the Commissioner found that the inherent requirements of the position were not as described by TNT the medical evidence before her supported her findings that Mr Martin could perform the inherent requirements of the position.
[89] However for the sake of completeness we note that we are not able to identify any error in the Commissioner's assessment of the medical evidence.
[90] It was submitted that the Commissioner: did not have regard to the functional assessment and the lifting restrictions which were identified; did not have regard to Dr Cunneen's instructions; did not have regard to the information Dr Cunneen had including his discussions with Mr Martin; and did not have regard to Dr Munn's evidence of the increased risk of lumbar degeneration when a person had undergone a discectomy surgery.
[91] The Commissioner referred to the functional assessment at [71] of her decision. That assessment noted what Mr Martin lifted during the assessment and noted the task was ceased by the assessor as Mr Martin met the lifting requirements. The assessment noted that he lifted 25kgs from floor to waist height but did not want to lift heavier as he was starting to sweat and he would not lift any heavier at work without assistance. There was nothing in that assessment which suggested that, with the work hardening recommended by Dr Cunneen, Mr Martin would not be able to meet the lifting requirements of the position. Further, given her conclusion about the inherent requirements of the position, the functional assessment added weight to her finding that Mr Martin could perform the inherent requirements of the position.
[92] It was submitted that TNT was entitled, given Mr Martin's history and his long absence from work, to have a broader assessment undertaken of his fitness for work. While the Commissioner did criticise the evidence of Dr Cunneen in her decision she did not suggest that TNT was not entitled to assess whether Mr Martin was fit to perform the inherent requirements of the position. Her criticism of Dr Cunneen was based on the change in the assessment offered by him to TNT; the alteration of his report in his oral evidence and the fact that he made a diagnosis of Mr Martin's back based on a conversation with Mr Martin about his back condition of which Mr Martin had no forewarning. As the Commissioner noted had Mr Martin been forewarned he could have provided Dr Cunneen with relevant medical information.[54] In particular Dr Cunneen would have received advice that Mr Martin had not been diagnosed with lumbar spondylosis and he had not suffered a recurrent work related injury in relation to his back.[55]
[93] We are not satisfied that the Commissioner erred in her finding that the assessment was unfair. We consider that the Commissioner used this language to call into question the legitimacy of the assessment given it was made without Dr Cunneen having all the relevant medical information before him. Further we do not consider that that lack of legitimacy could be cured by Mr Martin calling his own medical evidence before the Commission.
[94] Further, we are not satisfied that the Commissioner erred when she rejected Dr Cunneen's oral evidence about 40kg weights. In the circumstances the Commissioner assessed the totality of his evidence on this point and found Dr Cunneen's evidence unconvincing. This conclusion was reasonably open to her and we are not satisfied that she erred in making that assessment.
[95] The Commissioner had regard to totality of the medical evidence. Given her findings about the inherent requirements of the position the evidence was not inconsistent with her conclusion that Mr Martin could in fact perform the inherent requirements of the position.
5. Concerns of other practitioners -appeal ground 12
[96] Given our conclusion that the Commissioner did not err in her assessment of the inherent requirements of the position, this appeal ground falls away.
[97] The matter before the Commissioner was concerned with whether Mr Martin could perform the inherent requirements of the position of bulk driver.
[98] We have found that the Commissioner applied the correct approach to determining what the inherent requirements of the position were. She then applied the facts to the law and determined that Mr Martin could perform the inherent requirements of his position and that, with a graduated return to work, he should be returned to his position. We are satisfied that the factual findings made by the Commissioner were available to her on the evidence before her.
[99] As this matter turns on its own facts, we are not satisfied that the matter raises issues of importance and general application, that there is a diversity of decisions at first instance so that guidance from the Full Bench is required, or that the decision at first instance manifests an injustice, or that the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. We are further not satisfied that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.
[100] Accordingly we do not grant permission to appeal and the appeal is dismissed. The stay order issued in this matter is set aside.
F. Parry, of Queen's Counsel, and B. Rauf, of Counsel, for the Appellant.
[2] (1998) 193 CLR 280, [82].
[5] Transcript at PN1388-PN1389, AB tab 2 page 151.
[6] See annexure CZW-6 to the affidavit of Chris Zichy-Woinarski, AB tab 13 pages 694-698.
[8] Affidavit of Stephen Martin affirmed 12 May 2016 (first Martin affidavit) at paragraph 5, AB tab 7 page 318; affidavit of Greg Delamotte affirmed May 2016 (first Delamotte affidavit) at paragraph 4, AB tab 9 page 462; affidavit of Trent Seers sworn 9 June 2016 (Seers affidavit) at paragraph 7, AB tab 12 pages 621-622.
[9] Decision at [68], AB tab 2 page 26.
[10] Transcript at PN1427-1432 (Zichy-Woinarski), AB tab 3 pages 154-155; PN2126-2133 (Seers), AB tab 4 pages 220-221.
[11] Transcript at PN1433 (Zichy-Woinarski), AB tab 3 page 154; PN2134-2135 (Seers), AB tab 4 page 221.
[12] Annexure SM-1 to first Martin affidavit, AB tab 7 page 329.
[13] Annexure SM-2 to first Martin affidavit, AB tab 7 page 339, annexure GD-8 to first Delamotte affidavit, AB tab 9 page 488.
[14] Transcript at PN2174-2183, AB tab 4 page 224.
[15] Transcript at PN2208-2209, AB tab 4 pages 226-227.
[16] Transcript at PN1662, AB tab 4 page 178.
[17] Report of 30 October 2015, AB tab 17 page 785.
[18] Report of 25 November 2015, AB tab 18 at page 788.
[19] Report of 25 November 2015, AB tab 18 page 788; report of 20 June 2016, AB tab 19 page 792.
[20] Transcript at PN2027-2033 and PN2056-2060, AB tab 4 at pages 211-212, 214.
[21] Fair Work Act 2009 (Cth) s 604(2).
[22] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].
[23] [2010] FWAFB 5343, [27].
[24] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].
[32] AB 372 (note that letter was reissued on 4 March).
[36] Fair Work Act 2009 (Cth) s 604(2).
[37] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].
[38] [2010] FWAFB 5343, [27].
[39] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].
[41] [2017] FWC 440 at [22] - [36].
[51] [2017] FWC 440 at [69].
[52] [2014] FWC 9120 at [2] and Appellant's outline of submissions at [35].
[53] [2014] FWC 9120 at [43]- [44].
[54] [2017] FWC 440 at [73].
Printed by authority of the Commonwealth Government Printer
TNT Australia Pty Ltd T/A TNT
Stephen Martin [2017] FWCFB 1510
(1989) 168 CLR 210
(2010) 195 IR 292
(1998) 193 CLR 280
(2000) 200 CLR 177