Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 3122 of Commissioner Harper-Greenwell at Melbourne on 29 June 2021 in matter U2020/10790 - permission to appeal refused.

[1] Mr William Eskander (the Appellant) lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required against a decision[1] (the Decision) and order[2] of Commissioner Harper-Greenwell (the Commissioner) issued on 29 June 2021, dismissing the Appellant's application for an unfair dismissal remedy made pursuant to s 394 of the Act. The Appellant contended he had been unfairly dismissed by Visy Board (the Respondent).

[2] In the Decision, the Commissioner found that the Appellant was dismissed for a valid reason, being his inability to perform the inherent requirements of his role and that his termination was not harsh, unjust or unreasonable. Accordingly, the Commissioner dismissed the Appellant's application.

[3] Directions were set for the filing of material by the Appellant and the Respondent regarding permission to appeal and also the merits of the appeal. The matter was subject to a telephone hearing on 30 August 2021. Both parties sought permission to be legally represented, and following there being no objection by either party, permission was granted pursuant to s 596(2)(a) of the Act.

[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal. For the reasons that follow, permission to appeal is refused.

[5] The Commissioner commenced her decision by outlining the evidence and submissions before her. The Appellant filed a witness statement and gave evidence on his own behalf. On behalf of the Respondent, Dr Ralph Poppenbeek, Specialist Occupational Physician, Dr Craig Staunton, Exercise Scientist and Mr John Tsourou Operations Manager Preprint/Coatings at Visy each filed witness statements and gave evidence.

[6] The Appellant was employed with the Respondent from November 1996 until his dismissal on 28 July 2020. Prior to his dismissal, the Appellant was employed as a qualified Printer at the Respondent's Pre-Print plant. As will become apparent, it is important we set out the requirements of the Appellant's role as summarised by the Commissioner:[3]

"[10] Prior to his dismissal Mr Eskander had worked at the Pre-Print plant since November 1996. He generally worked either mornings from 7:00am to 3:00pm or afternoon shifts from 3:00pm to 11:00pm. The Pre-Print plant has a total of four printing machines and each machine is operated by a crew of three employees: one qualified Printer who has completed four years of trade school and two Trade Assistants who assist the printer in getting the machines up and running. Mr Eskander's role was that of a qualified printer and he operated a print machine called the Chadwick (or, "Old 108"). The print machines are between 30 and 50 meters long and up to two or three stories high. Mr Eskander was assisted in his role by two trades assistants.

[11] At times Mr Eskander was required to operate a crane or a forklift moving and loading reels of product into machinery for printing. Mr Eskander was responsible for setting up the printing machines at the start of his shift, checking for paper breaks, rectifying any defects, monitoring print quality and production quantities. In his role, Mr Eskander was at times required to use physical exertion to manoeuvre machinery components. Mr Eskander's role was not sedentary, it involved some physical capability which included bending over and jolting machines, he was required to walk up and down the machines, squat at times, climb and crawl around the machines and climb up and down stairs. Mr Eskander was also required to push a trolley with ink drums at least once a day to once per week for about 150 to 200 meters. Mr Eskander would generally be on his feet for periods of up to 6 hours per shift.

[12] There were also times when Mr Eskander was required to lift buckets of ink up to 15kg in weight. Mr Eskander would on occasion fill 44-gallon drums which were then loaded into the machines. The 44-gallon drums are usually on wheels and are pushed to the required location however a forklift was sometimes used to move the drums. Mr Eskander would also be assisted in these tasks by the trades assistants. During his employment Visy held no concerns about Mr Eskander's work ethic or performance and generally considered him to be hard-working."

[7] In September 2018, the Appellant sustained an injury to his ankle whilst overseas on holiday. Upon his return to Australia, the Appellant undertook rehabilitation and physiotherapy, and his foot was immobilised in a moon boot for a period of four months. Approximately 10 months after sustaining the injury to his ankle, the Appellant's General Practitioner, Dr Sheriff, referred him to Dr Hamish Curry an Orthopaedic Surgeon. Dr Curry produced a report, noting inter alia that he had formed an impression that the Appellant would not harm his ankle by attempting to return to work.

[8] The Appellant continued to present medical certificates from Dr Sheriff certifying that he was unfit for work. On 19 September 2019, the Appellant produced a medical certificate of the same date which deemed him unfit for his usual duties until 19 December 2019. However, this certificate stated that the Appellant was able to perform alternative duties on a trial basis but could not undertake unrestricted work due to his ongoing ankle pain.

[9] Subsequent medical certificates presented by the Appellant continued to state he was unable to perform his usual occupation however he could perform alternate light duties on a trial basis.

[10] On 11 December 2020, the Appellant was directed by Mr Tsourou the Operations Manager Preprint/Coatings to attend an independent medical examination conducted by a Specialist Occupational Physician, Dr Ralph Poppenbeek. Dr Poppenbeek was tasked with assessing whether the Appellant was fit to perform his usual duties.

[11] Dr Poppenbeek produced an assessment report dated 20 December 2019 (the First Report). Relevant to this appeal, the First Report stated that, at the time of writing, Dr Poppenbeek had not received any documentation or radiology reports from the Appellant who had previously undertaken to provide them to the Respondent or Dr Poppenbeek. Ultimately, the First Report concluded that Dr Poppenbeek was unable to make a conclusive diagnosis regarding the Appellant's injury and, given the extent of time he had been off work (2 years) Dr Poppenbeek was not comfortable returning the Appellant to full duties without a more objective evaluation of his physical function.

[12] Mr Tsourou then advised the Appellant that the Respondent required him to attend a functional capacity evaluation (FCE) with Acumen Health. The FCE was conducted by Dr Staunton on 28 February 2020. The evidence provided by Dr Staunton is outlined below:[4]

"[36] On 23 March 2020, Acumen Health provided Visy with a report detailing its findings from the FCE conducted on 28 February 2020. In summary, Dr Staunton reported that Mr Eskander continued to suffer from minor symptoms and pain related to his ankle injury. He reported that Mr Eskander had not reached his full physical capacity and instead self-limited his capacity for lifting a 10kg mass from the floor to his waist; waist to shoulder height as well as pushing and pulling and carrying. Dr Staunton reports that Mr Eskander had stated he was apprehensive about re-injuring his ankle should he attempt a greater lifting load. Mr Eskander also self-limited his overhead lifting at 5kg again providing the reason that he was feeling apprehensive about re-injuring as the reason for ceasing the test."

[13] Furthermore, Dr Staunton reported that he had formed the belief that with increased confidence and support, the Appellant would be able to perform his pre-injury duties and hours and recommended a gradual return to work plan. Dr Staunton did however conclude that the Appellant's apprehension and low confidence in his ankle stability formed a barrier to his capacity to perform his pre-injury duties.

[14] The Appellant denied that he ever self-limited during the FCE. Before the Commissioner, he gave evidence that he completed the tasks that were asked of him by Dr Staunton.

[15] On 2 April 2020, Dr Poppenbeek was provided the FCE report prepared by Dr Staunton and he subsequently provided a number of supplementary reports to the Respondent. Ultimately, Dr Poppenbeek formed the view that the Appellant was not capable of performing his pre-injury duties unrestricted without further risk of injury or aggravation to his ankle. Dr Poppenbeek also felt that it was not possible for the Appellant to have a gradual return to work, having formed the view that there were not any duties that could be performed by the Appellant that would facilitate a safe return to work.

[16] On 17 July 2020 Mr Tsourou sent a letter to the Appellant informing him that, based on the medical information provided, the Respondent was considering terminating his employment on the basis that he could no longer perform the inherent requirements of his job. The Appellant was invited to attend a meeting on 28 July 2020. He was invited to bring a support person and any information for the Respondent to consider before it made its final decision.

[17] On 28 July 2020 the Appellant attended a meeting and provided his responses to the Respondent. Subsequently, the Appellant's employment was terminated at that meeting and confirmed by letter dated 28 July 2020.

[18] The Commissioner then turned to consider whether there were any alternative or light duties the Appellant could have performed. Neither the Appellant nor his medical practitioners attempted to identify any details about what alternative or light duties the Appellant was capable of performing. Dr Poppenbeek gave evidence that he was not requested to identify alternative or light duties but had himself formed the view that the work environment was rigid and not amenable to light or alternative duties. Dr Staunton recommended a graduated return to work, however he made no recommendation about the type of work that the Appellant could perform.

[19] Mr Tsourou gave extensive evidence that he and his leadership team could not identify any alternative or light duties which the Appellant could have performed. We will not repeat his evidence here.

[20] The Commissioner then considered whether the Appellant's dismissal was harsh, unjust or unreasonable in accordance with the criteria set out in s 387 of the Act. Regarding valid reason, the Commissioner found the following:

• The Appellant was not capable of performing the inherent requirements of his role at the time of dismissal.

• There were no reasonable adjustments that could be made to the Appellant's role to allow him to return to work.

• The Appellant was not able to perform the inherent requirements of his role at some future date.

[21] The Commissioner then considered subsections 387(b) - (h) of the Act and ultimately found that the Appellant was not unfairly dismissed. Accordingly, his application for an unfair dismissal remedy was dismissed.[5]

[22] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal - of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a 'significant error of fact' (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[23] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[6]

[24] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

The Appellant's grounds of appeal, as contained in his F7 Notice of Appeal are as follows:

"1 The Commissioner erred in her finding at paragraph [36] that Mr Eskander had 'self_-limited his capacity for lifting a 10 kg mass_' at the Functional Capacity Evaluation

(a) the evidence was that Mr Eskander had no difficulty with lifting 10 kg but was

alleged to have 'self-limited' in not lifting 20 kg;

(b) there was insufficient evidence (given the absence of a position description or any occupational analysis) to support any finding that the inherent requirements of Mr Eskander's position required the lifting of 20 kg, or alternatively, more than 10 kg; and

(c) the finding was not reasonably open on the evidence before the Commission.

2 The Commissioner erred in her approach at [81], in that having correctly found that 'the evidence does not support' the assumption of Dr Staunton that 'Mr Eskander was required to lift and carry weights of up to 20 kg', she should have concluded that:

(b) it was unfair of the Respondent to proceed to termination of employment

without arranging for a further FCE to be conducted; and

(c) it was of no consequence that Mr Eskander was alleged to have 'self limited' in

not proceeding to lift a 20kg weight, given the safety risk posed by lifting such a

3 The Commissioner erred in her findings at [82], in that the conclusion that 'Mr Eskander chose not to perform certain tasks during the assessment because he was concerned about potentially aggravating his injury' was not reasonably open on the evidence.

4 The Commissioner erred in her findings at [84], in that a finding that 'Dr Poppenbeek formed the view that it didn't really matter how Mr Eskander performed in the FCE' was not reasonably open on the evidence, and the Commissioner should have found that Dr Poppenbeek's reports were rendered unsafe by their reliance on the FCE report, and by the incorrect assumptions upon which Dr Poppenbeek's reports were based.

5 The Commissioner erred in her findings at [86], by stating that 'Mr Eskander contested both Dr Poppenbeek and Dr Staunton's without providing any medical evidence to the contrary', which overlooked the unchallenged evidence of Dr Sheriff who the Respondent chose not to cross-examine.

6 The Commissioner erred in her findings at [90] in concluding that 'Mr Eskander failed to provide sufficient evidence as to what sort of adjustments could be made to his role' as:

(a) such a finding fails to give any, or sufficient, weight to the evidence of Dr Poppenbeek that Mr Eskander could currently return to work, with the measures noted by Dr Poppenbeek;

(b) such a finding fails to give any, or sufficient, weight to the evidence of Dr Staunton (who recommended a gradual return to work plan) and Dr Sheriff (who recommended light duties on a trial basis);

(c) such a finding placed undue reliance on the lay opinion of Mr Tsourou (recorded at [91]) regarding the absence of adjustments that could be made to Mr Eskander's role; and

(d) such a finding placed an unfair onus on Mr Eskander, given that the Respondent had specialist employees in workplace rehabilitation to design, implement and monitor any such return to work.

7 The Commissioner erred in paragraph [98] concerning the termination of

(a) the Respondent had denied Mr Eskander procedural fairness in failing to inform Mr Eskander of his need to obtain a medical clearance to return to work prior to that meeting; and

(b) the evidence does not support the conclusion that the Respondent considered the response from Mr Eskander.

8 The Commissioner erred in her finding at [109] in determining that the termination of

employment was not harsh, unjust or unreasonable, in that:

(a) the Commissioner has failed to consider any factors under section 387 other than the alleged validity of the reason for dismissal, in assessing whether the termination of employment was harsh, unjust or unreasonable, and has failed to give any, or sufficient, weight to the factors in section 387(b) to (h) of the Act;

(b) the Commissioner has not considered (beyond a recital of the submissions at [103]) the availability of steps other than termination of employment, including further medical examination, further FCE, return to work (whether without restriction or subject to adjustments), or re-deployment;

(c) the Commissioner has not considered (beyond a recital of the submissions at [105]) Mr Eskander's length of service, age, or limited re-employment prospects; and

(d) such a finding was not reasonably open, and to the extent that her conclusion involved the exercise of a discretion, such discretion miscarried.

The errors referred to in Grounds 1, 3, 4, 5 and 6 above constitute significant errors of fact."

[25] Grounds 1, 2 and 3 of the Appellant's submissions challenge the Commissioner's evaluation of the FCE report, contending that the Commissioner erred in a number of ways.

[26] We do not accept the Appellant's contentions that the Commissioner erred in finding that he self-limited during the FCE. In the proceedings at first instance, Dr Staunton and the Appellant gave conflicting evidence regarding whether or not the Appellant self-limited during the FCE. The Commissioner set out at [81] - [82] of the Decision her reasons for preferring Dr Staunton's evidence over that of the Appellant. It was reasonably open to the Commissioner to prefer the evidence of Dr Staunton - we reject the Appellant's contention that it was not reasonably open for the Commissioner to find that the Appellant self-limited during the FCE.

[27] Ground 2 of the Appellant's submissions seeks to invalidate the whole of Dr Staunton's FCE report on the basis that he conducted the FCE on the mistaken assumption that the Appellant was required to lift and carry weights up to 20kg. The Appellant points to paragraph [81] of the Decision in which the Commissioner found that the Appellant was required, at a maximum, to lift and carry items weighing up to 15kg.

[28] Whilst we are satisfied that Dr Staunton was incorrect in his assumption that the Appellant was required to lift weights of up to 20kg as part of his role, we do not accept that proceeding on this mistaken assumption invalidates the entirety of the findings in the FCE report. Even if we were to accept that Dr Staunton's FCE report was unsafe and unreliable, this would not be fatal to the Commissioner's finding that there was a valid reason for the Appellant's dismissal.

[29] At paragraphs [84] - [86] of the Decision, the Commissioner set out her reasons in reaching a conclusion that a valid reason for the Appellant's dismissal existed. In particular at paragraph [84], she expressly identifies Dr Poppenbeek's evidence that radiological scans belatedly provided to him by the Appellant "overrode"[8] the results in the FCE report. Furthermore, Dr Poppenbeek formed the view that it "didn't really matter how Mr Eskander performed in the FCE".[9]

[30] Even if we were to accept, and we do not, the Appellant's contentions that he did not self-limit during the FCE and that the FCE report is wholly unsafe and unreliable, this would be of no help to the Appellant. The FCE report did not materially impact upon Dr Poppenbeek's conclusions that the Appellant was not fit to fulfil his pre-injury role.

[31] For the above reasons we dismiss grounds 1, 2 and 3 of the appeal.

[32] Given our findings above, ground 4 of the appeal can be quickly disposed of. The Appellant seeks to invalidate Dr Poppenbeek's conclusions regarding the Appellant's inability to return to his pre-injury role. The Appellant contends that the observations in the FCE resonated throughout the subsequent medical reports provided by Dr Poppenbeek. We do not accept this contention. Dr Poppenbeek gave evidence that he reached his conclusions when he was finally provided with radiological scans by the Appellant and it was these scans which led to his conclusions provided in the medical reports. It was reasonably open to the Commissioner to accept the evidence of Dr Poppenbeek and we find no error in her doing so.

[33] In essence, ground 4 is an attempt by the Appellant to invalidate the findings reached by Dr Poppenbeek on a vague assertion that the FCE report resonated through the subsequent reports of Dr Poppenbeek. There is no basis upon which to accept such a contention - Dr Poppenbeek provided cogent evidence that his conclusions were informed by the Appellant's radiological scans.

[34] We reject ground 4 of the appeal.

[35] Ground 5 of the appeal contends that the Commissioner erred in finding at paragraph [84] of the Decision that the Appellant contested both Dr Poppenbeek and Dr Staunton's evidence without providing any medical evidence to the contrary. The Appellant contends that he did in fact provide medical evidence to challenge the evidence of Dr Poppenbeek and Dr Staunton in the form of letters provided by Dr Sheriff, his General Practitioner.

[36] The Appellant points to a letter, dated 18 August 2020 provided by Dr Sheriff which states inter alia that the Appellant's condition is improved and recommended he return to modified duties on a trial basis, in line with previous recommendations made by Dr Sheriff. As the Respondent rightly contends, this letter was provided after the Appellant's dismissal and as such was not relevant to the Commissioner's assessment. Otherwise, the medical evidence provided by the Appellant does no more than state that the Appellant was unfit to continue his pre-injury role and that he was able to perform alternate light duties. No alternate light duties are identified in the Appellant's medical evidence.

[37] The Appellant's medical evidence provided prior to his dismissal was not inconsistent with the findings of Dr Poppenbeek. Dr Poppenbeek expressed the view that the Appellant could not perform his usual duties, in line with the medical evidence provided by the Appellant. It was never contested that the Appellant could not fulfil his pre-injury role, the issue at the heart of the matter below was whether or not adjustments could be made to allow the Appellant to return to work. The medical evidence of the Appellant does not provide an answer to this issue - even if the Appellant is correct in his assertion that the Commissioner failed to consider the evidence, she would have reached the same conclusion.

[38] We reject ground 5 of the appeal.

[39] Ground 6 contends that the Commissioner erred in concluding that the Appellant failed to provide sufficient evidence as to what sort of adjustments could be made to his role. The Appellant contends that the Commissioner placed the onus upon him to provide a return-to-work plan and further contends that there was sufficient material available before her to identify the required adjustments. Furthermore, the Appellant takes issue with the Commissioner's reliance on Mr Tsourou's evidence that no reasonable adjustments could be made to accommodate a return to work for the Appellant.

[40] We do not accept the Appellant's contention that the evidence before the Commissioner identified suitable adjustments that could be made. Indeed, the evidence of Dr Poppenbeek in his report of 26 June 2020 provides as follows:

"It does not appear to me from inspecting the workplace and talking to officials at the workplace, that accommodations can be made to compensate for medical restrictions. However, if Visy can provide work for Mr Eskander within the restrictions recommended in the answer to the previous question, then this would enable Mr Eskander to return to work at this plant"

[41] Contrary to the Appellant's assertion, it is plain that Dr Poppenbeek stopped far short of providing a "blueprint for a return to work". Dr Poppenbeek's evidence is unequivocal in stating that he is unable to identify alternative duties which the Appellant could perform.

[42] Furthermore, Mr Tsourou gave detailed evidence regarding the reasons why adjustments could not reasonably be made to the Appellant's role in order to allow him to return to work. The Appellant takes issue with the Commissioner accepting Mr Tsourou's evidence, asserting that Mr Tsourou is a layman and that the Appellant's return to work needed to be professionally managed. We are not satisfied that this discloses an appealable error. It was open to the Commissioner at first instance to accept Mr Tsourou's evidence that he and his leadership team were unable to identify any adjustments to the Appellant's role that would allow him to return to work.

[43] We reject ground 6 of the appeal.

[44] Ground 7 of the appeal contends that the Respondent denied the Appellant procedural fairness during the meeting in which he was terminated. The Commissioner sets out her reasoning at paragraphs [94] - [99] of the Decision that led to her conclusion that the Appellant was provided with a reasonable opportunity to respond to the reasons for his dismissal. The Commissioner explicitly found no fault in the Respondent's process.[10]

[45] We find no error in the Commissioner's reasons. Ground 7 is an attempt to advance an argument already advanced in the matter at first instance, which the Commissioner resolved without error.

[46] We reject ground 7 of the appeal.

[47] The Appellant contends by ground 8 of his appeal that the Commissioner erred in finding that the Appellant's termination was not harsh, unjust or unreasonable because she failed to consider the factors contained in ss 387(b) - (h) of the Act. It is the Appellant's contention that the Commissioner focused only on s387(a), whether there was a valid reason, and failed to give due consideration to other matters beyond a mere recitation of submissions in the proceedings at first instance.

[48] We do not accept that the Commissioner failed to consider the factors contained in ss 387(b) - (h) of the Act. On a fair reading of the Decision, the Commissioner has clearly given due consideration to the criteria prescribed in the Act. In particular at paragraphs [102] - [108], the Commissioner outlines the various factors which she took into consideration in determining whether the Appellant's dismissal was harsh, unjust or unreasonable before she makes her final determination at paragraph [109].

[49] Given the above, it is not open to the Appellant to contend that the Commissioner failed to take into account the relevant considerations she was required to by the Act. The Appellant may disagree with the weight placed upon those considerations and the conclusion that the Commissioner reaches from a consideration of all the factors, but this does not amount to an appealable error.

[50] We reject ground 8 of the appeal.

[51] Having considered the Appellant's submissions and all the material filed on appeal, we are not satisfied that the Appellant has identified an arguable case of appealable error. It is clear that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence before her. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) that:

• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

• The appeal raises issues of importance and/or general application;

• The Decision at first instance manifests an injustice, or the result is counter intuitive; or

• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[52] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act.

[53] Permission to appeal is refused.

[1] Eskander v Visy Board Pty Ltd T/A Visy Board [2021] FWC 3122.

[2] PR731147.

[5] PR731147.

[6] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[7] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

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