Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - capacity - application dismissed

• [1] Ziyad Al-Omar has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Al-Omar was employed by Total Logistic Solutions Group Pty Ltd (Total) as a forklift driver at its distribution warehouse in Truganina, Victoria. He was dismissed with effect from 28 March 2025 after Total concluded that he was unable to perform the inherent requirements of his position. Mr Al-Omar contends that he is able to drive a forklift, and that the tasks that he cannot perform are not part of his role.

• [2] In September 2024, Total's performance manager, Serena Paenui, told Mr Al-Omar that she was concerned about his capacity to do his job and asked him to undergo a fitness assessment with Paul Marsh, an occupational therapist employed by Total's insurers. Mr Al-Omar was stood down from work on full pay until further notice. The assessment occurred on 7 October 2025. It involved functionality tests that required Mr Al-Omar to lift weights, squat, bend and reach.

• [3] Mr Al-Omar said that later in October 2024, he received a letter from Total, stating that the company was considering terminating his employment and inviting him to a meeting to discuss this. He was later told that the letter had been sent in error. Mr Al-Omar remained suspended from duty, on full pay, for several months. Then on 28 February 2025 he received a letter from Total's general manager, Bevan Malloy, stating that Total had formed the preliminary view that he was not able to perform all of the functions of his role, that no reasonable adjustments were possible, and that Total proposed to terminate his employment. Attached to the letter was a report from Mr Marsh dated 14 October 2024. The report stated that Mr Al-Omar had difficulty moving between pallets and navigating spaces due to knee pain, that it took effort for him to climb trailers, and that he had difficulty adjusting floors. It concluded that Mr Al-Omar did not have the ability to safely scan stock on pallets, or to adjust the floors in trucks and trailers. Mr Al-Omar attended a meeting on 7 March 2025 at which he told Mr Malloy that he was perfectly able to operate a forklift. On 28 March 2025, Mr Al-Omar received a letter from Mr Malloy which stated that he was dismissed because he could not perform all of the inherent requirements of his job, including scanning stock and adjusting floors on trucks and trailers.

• [4] Mr Al-Omar said that Total had based its assessment of his capacity not on his job as a forklift driver, but on duties that were not part of that job, and that Total had blurred the functions of his job with those of other jobs. He said that scanning items in the warehouse was part of a storeman's role, and while he had always scanned products, he had not been required to scan all of the items in the warehouse twice a day, which was a large amount of work. He said that jumping on trailers and trucks to adjust the floors was for truckdrivers, not forklift drivers. Mr Al-Omar also said that he had never previously been told that there was a problem with his work, and he had been asked to do a lot of overtime. He did not understand why suddenly the company had decided that he was not able to do his job. Mr Al-Omar said that Total had added these extra job requirements to the forklift driver role. He said that he was not able to do these things, and that while other forklift drivers did perform these tasks, this was because they had agreed to do so, whereas he had not, because he was not physically able to do them.

• [5] Mr Al-Omar said that Total did not have a valid reason to dismiss him because he was able to meet the inherent requirements of his job as a forklift driver. He produced a medical certificate from a Dr Samuel Youssef dated 14 March 2025 stating that he was fit for his daily work, and that he should avoid squatting, kneeling and prolonged walking or standing. Mr Al-Omar said that the process that led to his dismissal was unfair because the report of Mr Marsh was not based on medical evidence and was inadequate, including because Mr Marsh had not seen him operate a forklift, and because he was not provided with a qualified interpreter for the assessment with Mr Marsh on 7 October 2024. He said that the process was also defective because he was never warned about any poor performance; the company had not made any effort to return him to work or provide him with modified duties; the response to the occupational assessment was delayed, and during his months off work he was stressed; and he was not given advance written notice of, or agendas for, the various meetings he had with the company. Mr Al-Omar said that he is 67 years old and will have difficulty finding another job. He said that in all the circumstances his dismissal was harsh, unjust and unreasonable.

• [6] Ms Paenui gave evidence that she has been working at Total since it opened in 2019, and that the job of a forklift driver includes tasks other than simply operating the forklift, such as scanning pallets in the warehouse and adjusting floors in trailers, which requires drivers to climb onto them. She said that these tasks are well understood by all forklift drivers. Ms Paenui said that on 18 September 2024, she saw Mr Al-Omar and asked him why he had brought the forklift charger to the other end of the warehouse. He replied that it was hard for him to walk the length of the warehouse. He also said that it was hard for him to get in and out of his forklift. Ms Paenui replied that Total would need to assess what he could and could not do. She said that the company then arranged for Mr Al-Omar to undergo a work assessment with Mr Marsh.

• [7] Mr Marsh's evidence was that during the assessment on 7 October 2024, Mr Al-Omar said that he did not do scanning and that he could not do this because the bar codes were in tight spots that were difficult to scan. Mr Al-Omar also said that he could not adjust the mezzanine floor in trucks and that he did not do this either. Mr Marsh said that based on Mr Al-Omar's presentation, his assessment was that Mr Al-Omar did not have the capacity to scan the stock on the pallets or to adjust the mezzanine floors in the trucks.

• [8] Ms Paenui said that she received Mr Marsh's report on 16 October 2024, and that she then arranged for some testing to be done to ascertain whether the restrictions identified in the report could be accommodated. The testing concluded that this would require Total to employ another person to cover the tasks that Mr Al-Omar could not do. A draft letter to Mr Al-Omar was then prepared, which stated that the company had formed the preliminary view that the restrictions suggested in Mr Marsh's report could not reasonably be accommodated and that this might mean that the company had no alternative but to terminate his employment. It foreshadowed a meeting to discuss the matter. Ms Paenui said that before the letter was finalised, it was accidentally sent to Mr Al-Omar, and that she was then absent for 11 weeks because of serious health problems, but that over this time Mr Al-Omar remained on paid leave.

• [9] Ivan Suto, Total's Truganina site manager, said that the most physically demanding aspect of a forklift driver's work was setting the trailer mezzanine floors, and dealing with pep-trainers and hanger bags, all of which requires a lot of bending and lifting. He said that scanning of pallets was another essential part of a forklift driver's role, and requires bending and squeezing between pallets. Mr Suto said that in or around October 2024, the morning supervisor had told him that there was a problem on the floor because workers were frustrated that Mr Al-Omar was not scanning or attending to 'pep-tainers' and hanger bags, which meant that they had more work to do, and that the workers were asking that the company put on agency staff to cover this work. Mr Suto said that it was clear to him that other workers had been carrying Mr Al-Omar. He said that the problem was not laziness, it was simply that Mr Al-Omar could not do all of his job, and this was impacting all of the other forklift drivers because it created more work for them, which was unfair. Mr Suto also said that Total does not employ any storemen, and that it is not the job of truck drivers to help with loading or unloading their trucks, and that they either remain in their cab, or in the driver exclusion zone.

• [10] Mr Malloy gave evidence that the role of a forklift driver at Total entails the items set out in the position description, including performing daily stock counts, and attending to all warehouse activities in accordance with established procedures. He said that these duties involve scanning and adjusting floors, which Mr Al-Omar acknowledged he could not do. Mr Malloy said that, although it had taken the company some time to deal with the report that had been produced by Mr Marsh in October 2024, this had been because of Ms Paenui's medical absence, and over this time Mr Al-Omar had remained on full pay. Mr Malloy said that on 28 February 2025, he sent Mr Al-Omar a letter stating that Total did not believe that he could perform all of the inherent requirements of his role, because he could not scan the stock on pallets and could not adjust the floors in trucks and trailers, among other things. The letter stated that Total had considered whether his employment could continue by removing the need for him to undertake these tasks, but had formed the preliminary view that this would create too great a burden on other staff; other employees did not have the time or capacity to leave their own jobs to undertake work that Mr Al-Omar was not able to do. The letter stated that Total was considering terminating his employment. Mr Al-Omar was asked to provide any other information or proposed reasonable adjustments, and to attend a meeting on 7 March 2025

• [11] Mr Malloy said that Mr Al-Omar attended the meeting on 7 March 2025 with his solicitor, as well as his supervisor, Mr Abdou, as an interpreter. At the meeting, Mr Al-Omar said that he was capable of operating forklifts. Mr Malloy responded that it was unfair on the small team of forklift drivers if they were required to do the other aspects of his role. Mr Al-Omar's lawyer then asked the company to delay making a decision for one week to allow Mr Al-Omar to provide a report from his treating physician. Mr Malloy's evidence was that he agreed, but that Mr Al-Omar did not provide any further evidence. Several weeks later, on 28 March 2025, Mr Malloy sent Mr Al-Omar a letter confirming that his employment was terminated effectively immediately on the basis that he no longer had the capacity to perform the inherent requirements of his role, and that he would be paid 5 weeks' pay in lieu of notice.

• [12] I make the following factual findings. First, I find that adjusting trays and undertaking warehouse-wide scanning of products are part of the duties of a forklift driver at Total. I accept the evidence of Mr Malloy, Ms Paenui and Mr Suto to this effect. They fall within the scope of the listed items of the position description. Mr Al-Omar acknowledged that all other forklift drivers do these tasks. I accept Mr Malloy's evidence that other employees had been doing these task for Mr Al-Omar. I accept Mr Suto's evidence that there had been complaints from other employees to management about this.

• [13] Secondly, I find that these are significant tasks that are inherent to the role of a forklift driver. Mr Al-Omar contended that they are the duties of a storeman or truck driver; in other organisations, this might be true, but Total does not employ such workers. In relation to the floor adjustments, Mr Malloy's evidence, which I accept, was that many customers' trucks are left at the site by the drivers. It is part of the service that Total offers to clients to adjust the trays and floors in trailers and trucks. This is not uncommon for a logistics business such as Total. Total requires its forklift drivers to do this work. I accept Mr Malloy's evidence that all of its forklift drivers around the country perform this work. Mr Al-Omar suggested that this requirement was contrary to occupational health and safety requirements, and the Heavy Vehicle National Law, however I cannot identify any proper basis for this argument.

• [14] Thirdly, I find that it would not have been a reasonable adjustment for Total to exempt Mr Al-Omar from the duties that he cannot perform. I find that other employees had been covering these duties for him, but that it would not have been reasonable to expect them to continue to do this, or for Total to hire an additional worker or source labour hire to do something that was part of Mr Al-Omar's job.

• [15] Mr Al-Omar submitted a certificate from his treating doctor dated 14 March 2025, which stated that he was 'fit for his daily work', but that due to his left knee pain, it was recommended that he avoid squatting and kneeling, that there be no prolonged walking or standing, and that he avoid use of large stairs. However, Mr Al-Omar's own evidence to the Commission was that he could not do the warehouse-wide scanning or adjust the floors, which I have found to constitute inherent requirements of his job. The certificate does not reflect a full occupational assessment, and its conclusion that Mr Al-Omar is fit for daily work does not, and could not, substantiate Mr Al-Omar's arguments about the proper scope of his duties.

• [16] Based on my findings above, I conclude that Total had a valid reason to dismiss Mr Al-Omar based on his capacity (s 387(a)). He was not able to perform all of the inherent requirements of his job. Mr Al-Omar was notified of this reason and had an opportunity to respond to it (ss 387(b) and (c)). He was not refused a support person within the meaning of s 387(d). His dismissal did not relate to poor performance, therefore the consideration in s 387(e) is not relevant. But to the extent that a concern about physical capacity might be seen as overlapping with performance, I find that he was warned about this matter, both by Ms Paenui in October 2024 and again by Mr Malloy in February and March 2025. I do not consider that the size of the employer's undertaking affected the processes adopted in relation to the dismissal (s 387(f)). It is not clear whether the company has internal human resources expertise (s 387(g)). I place no weight on this.

• [17] As to other matters that the Commission considers relevant (s 387(h)), I note that Mr Al-Omar was employed by Total for some 7 years. In my view Total adopted a fair process to investigate its concerns about Mr Al-Omar's capacity. The delay between the assessment in October 2024 and the letter in late February 2025 was regrettable and I accept that, although Mr Al-Omar was paid during this period, he found it stressful that the matter remained unresolved. Total should have progressed the matter during Ms Paenui's absence. However I do not consider that this rendered the dismissal unfair. The process that was initiated by the letter from Mr Malloy on 28 February 2025 was an appropriate one. Mr Al-Omar had a chance to respond, and was able to involve his lawyer in the meeting on 7 March 2025. His lawyer asked for another week to provide more information, but nothing was provided.

• [18] Mr Al-Omar objected that Mr Marsh was not a physician. But experienced occupational therapists are perfectly capable of providing an occupational assessment. And in any event, Mr Al-Omar does not dispute that he cannot undertake the scanning and floor adjustment work referred to above. Mr Al-Omar said that he was not provided with an official interpreter at the assessment on 7 October 2024. But he was accompanied by his supervisor who translated for him where necessary. Mr Al-Omar said that he should have been given a return to work plan or a performance improvement plan. But I do not consider that either of these things were reasonably required. Nor do I consider that the process that led to the dismissal was insufficiently formal or documented.

• [19] Taking into account the matters in s 387, I conclude that the dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed.

B. Malloy for Total Logistic Solutions Group Pty Ltd

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