Chi Nguyen v KDR Victoria Pty. Ltd. T/A Yarra Trams FWC 685. (U2018/3593). Gostencnik, DP. 6 February 2019
The applicant is 73 years of age and has been a tram driver for nearly 40 years with a bad back. He also has a personal leave balance of 19.5 weeks at the time of the dismissal.
All rail workers are covered by legislation, that requires that they are “of sufficient good health and fitness to carry out that work safety; and [are] competent to undertake that work…” This legislation has also detailed physical and mental capability criteria.
In summary, this matter turned on the evidence provided by the Yarra Trams’ medical advisors. Overall, the DP found the medical evidence to be conflicting in its process and form, with the fundamental basis of whether the applicant was “Permanently Unfit for Duty”. The applicant was dismissed on these grounds having suffered back complaints since 2010.
It should also be noted that [in my humble opinion] this case was run more like a court of law than a hearing held in the absence of such legal restraints and solemnity – with Yarra Trams being represented by a Senior Counsel and the applicant (presumably at the union’s expense) counsel. Ie, lots of “I put to you’s” and “so you say’s”.
Following pages and pages of questioning of the medical “experts”, the applicant’s counsel was able to convince the DP that the medical evidence should not be relied as there was some inconsistency established, with the DP concluding that the dismissal was unfair:
“First, the Applicant has a good disciplinary record, although in the circumstances of this case, involving a dismissal for capacity, this weighs marginally in favour of the Applicant;
“Secondly, the Applicant has a substantial period of employment. The Applicant served the Respondent for nearly four decades. His length of service warranted a more thoroughgoing consideration of his circumstances than the Respondent afforded;
“Thirdly, at the time of his dismissal the Applicant was 73 years of age and given his particular experience obtained during nearly four decades of service it must be said it will be a difficult prospect for the Applicant to obtain alternative employment. The impact of the decision to dismiss, given his age and taking into account the possibility of regaining fitness for duty ought to have weighed more heavily in the decision whether to dismiss the Applicant;
“Fourthly, the amount of sick leave and accumulated leave the Applicant had at the time of dismissal given the state of medical evidence speaks to the necessity of dismissal at a time when the medical evidence was, at best, conflicting; and
“Fifthly, there is no evidence of any consideration by the Respondent of mitigating the affects of the musculoskeletal condition by way of job modification or adjustment. Some of these are set out in the functional assessment”. [Emphasis added].
Whilst the DP “hinted” at the prospect of reinstatement, he left it to parties to work out a mutually acceptable outcome based on his findings. If this were not to happen the DP would reconvene and make a finding.
Application for an unfair dismissal remedy; whether there was a valid reason for dismissal; whether Applicant was permanently unfit for duty; notification of reason and opportunity to respond; dismissal unfair.
The only advantage in dismissing this employee was (maybe) reduce negative reporting stat’s on absenteeism and any saving on the 19.5 weeks sick leave would have been well eroded by the used of senior counsel and expert witnesses.
Perhaps, a career counsellor might have been a better first step?
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