Peter Norman v Lion Dairy and Drinks Milk Limited.  FWC 840, (U2015/7090). BARTEL, DP. 10 FEBRUARY 2016.
This is an interesting case that examines a number of areas, including:
- Inherent requirement of the job, reasonable accommodations (in the face of conflicting medical advice);
- Loss of trust and confidence;
- The opportunity to respond; and
- What is “harsh.”
Mr Peter Norman (the applicant) was dismissed from his position as Maintenance Technician (Fitter) at the Salisbury Plant of Lion Dairy and Drinks Milk Limited (the employer or the respondent) on 15 April 2015. The letter of termination of the same date stated that the applicant was no longer able to perform the inherent requirements of his position.
The applicant had a skydiving accident in February 2014 in which he fell approximately 10 metres and sustained multiple fractures. He did not return to work after the accident, but maintains that he was fit to resume his normal duties in March 2015.
The respondent’s decision to dismiss was based on independent medical evidence, and was after the applicant’s position was held open for more than 12 months.
Post-dismissal, the applicant obtained short-term casual employment, but was now on unemployment benefits. He stated that he has had difficulty obtaining employment because of his age and location.
Both parties presented “expert” medical witnesses, with one medico giving the analogy of:
“An AFL player who suffered a trauma or injury, with medico clearing the player as fit to return to football, but it is up to the coaches and trainers to determine if and when the player returns”.
The DP considered:
“In this matter it is the applicant’s capacity, rather than conduct, that is in issue. The Commission is required to consider and make findings on whether, at the time of dismissal, the applicant was able to perform the inherent requirements of his position based on the medical and other evidence. If not, then consideration is to be given to whether he would be able to fulfil his position at some time in the future and whether reasonable modifications [my emphasis] could be made to accommodate any restrictions or limitations that he may have”.
“Accordingly I find that the restrictions suffered by the applicant when assessed by Dr Graham on 5 March 2015 were predominantly connected to the trauma he suffered and the healing process. The applicant could, and I find that he did continue to improve after this date.
“In J Boag and Son Brewing v Button the worker had permanent restrictions and was unable to fulfil the inherent requirements of his original position. The employer had arranged for other workers to assist Mr Boag in his role over a period of many months. It was held at first instance that Mr Boag performed the inherent requirements of his position as it had been modified by the employer when it made available the assistance of the other workers. On appeal the Full Bench held that it is the substantive role and not any modified, restricted duties or temporary alternative position that must be considered.
In terms of the respondent must be provided an opportunity to respond to the reasons for dismissal must be a fair and adequate opportunity, the DP cited the views of Chief Justice Wilcox as stated in Gibson v Bosmac Pty Ltd:
“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However…[this] does not require any particularly formality. It is intended to be applied in a practical common-sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
The DP took into account the respondent’s:
- Age and location.
- May be harsh in its consequences for the personal and economic situation of an employee.
- Where the dismissal caused damage to the employee’s reputation which restricted the ability to obtain further employment.
- Where an employee is engaged under a subclass 457 visa faced deportation as a consequence of the termination.
- Where the employee had extensive and exemplary service, was the primary breadwinner for his family and was unlikely to secure further employment because of his age.
The applicant sought reinstatement to his former position.
Reinstatement was recently considered at some length in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen). Considering a range of authorities the Full Bench stated:
“We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.”
“Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate”
The Full Bench then considered the approach to be adopted in considering an argument that reinstatement would be inappropriate because there has been a loss of trust and confidence:
- Whether there has been a loss of trust and confidence is a relevant consideration is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
- Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
- Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive.
The DP reinstated the applicant, with the amount of monies paid in compensation for loss of remuneration to discussed by the parties (there will be some discount).
Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:
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