| [2022] FWC 2876 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Warren Soans
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2022/1431)
COMMISSIONER LEE |
MELBOURNE, 27 OCTOBER 2022 |
Application for an unfair dismissal remedy ––– applicant guilty of misconduct – valid reason for dismissal – dismissal was procedurally fair –– personal matters including age and length of service weighs in favour of harshness – unauthorised disclosure of medical information by doctor also relevant consideration weighing in favour of applicant – dismissal not unfair taking into account all the circumstances – application dismissed.
[1] This decision concerns an application for an unfair dismissal remedy made by Mr Warren Soans (Mr Soans or the Applicant) on 2 February 2022 under s.394 of the Fair Work Act 2009 (FW Act). Mr Soans claims that he was unfairly dismissed from his employment with KDR Victoria Pty Ltd (T/A Yarra Trams) (Yarra Trams or the Respondent). Mr Soans worked as a Tram Driver from 16 November 2000 until 13 January 2022, when the dismissal took effect. Relevantly, Mr Soans suffered a stroke on 8 July 2021. Mr Soans was dismissed on the grounds that he engaged in serious misconduct. The alleged misconduct was as follows:
• on 19 August 2021, he failed to tell Dr Altaf of the stroke during the triggered health assessment;
• on 1 October 2021, he failed to tell Dr Turnbull of the troke and that he was unfit for work; and
• his responses during the investigation process lacked candour and were not honest. 1
[2] Notwithstanding that he was dismissed for serious misconduct, the Applicant was provided payment in lieu of notice.2 The Applicant maintains that the dismissal was unfair. The Applicant seeks reinstatement of his employment with Yarra Trams as a Tram Driver. This was the position held by the Applicant immediately before his dismissal on 13 January 2022. 3 In addition, the Applicant seeks consequential orders maintaining his continuity of employment and period of continuous service with the Respondent and for remuneration lost by reason of the dismissal.4
[3] There was a hearing on 15 and 16 June 2022 to deal with the evidence and a further hearing on 25 August 2022 to allow the parties to make final submissions.
[4] Section 396 requires that I decide four matters before considering the merits of Mr Soans’ application. It is not in contest, and I am satisfied of the following. First the application was made within the 21-day period required by s.394(2). Secondly, Mr Soans was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Yarra Trams is not a small business employer, and the Small Business Fair Dismissal Code is therefore inapplicable.
[5] It is convenient to commence by setting out an overview and chronology of the various events that ultimately led to the dismissal of the Applicant. The overview is limited to the chronology of events leading up to the dismissal. However, as will be seen later in the decision, the details as to what actually occurred during the events, in particular what was said during the consultations Mr Soans had with two doctors, is the subject of significant factual contest. To a large extent, the case turns on factual findings relating to those doctor consultations, as well as some other key matters, such as Mr Soans’ knowledge of his obligations under the National Standard for Health Assessment of Rail Safety Workers (the National Standard).
[6] As mentioned earlier, Mr Soans worked at Yarra Trams as a Tram Driver from 16 November 2000 until he was dismissed on 13 January 2022. Prior to being employed at Yarra Trams, he worked as a computer digitiser. 5
[7] It is not in contest that Yarra Trams is regulated by statute and by the National Standard in relation to its rail safety workers, including Tram Drivers. The National Standard is “a critical element of managing the safety risks posed by rail safety worker health” and was the result of “an extensive consultation process with the medical community, consumer health groups, industry groups and associations, rail transport operators and their employees, transport departments, unions and regulators on how we can improve the Standard to provide the best rail safety outcomes for Australia”. The National Standard “seeks to ensure that the Standard provides practical, clear guidance for users and supports consistent assessment and decision making”. 6 The National Standard “recognises health assessments as one aspect of an integrated management system aimed at achieving a high level of safety throughout the rail network…” and “sets out how the health of rail safety workers should be assessed”.7 It applies to “all rail transport operators and to all rail safety employees”.8 The National Standard “relates to health assessments and procedures for monitoring and managing the health and fitness of workers in relation to their ability to perform rail safety duties”.9
[8] The National Standard applies to Yarra Trams and to the Applicant as a “safety critical worker”. 10 They set a ‘Standard’ that was imposed by the Rail Safety National Law Application Act 2013 (Vic). The National Standard is a document explaining the relevant standard and states that “rail transport operators are required to manage the risks posed by the ill-health of rail safety workers”.11 The National Standard addresses medical criteria and responses for “strokes” and “TIAs”, defined as “neurological conditions”.12 Under the National Standard, a person who suffers a stroke “should be categorised Temporarily Unfit for Duty for at least 3 months following a stroke”.13
[9] The Applicant claims to have had no knowledge of his obligations under the National Standard. Mr Soans asserts that he had not seen the training materials for training he received in 2019 and that he did not recall the training. 14 Yarra Trams adduced evidence that he completed this training.15 The Respondent submits that “all drivers are made aware of their obligations to operate/drive trams safely and have been trained in these matters and the obligations imposed by the National Standard”.16 I deal with the evidence as to the Applicant’s knowledge and training in his obligations under the National Standard later in the decision.
[10] On 8 July 2021, Mr Soans arrived at work but did not commence his shift as he became suddenly unwell. There were four Depot Team Managers in the office and one of them asked Mr Soans if he was able to drive himself home. The Applicant replied that he was. When he got home, the Applicant’s wife called the ambulance. The Applicant was admitted to the Royal Melbourne Hospital (RMH) and was diagnosed as having suffered a stroke. 17 On 12 July 2021, after three days in the Stroke Care Unit of the RMH, the Applicant was discharged with a medical certificate stating he could not drive and/or operate heavy machinery and was unfit for work for a period of 4 weeks from 8 July 2021 until 5 August 2021.18 When the Applicant was discharged from the RMH he was also provided with a discharge summary from the RMH.19 The Applicant was advised soon after he was admitted into hospital that he had suffered a stroke.20 Mr Soans gave the documents from the RMH to his daughter, who emailed a copy of the medical certificate to Yarra Trams on 12 July 2021.21
[11] There was no contact between the Applicant and the Respondent in the ensuing 4 weeks of medical leave. At the conclusion of the 4-week period, the Applicant contacted the office of the Respondent and was advised that he could recommence work that Sunday. In a separate call, the Applicant was advised to attend the office and collect some paperwork prior to returning. This paperwork directed the Applicant to attend a triggered health assessment with a Rail Safety Accredited Doctor, Dr Khayyam Altaf, in accordance with the National Standard. An appointment was also made for a Category 1 medical assessment with Dr Stuart Turnbull. 22
[12] The Applicant did not advise Yarra Trams that he had suffered a stroke at that time. The Applicant then drove trams on 8, 9 and 10 August 2021 in breach of the National Standard.
[13] Yarra Trams has a process for occasions where an employee is required to attend a triggered health assessment following an absence from work. The worker’s manager is required to contact the employee prior to the end date on the medical certificate and advise the person of the requirement to attend the triggered health assessment before he/she returns to work. It appears that this process was not followed on this occasion. This resulted in Mr Soans returning to work and performing three shifts on 8 to 10 August 2021 (and attending a development day) before being directed to attend the triggered health assessment. Mr Soans should not have performed those shifts given he had suffered a stroke. 23 However, the fact that he did so is not relied upon by the Respondent as a basis for dismissal.24
[14] On 19 August 2021, the Applicant attended an appointment with Dr Altaf (the first appointment with Dr Altaf). The Applicant did not tell Dr Altaf that he had a stroke. 25 After the examination, Dr Altaf advised the Applicant that he would call Yarra Trams to inform them that he was fit to return to work subject to a further review in 2 weeks. The Applicant consented to Dr Altaf obtaining his medical report from the RMH.26 There is a dispute as to what else was said by the Applicant and the doctor at this consultation.
[15] The Applicant returned to work on 20 August 2021, 27 and again drove trams between 20 August and 2 September 2021.28 On 3 September 2021, Dr Altaf received the Applicant’s medical report from the RMH which confirmed the Applicant’s diagnosis of having suffered a stroke. In the 2-week review appointment on 3 September 2021 (the second appointment with Dr Altaf), Dr Altaf asked the Applicant if he was aware that he had suffered a stroke and the Applicant replied that he was. Dr Altaf advised the Applicant that he needed a clearance from a neurologist to continue work.29 There is a contest as to what else was said by the Applicant and Dr Altaf during the second appointment on 3 September 2021.
[16] On 1 October 2021, the Applicant attended a Category 1 Medical Assessment appointment with Dr Stuart Turnbull. The Applicant passed the assessment on the condition that corrective lenses be worn. On 6 October 2021, the Respondent became aware that the Applicant had attended the assessment appointment with Dr Turnbull and had passed the assessment subject to the corrective lenses issue. As this assessment clearly conflicted with that given by Dr Altaf on 3 September 2021, Ms Deborah Kingdom (Human Resources Manager) contacted Dr Turnbull to discuss this. There was an exchange of correspondence between Dr Turnbull and Dr Altaf. 30 Dr Turnbull then advised Ms Kingdom that the Applicant had “clearly withheld information” from him, and that the TU (temporary unfit) determination of Dr Altaf should stand.31
[17] On 8 October 2021, the Applicant attended a neurologist appointment with Dr Salar Mcmodie. He was assessed as having fully recovered from stroke and provided clearance to resume his position as a Tram Driver. 32
[18] On 15 October 2021, the Applicant received a letter from the Respondent notifying that a workplace investigation would be conducted on the basis of two allegations. First, that the Applicant failed to disclose the details of his medical condition to Dr Altaf on 19 August 2021. Second, that the Applicant failed to disclose the details of his medical condition to Dr Turnbull on 1 October 2021. 33 The Applicant denied both allegations.34
[19] The Applicant was interviewed on 22 October 2021 and 26 November 2021 as part of the investigation into the allegations. In a meeting on 21 December 2021, the Respondent advised the Applicant that they had determined the allegations were either partially substantiated or substantiated and were proposing to terminate the Applicant’s employment. The Applicant was invited to provide a written response to the proposed termination of his employment by 23 December 2021. 35 On 13 January 2022, the Applicant was advised that his employment was terminated for serious misconduct effective immediately.36 The Applicant was paid 5 weeks in lieu of the notice he would have been entitled to receive had his employment been terminated other than for serious misconduct.37
[20] I will now turn to the evidence relevant to the key factual contests in the matter.
[21] The Applicant’s evidence is that at the time he was admitted to hospital, “…and even later”, he did not know any of the details of the diagnosis and did not understand what a stroke was. 38 The discharge summary provided by the RMH to the Applicant clearly indicates under the heading clinical summary that he had suffered a thalamic stroke. There is also a list of medicationS prescribed to him at discharge including three described as new medications:
“• aspirin 100 mg tablet; 100 mg, Oral, Daily
• atorvastatin 80 mg tablet; 80 mg, Oral, At night
• clopidogrel 75 mg tablet; 75 mg, Oral, Daily, Take aspirin+ clopidogrel
• 3 Weeks, and then aspirin monotherapy ongoing”
[22] The discharge summary also includes the following notes under the heading “Discharge Management Plan”:
“1. Discharge home
2. Follow up in Stroke OP clinic in 3 months
3. OP TTE and 24hr Holter (booked)
4. No driving for 4 weeks with GP assessment prior to return to driving, (if severe, unsafe for driving, ongoing driving restriction until stroke follow up)
5. Continue with DAPT for 3 weeks with aspirin and clopidogrel, then to continue on monotherapy with aspirin 100mg daily thereafter
6. Commence Commence atorvastatin 80mg PO noote (sic)
7. Tram driving restriction – as per phone call to Yarra trams WorkCover, no specific restrictions, have advised to have at least 4 weeks as per usual driving restrictions, and for reassessment by Yarra Trams physician for fitness to return to work
8. GP to please follow up with ongoing optimisation of cardiovascular risk factors and to continue to support smoking cessation.” 39
[23] The Applicant maintains that he did not read the medical discharge summary and claims that he did not look at it until he was asked about it by the Industrial Officer from the Australian Rail, Tram and Bus Industry Union (RTBU) when he was preparing his statement. 40
[24] When he was cross examined about what he was told by the RMH before he was discharged, and in particular whether the matters noted in the discharge summary were said to him, his answer was “no one told me nothing”. 41
[25] The Applicant does accept that he told his treating GP, Dr Hussain, when he saw him on 13 July 2021, one day after he was discharged from RMH, that:
• he had a stroke the week before;
• he had been admitted to the RMH;
• his speech had been slurred;
• his left hand and left foot were weak; and
• he had started physio. 42
[26] The Applicant accepted that he knew he was prescribed and was taking 3 tablets a day when he left the RMH. 43 He was still taking those tablets at the time of the hearing.44
[27] The Applicant accepts that when he went to see Dr Altaf on 19 August 2021, that he knew he had suffered a stroke. 45 The Applicant’s evidence is that he did not tell Dr Altaf at the first appointment that he had suffered a stroke. His evidence for not doing so was as follows:
“I did not say to Dr Altaf that I had had a stroke because I did not actually know the details about everything that had happened and what the doctors at the Hospital had discovered. I did not want to give Dr Altaf information of any kind that might be wrong or misleading. I also did not want to tell him I had had a stroke because I was fearful if I said that I would be dismissed because of my stroke. I thought it would be better for me if Dr Altaf had all of the information about what happened to me so a decision could be made on all the information rather than what I knew.” 46
[28] In response to Dr Altaf asking him at the first appointment whether he was taking medication, the Applicant’s evidence is that he replied that he did not know. 47 However, the Applicant also stated that “I never told him I’m not on medication.”48
[29] Dr Altaf gave the following evidence about what transpired on 19 August 2021:
“I asked Mr Soans why he had been absent from work. He told me that he was feeling tired and weak, and his GP had advised him to take some time off. I asked Mr Soans why he had been to hospital. Mr Soans told me that this was because he had been feeling tired and weak. I asked him what the diagnosis was. Mr Soans said to me that no diagnosis was given. I asked Mr Soans if he was taking any medication. Mr Soans told me that he was not. I asked Mr Soans whether he had experienced any other symptoms. He said to me he had not. I asked Mr Soans whether he had any other medical conditions, or any medical conditions in the past. He said “no”. I asked Mr Soans questions about whether he smoked or drank alcohol, which Mr Soans answered. I then conducted a physical examination of Mr Soans, including taking his blood pressure and conducting a neurological and musculoskeletal examination. The physical examination did not reveal any issues of concern. 49
[30] Based on the information that the Applicant had provided Dr Altaf and the examination that he conducted of him, which included taking his blood pressure and conducting a neurological and musculoskeletal examination (which revealed no issues of concern), Dr Altaf certified the Applicant as fit for duty subject to review. 50 The contemporaneous notes that Dr Altaf took of the conversation are in evidence. In those notes, Dr Altaf recorded the following:
“feeling weak
No diagnosis given
Meds – Nil” 51
[31] The Applicant disputes that Dr Altaf asked him why he had been away from work. 52 He also rejects that he told Dr Altaf that he was feeling weak and tired. He disputes that he told Dr Altaf that no diagnosis was given.
[32] Mr Soans maintains he wanted the doctor to find out for himself from the hospital the details of his condition and that this was part of the reason (along with a fear of dismissal) that he did not reveal the fact of his stroke diagnosis. 53 According to the notes of the 22 October investigation meeting with his employer, the Applicant characterised the exchange with Dr Altaf this way:
“I was in hospital and got a letter saying I can’t drive for 4 weeks. The triggered rail doctor said ‘oh you were on sick leave for 4 weeks’
I responded ‘yes, but its better if you get all my med records from the hospital rather than I explain to you’ I didn’t feel confident in explaining it properly or providing all the information.
Doctor agreed and said that he would get the info from the hospital and meet again in 2 weeks.
I signed a consent form allowing the doctor to access my records from RMH.” 54
[33] However, his evidence at the hearing differed to this account in that he accepts that Dr Altaf initiated the request for him to access the hospital records. 55 This is broadly consistent with the evidence of Dr Altaf which was to the effect that he formed the view that he should obtain the records from the hospital to confirm what the Applicant had told him and that he was the one who told Applicant that he would need to see his hospital records.56
[34] The Applicant returned to see Dr Altaf on 3 September 2021 for a 2-week review appointment. Dr Altaf had at this point obtained the RMH discharge report pertaining to the Applicant’s hospital admission. Dr Altaf was therefore aware that the Applicant had suffered a thalamic stroke, been admitted to the stroke unit of the RMH and had been prescribed three “new” medications which, in combination, Dr Altaf states are a common combination of medications prescribed to someone after they had a stroke. Dr Altaf’s evidence is that he was surprised by this information as the Applicant had not previously communicated any of that information to him. 57
[35] Dr Altaf’s evidence is that he commenced the discussion with the Applicant by asking him if he was aware that he had a stroke and the Applicant told him he was aware of that. When he asked the Applicant why he did not tell him that at the first appointment, the Applicant said that he wanted the doctor to find out himself. 58 Dr Altaf states he was at a loss to understand why the Applicant did not tell him he suffered a stroke.59 Dr Altaf provided the following evidence as to what he then said to the Applicant:
“I said to Mr Soans, that under the National Standard, a person who has had a stroke is not fit for rail safety work for a period of at least three months. I told Mr Soans that this meant that he was unfit to drive trams. I said I could only re-assess him once I received a report from a specialist. I provided Mr Soans a letter which I instructed him to take to his GP in order to get a referral to a neurologist or a stroke specialist. The letter stated that, under the National Standard, Mr Soans was unfit for a period of at least three months from 8 July 2021. It said that I could only “clear him” (to return to work) after that time with a letter from a neurologist or stroke specialist outlining the level of impairment of visuospatial perception, insight, judgement, attention, reaction time, memory sensation, muscle power, balance, co-ordination or vision (including visual fields). I discussed the contents of the letter with Mr Soans.” 60
[36] Dr Altaf provided clear evidence that he read from the letter that he gave the Applicant:
“So, I put it onto the letter, printed it out, explained it to Mr Soans that you're temporarily unfit for work, so you can't go to work today, and there was the question later of, 'When is your next shift and I'll inform Yarra Trams.' I handed him the letter and explained to him what the process is now. So, I asked him to take the letter to his GP, get a referral to a neurologist, make sure he takes my letter to the GP and the neurologist, so the neurologist is aware of what I'm asking. Once I've received that information and three months has passed then I'll mark a further determination on fitness for work.” 61
[37] Mr Soans denies that Dr Altaf said or did these things. 62 The Applicant disputes that he was told he was temporarily unfit and denies that he was told, “you’re unfit to work at this time”.63
[38] As to whether the Applicant agrees he was told by Dr Altaf about the requirement for a person who has had a stroke to not work for 3 months in accordance with the National Standard, his evidence was inconsistent. When it was first put to him in cross examination that he was told by Dr Altaf that he had to wait at least 3 months from the time of the stroke before he could drive a tram he clearly answered in the affirmative:
“He told you, 'You've got to wait at least three months from the date of the stroke before you can drive a tram'?---Yes, sir.
But he said it effectively could be longer, because you've got to get a specialist report?---No, sir. He didn't say it could be longer. He said, 'You've got to wait three months and then get a clearance from a neurologist, and then - - -
Do we agree that he said you have to wait at least three months?---Yes, sir.” 64
[39] He then changed his evidence and said that he could not remember if he had been told that he could not work for 3 months by Dr Altaf. 65 His evidence then changed again to that he did not know he could not drive for 3 months and he only knew that he could not drive for one month.66 He did accept that he was told he could not work until he was assessed by a neurologist.67
[40] The evidence of the Applicant on what Dr Altaf told him at the second appointment is not consistent with the contemporaneous notes of Dr Altaf in evidence. Those notes included the following: “imp-temp unfit and needs specialist report”. 68
[41] It is also inconsistent with what the Applicant told his treating practitioner, Dr Hussain, by phone soon after his consultation with Dr Altaf. The Applicant maintained that he could not remember if he did so. 69 The Applicant’s patient record with Dr Hussain was produced and tendered into evidence. That record contained the following:
“History: phone consult. told he can't drive tram for 3mth since date of stroke…” 70
[42] The Applicant also saw Dr Hussain in person on 6 September 2021 and the consultation record includes the following:
“History: seen doc for job medical in light of stroke. to not drive tram for 3mth. needs neurologist to give clearance before he can drive.” 71
[43] The Applicant claims he could not recall these medical appointments with Dr Hussain, or the matters discussed. 72
[44] The Applicant attended the appointment for a periodic health assessment with Dr Turnbull on 1 October 2021. Mr Soans completed a rail safety worker health assessment or a Category 1 medical assessment form prior to the appointment with Dr Turnbull. The form has a section headed “do you suffer from or have you ever suffered from” and a series of options. The Applicant has ticked all the “no” boxes, with the exception being the question “have you had a stroke” where there is a mark in the “no” box, which is likely a tick that is scribbled out. There is also a tick in the “yes” box for that question. 73 The Applicant’s evidence is that he ticked “no” at first, then realised his mistake and sought to correct it. This raised an issue in the consultation with Dr Turnbull as to what had happened to him and whether he had a stroke. His evidence is that Dr Turnbull asked him about the correction and that he told Dr Turnbull that he had had a stroke. However, the doctor’s notes are not consistent with the Applicant’s version of events. Next to the boxes marked for stroke, there are handwritten notes from the doctor which include:
“FELT ODD 3/12
CALLED MAS -> RMH
NO CVA/TIA – DISCHARGED”
[45] In his statement, Dr Turnbull clarified the meaning of CVA:
“I made notes in the far right hand column of the table in question 2 of Part B, recording Mr Soans’ responses as follows: “FELT ODD 3/12” (felt odd three months ago); “CALLED MAS -> RMH” (called an ambulance and was taken to the Royal Melbourne Hospital); “NO CVA/TIA – DISCHARGED” (no cerebrovascular accident/stroke or transient ischemic attack and was discharged from hospital).” 74
[46] He also clarified the meaning of this note during the Hearing. 75
[47] Dr Turnbull’s evidence was that he specifically asked Mr Soans if he had suffered a stroke and that the Applicant said he had not had a stroke and was discharged from hospital. 76 He did tell him that he felt odd 3 months prior and had been taken to hospital by ambulance. Dr Turnbull also asked the Applicant about medication that he was taking. The Applicant claims that he told Dr Turnbull about his medications by way of providing their names written on a piece of paper.77 The piece of paper was not produced at the hearing. Dr Turnbull was clear that he did ask the Applicant if he was taking medication and he said that he was not. Dr Turnbull’s handwritten contemporaneous note reads “NIL MEDS”.78
[48] The Applicant accepts that he did not tell Dr Turnbull that he could not drive trams for 3 months from the date that he had a stroke and that he did not tell him about his visit to Dr Altaf and what had transpired there at all. 79
[49] Dr Turnbull was cross examined on both key issues in contest, whether the Applicant told him he had a stroke and whether he provided a list of his medications. Dr Turnbull was clear in his responses that he did neither. 80
[50] Ultimately, based on the information that Dr Turnbull says he was provided with, combined with the medical examination he conducted on the Applicant, he certified him as fit for duty conditional only on corrective lenses being worn.
[51] Mr Soans claims that the following exchange occurred during the 1 October 2021 appointment with Mr Turnbull:
“I recall telling Dr Turnbull that I had an appointment to see a neurologist on 8 October 2021. I asked him if he knew how I could get to Bulleen which was where the neurologist office was and Dr Turnbull said to get the 504 bus from La Trobe Street.” 81
[52] When it was put to the Applicant that Mr Turnbull would give evidence that he never made a reference to bus route 504, and whether it was possible that he was confused, the Applicant said he was not confused at all. 82 The Respondent provided evidence which shows that bus route 504 is in fact the Moonee Ponds to Clifton Hill via East Brunswick. Furthermore, further evidence adduced showed that there is in fact a bus that runs through the city, being bus-route 200, Queen Street to Bulleen. When this was put to the Applicant, he responded by indicating that he got the number wrong.83 Dr Turnbull gave clear evidence that he was not familiar with the bus network in Melbourne and was then and now unable to advise Mr Soans which bus to take to get to Bulleen.84 Dr Turnbull also was clear in his evidence that Mr Soans did not tell him he had an appointment to see a neurologist.85
[53] Dr Turnbull confirmed that he is an Authorised Health Professional able to conduct medical assessments under the National Standard and that he was involved in developing and drafting the National Standard. He is also an accredited trainer for the National Standard. 86 This begs the question as to why Dr Turnbull would certify Mr Soans as fit for duty if he had been aware that he had suffered a stroke. Dr Turnbull’s evidence on this point was compelling:
“I refer to paragraph 18 of the Soans Statement. Mr Soans asserts that he told me that he had a stroke. He says that is why he ticked the Form. This is not true. I asked Mr Soans whether he had suffered a stroke. Mr Soans said to me “no”. If Mr Soans had told me he had a stroke, I would not have declared him fit for duty. I have worked for years assessing workers under the National Standard. If a worker discloses he/she has had a stroke, I must declare them unfit for duty for at least three months. I have never, and would never, declare a rail safety worker to be fit for work if they told me they had a stroke in the last three months.” 87
[54] A mechanical application of the National Standard meant that Mr Soans could not return to work in the 3-month period. Dr Turnbull would have reasonably known this given his experience with and knowledge of the National Standard.
[55] In light of the inconsistent medical assessments from the two doctors being reported to Yarra Trams in respect of the Applicant, some inquiries were undertaken. Ms Kingdom contacted Dr Turnbull and told him that there were differing assessments that had been made by him and Dr Altaf. Dr Turnbull spoke to Dr Altaf and then deferred to Dr Altaf’s unfit assessment. The evidence of Dr Turnbull is that he told Dr Altaf that:
“Mr Soans had been ‘scant with the truth’ when I saw him, advising me that he had felt odd in July, had been to the Royal Melbourne Hospital and was discharged without diagnosis.” 88
[56] On 22 October 2021, Yarra Trams then commenced an investigation into the matter. The matters to be investigated were set out in a letter sent to Mr Soans. 89 The two allegations were that:
“1. You attended a triggered medical with Dr. Khayyam Altaf on 19 August 2021, during the medical you failed to give the Authorised Health Professional the details of your diagnosed health condition
2. You attended a periodic medical with Dr. Stuart Turnbull on 1 October 2021, during the medical you failed to give the Authorised Health Professional the details of your ongoing diagnosed condition for which you had been deemed temporarily unfit by Dr. Altaf”
[57] The first interview was conducted on 22 October 2021. At that interview, Mr Soans expressly stated that when he saw Dr Turnbull on 1 October 2021 that “I did not know that I had been deemed temporarily unfit. Altaf did not tell me this”. 90 Mr Soans confirmed under cross examination that he did not know when he saw Dr Turnbull that he was temporarily unfit.91 Mr Soans also stated that he “cannot recollect” if he was not allowed to drive trams at that time.92 However, that evidence is contradicted by the evidence of his treating doctor’s record which indicates that Mr Soans clearly told Dr Hussain on the day of the first consultation with Dr Altaf that he had been told he could not drive trams for 3 months.93
[58] A further investigation meeting was held with Mr Soans on 26 November 2021. According to the notes of that meeting Mr Soans said “I told Dr. Altaf the diagnosis during the medical assessment on 19 August 2021”. 94 It is not apparent what diagnosis the Applicant is referring to, as even on the Applicant’s own evidence to the Commission he accepts that he did not tell Dr Altaf that he suffered a stroke at that time.95 Mr Soans also maintained during this meeting that he did not know he was temporarily unfit after seeing Dr Altaf on 3 September 2021 because the doctor had not told him that.96 He was asked at the meeting why he did not tell Dr Turnbull he was temporarily unfit. His response was “What can I say? Ignorance…. It was ignorant of me. I didn’t think something was wrong”.97 This is inconsistent with the record of the Applicant telling his own doctor on 3 and 6 September 2021 that he could not drive trams for 3 months. The outcome of the investigation was as follows:
• The allegation that Mr Soans had failed to disclose his condition (stroke) to Dr Altaf on 19 August 2021 was partially substantiated – there was no disclosure of the known diagnosis.
• The allegation that Mr Soans had failed to disclose to Dr Turnbull on 1 October 2021 the details of his diagnosed condition was substantiated. The evidence of Dr Turnbull was preferred.
• The allegation that Mr Soans was dishonest in the 22 October 2021 meeting when he said that he did not know he was temporarily unfit (the Altaf Unfit Assessment) when he attended the Dr Turnbull appointment on 1 October 2021 was substantiated.
[59] The foregoing analysis of the evidence demonstrates that there are significant contests of fact, particularly as between the two doctors and Mr Soans, as to what was said and what was not said at the various consultations. Findings as to witness reliability and credibility are necessary as part of the determination of this matter.
[60] Mr Soans as a witness was courteous and respectful. However, he was not a reliable witness. His reliability as a witness needs to be assessed against evidence he gave where he claims that he is not able to remember important information, such as whether he was told by Dr Altaf at the second consultation that he could not drive trams for 3 months despite a record of him saying exactly that to his own doctor the day of the second consultation with Dr Altaf. As was put by the Respondent, Mr Soans was not a reliable historian. 98 The Applicant’s representative conceded as much.99
[61] Mr Soans was asked during the hearing, by way of reference to a number of corrections he had made to his evidence in his reply statement, whether he had difficulty with his memory. His evidence was ultimately that he had problems with his memory from July 2021 to October 2021. 100 However he also said that he recovered from that problem in October 2021. He disagreed that he had problems remembering what was said to him on particular dates, and claims that his problem was remembering the dates that events occurred.101
[62] There was some evidence obtained from Dr Turnbull during cross examination as to the possible effects on memory of a stroke. 102 The National Standard refers to strokes sometimes causing neurological deficit, both passing and permanent.103 However I agree with the Respondent that the Applicant did not take the opportunity to bring any expert evidence as to the particular effect of the stroke on the Applicant. The evidence obtained by way of cross examination of the doctor does not assist in determining the particular manner in with the stroke affected Mr Soans in the 3 months from July to October 2021 as regards to his memory. As stated above, the Applicant disagrees that he had problems remembering what was said to him on particular dates, and claims that his problem was remembering dates that events occurred.104
[63] I agree with the submissions of the Respondent that Mr Soans was not a reliable historian in relation to the key events from July to October 2021. Where the evidence of Mr Soans conflicts with any contemporaneous documentary evidence or any oral evidence given by a witness, the evidence of Mr Soans is not preferred.
[64] The second matter is the credibility of Mr Soans. Again, while Mr Soans was courteous and respectful, he was not a witness of credit. I agree with the submissions of the Respondent to the effect that he was not honest and candid about a range of matters which include:
“• his assertion in the Form F2, and in his statement, that he had not been counselled or disciplined in relation to performance or conduct: he said there was no such record; 105
• his denial of any knowledge of the training as to the National Standard and his denial of knowledge that he must communicate to the employer when he had suffered a serious medical condition; 106
• his assertion that he did not know he had to tell his employer that he had suffered a stroke; 107
• his assertion that ‘no one told me nothing’ 108at the Royal Melbourne Hospital (RMH);
• the answers he gave in relation to the question from each doctor about whether he was on any medication: he denied to each doctor he was on medication; 109
• his denial that Dr Altaf had communicated to him that he was unfit for all duties for at least 3 months: he was told this by Dr Altaf at the second consultation on 3 September 2021 and he in turn told his GP that day and at the next physical consultation; and
• his explanation for not telling Dr Turnbull that he had been certified by Dr Altaf as unfit for all duties.” 110
[65] Turning to the credibility of the doctors, the Applicant made no general submissions about the credit to be afforded to evidence of either doctor. 111 However, that care should be taken with Dr Altaf’s evidence as he should have taken other steps before certifying that the Applicant was fit for work, and that he argued his case from the witness box.112 As to Dr Turnbull, the Applicant submits that it needs to be borne in mind that he breached the confidentiality obligations of the National Standard and some of his evidence was given in a defensive manner.
[66] In my view, Dr Altaf was an extremely credible witness. He had clear recollections of his conversations with Mr Soans and was not shaken on his evidence in cross examination. He had clear contemporaneous notes of his conversation with Mr Soans which supported and was consistent with his evidence. There was no plausible reason for him to concoct or distort his evidence. To the extent there is a conflict I prefer the evidence of Dr Altaf to that of Mr Soans.
[67] Dr Turnbull was also a credible witness. While his recollection of the consultation with Mr Soans was not as clear as that of Dr Altaf, he relied upon his notes as to what occurred in the consultation and his explanation as to why he recorded what he did was credible. He was cross examined at some length as to his knowledge of the confidentiality requirements of the National Standard and whether he had complied with them. He was responsive and candid and made concessions where appropriate to that questioning. Where there is a conflict, I prefer the evidence of Dr Turnbull to that of Mr Soans.
[68] The Applicant submits that his dismissal in all the circumstances was harsh, unjust and unreasonable. The Applicant stresses that the precise terms of the reasons for the Applicant’s dismissal are important as, strictly speaking, they cannot be substantiated because:
“As at 19 August 2021 Mr Soans did not then have a ‘diagnosed medical condition’ (he had had stroke some six weeks earlier but that was not a present tense diagnosed medical condition); as at 1 October 2021, Mr Soans did not have an ‘ongoing diagnosed medical condition’. Again, there is nothing to suggest any condition was ‘ongoing’ at that date and there is simply no evidence that would enable a finding that Mr Soans was ‘unfit’, temporarily or otherwise, at the relevant time and that he knew that at any time, which is something that Mr Soans was at pains to emphasis in his evidence.” 113
[69] In relation to his alleged failure to give Dr Altaf the details of his diagnosed health condition on 19 August 2021, the Applicant claims that that he was unable to know the details of his medical condition because they were difficult for anyone, especially someone without a medical qualification, to understand and accurately recall. 114 Furthermore, the Applicant submits that he gave consent to Dr Altaf to access his hospital medical records so that he may obtain the accurate information, and the fact that Dr Altaf took two weeks to access it was not a reason to dismiss him.115
[70] In relation to his alleged failure to give Dr Turnbull the details of his ongoing medical condition for which he had been deemed temporarily unfit by Dr Altaf, the Applicant claims that he did expressly tick a box saying he had a stroke and drew attention to it by his initial error in ticking the wrong box. 116 Dr Turnbull wrote words immediately next to the tick indicating an affirmative answer.117 Furthermore, the Applicant submits that at that time he did not know he had been deemed temporarily unfit for work but was instead operating on the understanding that he needed clearance from a neurologist to return to work.118
[71] Alternatively, the Applicant submits that reason for dismissal was not sound or defensible because the National Standard made clear that the information passing between medical practitioner and worker was confidential to the medical practitioner and worker, and should not have been disclosed to anyone, including Yarra Trams. As such it was unsound or indefensible to rely upon it as basis for dismissal especially when Yarra Trams counselled and procured the breach of the confidentiality obligation. It was simply not information that Yarra Trams should ever have had or sought, and it could not ever have relied upon such it as a forming a basis for dismissal. 119
[72] Finally, the Applicant made the following submissions as to other relevant matters for the Commission to consider:
“First, the direct circumstances leading to Mr Soans dismissal are highly unusual, he being 63 years of age, confronted with the misfortune of having suffered a stroke (something that does not happen every day) and relying by and largely on what others were telling him to do (or not to do) so that he could continue working for Yarra Trams.
Second, he acted on medical advice given to him by the hospital doctor who gave him the medical certificate which he reasonably believed he was entitled to rely upon.
Third, he was careful in making sure that the medical information that was provided to Dr Altaf was accurate. Likewise, once he knew of Dr Altaf’s requirement that he be ‘cleared’ by a neurologist he diligently took steps to make and attend an appointment, obtain the clearance, and see Dr Altaf again as Dr Altaf required. Once he knew that he needed a clearance from a neurologist and Dr Altaf, he did not seek to return to work until Dr Altaf said he could do so.
Fourth, Yarra Trams knew at all relevant times that Mr Soans had had a stroke and, so it seems, did nothing off its own bat to inform Doctors Altaf or Turnbull or any medical practitioner.
Fifth, Mr Soans over 21 years has an unblemished employment history, has been at the forefront of marketing and promotional opportunities for Yarra Trams, is liked and respected by his fellow workers and management and loves his job and takes pride in it.
Sixth, Mr Soans is medically fit for work and has been fit for work since 12 October 2022.
Seventh, Mr Soans personal circumstances are relevant. The likelihood that he will readily obtain alternative employment is not high especially because he has served for so long with the one employer. His wife does not work. His own love for his job as Tram Driver and for his employer should not be diminished in importance in the equation relevant to harshness.” 120
[73] The Respondent submits that the dismissal was fair in the circumstances. In particular, there was a valid reason for the dismissal because:
“• Mr Soans knew of his stroke diagnosis from 8 July 2021 and his medication requirements post-stroke, but lacked candour with each doctor about these matters;
• Mr Soans denied that Dr Altaf told him of the assessment of temporary unfitness and a 3 month suspension from work yet he conveyed that fact to his own GP;
• Mr Soans maintained a fiction and a falsehood in the investigation process: that he was never told by Dr Altaf about his ‘unfit’ assessment. He should have conveyed it to Dr Turnbull. He did not. Dr Turnbull was then led into error in his assessment.”
[74] Furthermore, that Mr Soans’ conduct and his lack of candour with third party medical professionals resulted in a series of events which he is to blame for. If Mr Soans’ stroke caused memory loss or any confusion in the period July 2021 to October 2021(which is not proved and not admitted), there was a failure by Mr Soans to call any evidence on that important matter. Dishonesty in the investigation process can constitute misconduct in employment. 121 That is a valid reason for dismissal.
[75] The Applicant was dismissed for failing to disclose his medical diagnosis to either of two medical practitioners who assessed his fitness for work, contrary to his obligations under the National Standard, and for his dishonesty during the investigation relating to the matter. 122 It is submitted that this dishonesty destroyed the relationship of trust and confidence between the Applicant and Respondent and amounted to serious misconduct.
[76] There are significant factual contests as between the evidence of the Applicant and the two doctors. However, for the reasons set out earlier, where there is a conflict on the evidence, I prefer the evidence of the doctors to that of the Applicant’s.
[77] As part of the background to the consideration, I agree with the Respondent’s submissions to the effect that Mr Soans, like all employees, is required to maintain the confidence of his employer in the employment relationship and there is also a duty of good faith and fidelity requiring candour in the employment relationship. I also agree that duty of candour extends to an employee interacting with a third-party provider to an employer, in this case, doctors engaged by the company, to provide guidance and/or assessments to the employer as to the employee’s fitness to work. This framework is a fundamental part of the way in which Yarra Trams seeks to ensure that it complies with the National Standard, which applies to Yarra Trams and to the Applicant’s employment.
[78] As a Tram Driver, Mr Soans had obligations that he had to comply with under the National Standard. Evidence was given by Ms Belgin Bayram (Manager, Essendon and Brunswick Lines) that the Applicant was provided training on these obligations. This included The Safety Management System Training as an online module. That module included information about the National Standard and obligations of rail safety workers, including:
• a summary of the health and safety obligations of Yarra Trams employees, including that employees must notify their supervisor or manager of any medical or health conditions, or medication, that may affect their ability to perform their work safely; and
• a summary of the obligations on rail safety workers in respect of rail safety medicals which includes:
• notifying Yarra Trams of any temporary or ongoing health condition or change in health status that is likely to affect their ability to perform their work safely; and
• providing complete and accurate information concerning their medical history to the assessing authorised health professional.
[79] It also includes various “knowledge checks”, which employees are required to complete correctly before proceeding, one of which is as follows:
“As a rail safety worker, you are responsible and accountable for notifying Yarra Trams of any temporary or ongoing health condition, or changing health status that is likely to affect your ability to perform your work safely. Is this statement true or false?” 123
[80] Ms Bayram provided evidence by way of an email from Ms Kathryn Harvey (Manager, Safework & Safety Culture) that the Applicant completed the Yarra Trams’ Safety Management System Training online on 12 July 2019 which included this component. 124
[81] In his witness statement, the Applicant claims that he did not recall ever having received training in relation to the National Standard for Health Assessment of Rail Safety Workers or what you had to do if you suffered from a medical event. During the hearing, when asked his knowledge of the rail safety standards, he agreed that he received refresher training in the depot where they touch many aspects, including on “on safety, on speed, on coming to work on time”. 125 As to whether he had completed the online training his evidence was most unsatisfactory:
“Are there online training courses occasionally as well?---No, no.
You deny any online training course, do you?---Because I don't know online.
So is it your evidence that you've never sat in front of a computer at the depot and - - -?---I've done that and I told my supervisor, 'I do not know how to do this.'
Right?---Then he shows me - -
That you click on things along the way?---Click on this and click on that, and most of the work he does.
When you click on something, a screen comes up and you read the screen, don't you?---Can't understand that, so again I call him and he does it for me.” 126
[82] His evidence was also that he had no “computer knowledge”. 127
[83] In my view, the Applicant’s evidence demonstrates that the Applicant was aware of the online training and participated in it. He had trouble navigating his way through it but was assisted by his supervisor. However, having been so assisted, it is not plausible that the Applicant could not read the text of what was written on the computer screen. There was no suggestion that the Applicant was unable to read English. In any event, even if the Applicant did not understand his obligations as a result of the online training, Ms Bayram also gave the following evidence as to action taken by the employer to inform employees including the applicant of their obligations under the National Standard:
“On 7 December 2021, Ms Kingdom had a discussion with Nick Macris (who was Mr Soans’ Team Manager between 2016 and 2020). He said to her that he provided a Yarra Trams document titled “Rail Safety Worker Obligations” to each of his team members prior to them attending their periodic health assessment in 2017 and 2018.
All Yarra Trams rail safety workers underwent periodic health assessments during this period as a result of a change in the National Standard regarding the characterisation of rail safety workers. Attached and marked “BB-10” is a copy of the “Rail Safety Worker Obligations” sheet, which includes the following statements:
“As a Rail Safety Worker, you have a duty of care to yourselves and others. This notice will provide you with knowledge and understanding of the implications of your role on your own safety, your fellow workers, the safety of the public, the network and, the importance of your health and fitness to rail safety.
You have a responsibility under the Rail Safety Act (Vic) [2006] to notify Yarra Trams of any temporary or ongoing health condition or change in health status that is likely to affect your ability to perform your work safely. You must also provide complete and accurate information concerning your medical history to the assessing Authorised Health Professional, as well as comply with any review requirements of a health assessment as directed by either Yarra Trams, the Authorised Health Professional or the Chief Medical Officer (CMO)…” 128
[84] The Respondent submitted, and I agree, that evidence was unchallenged and demonstrates that the employer had a process for disseminating information to its workforce, and particularly to Mr Soans, about his responsibilities as a rail safety worker on at least two occasions by the provision of a rail safety worker obligation sheet that was written in plain English. 129
[85] I do not accept the Applicant’s claim that he did not know of his obligations under the National Standard. The claim that he could not understand what was written on the computer screen when doing the online training was not credible. In any event, he was provided with the relevant information via a rail safety worker information sheet on two occasions. On the balance of probabilities, I am satisfied that the Applicant did know of the relevant obligations to disclose any temporary or ongoing health condition or change in health status that is likely to affect his ability to perform his work safely and to provide complete and accurate information concerning his medical history to the assessing authorised health professional.
[86] Against this background, the further factual findings and their relationship to the finding of misconduct is as follows.
[87] The Applicant knew that he had suffered a stroke soon after being admitted to hospital. 130 The evidence is he told this to his own doctor on 13 July 2021, being Dr Hussain. His own evidence is that he made a deliberate decision not to tell Dr Altaf the same thing he was prepared to tell his own doctor, being that he had a stroke, because he was fearful of the possible consequences for his employment. The Applicant’s claim that this was his preferred approach to dealing with the matter because he did not want to provide information to Dr Altaf that was wrong or misleading is not credible given how frank he was with his own doctor about his condition when he saw him some 5 weeks earlier.
[88] While he consented to Dr Altaf accessing his medical records from the hospital, this was a suggestion made by Dr Altaf, not the Applicant. 131 The claim by the Applicant that he thought it better that Dr Altaf make a decision based on all the information, including from the hospital records, would have more force to it if it was the Applicant who initiated that approach. However, even then this would still not explain his lack of candour by failing to tell Dr Altaf of the simple fact that he had a stroke and the various symptoms he had suffered, facts that he was quite capable of telling his own doctor seemingly without concern 5 weeks earlier, but deliberately withheld from Dr Altaf. The Applicant’s evidence is that Dr Altaf asked him “what happened”. The obvious and honest answer that should have been given as a minimum to comply with his obligation under the National Standard is the answer he gave his own treating doctor 5 weeks earlier, that he had a stroke. Instead, I accept the evidence of Dr Altaf that he said no diagnosis was given, consistent with Dr Altaf’s contemporaneous notes. I also accept that the Applicant described his symptoms as “feeling tired”.132 This was an obvious understatement of his symptoms compared to what he told Dr Hussain, which included slurred speech and weakness in his left hand and foot. The submission of the Applicant that he was being required to provide something less than accurate information regarding his medical history is rejected. He would not be in the situation he is in if he had of presented the details. That is, he knew that he had a stroke and was on medication. I also reject the submission that his reticence was the doctor being “a complete stranger”.133 Periodic medical assessments have been a regular feature of the Applicant’s working life with Yarra Trams.
[89] Further, I prefer the evidence of Dr Altaf that he asked the Applicant if he was on any medication, and he denied that he was. 134 The Applicant knew that he was on medication from the time he left the RMH.135 The Applicant was dishonest when he told Dr Altaf that he was not on any medication.
[90] In closing submissions, the Applicant contended that it was effectively Dr Altaf at fault for not doing one of two things. These being not certifying the Applicant fit for work until he had viewed the hospital records, or in the alternative, not accessing the hospital records at the time of the consultation on 19 August 2021. I do not accept that proposition. There was no evidence that Dr Altaf was wrong to deal with the matter in the way that he did. The only evidence was the proposition that was put to him that he should not have certified the Applicant fit to work without seeing the hospital records. 136 Dr Altaf’s answer to that was reasonable having regard to his evidence as to the importance of patient information and its role in a review outcome.
[91] There is no doubt that Mr Soans, as a direct result of this lack of candour with Dr Altaf, was assessed as fit for duties by Dr Altaf. Dr Altaf gave unchallenged evidence regarding the importance of patient information and how it leads to a review outcome. 137 This is hardly surprising. The treating medical practitioner relies on the patient’s candour in order to be able to assess, in this case, the safety of the Applicant driving a tram. The Applicant deliberately withheld the critical information that he had a stroke and denied taking any medication. On the basis of that information, and his physical examination, Dr Altaf assessed the Applicant as fit for duties. Mr Soans then drove trams within the 3-month period from the time he had suffered the stroke and that put Yarra Trams in breach of the National Standard.
[92] On 3 September 2021, the Applicant returned to Dr Altaf. It is not in contention that Dr Altaf said to the Applicant “so you had a stroke” or words to that effect. There is a contest as to what else was said to the Applicant. I prefer the evidence of Dr Altaf that he told the Applicant that he was not fit to drive trams for at least 3 months and Dr Altaf could only reassess his fitness for duty after that time once he received a medical report from a neurologist. 138 While the Applicant agrees he was told he needed to be assessed by a neurologist, he disputes that he was told that he was unfit to drive trams for 3 months. However, the notes of his treating doctor, Dr Hussain, show a record that is exactly what the Applicant told him on the same day. I prefer Dr Altaf’s evidence that he explained to him the requirements under the National Standard and discussed the letter which he gave to him about the process.
[93] Turning to the appointment with Dr Turnbull for a periodic health assessment on 1 September 2021, I prefer the evidence of Dr Turnbull as to what was said at the consultation. The Applicant had ticked “yes” to the question as to having a stroke and then ticked “no”. In light of that fact, I accept that Dr Turnbull directly questioned the Applicant as to whether he had a stroke and the Applicant denied that he had. This is consistent with the clear notes of the doctor where he records “NO CVA/TIA – DISCHARGED”. There is no reason for Dr Turnbull to write this as an extra note on the record without having sought clarification on the point from the patient. Similarly, I prefer the evidence of Dr Turnbull that the Applicant denied when asked that he was taking medication. I don’t accept the claim that he handed Dr Turnbull a note with the names of the medications he was taking written on it. The note was not produced. In any event, it is not credible that Dr Turnbull would have written “nil medication” if he had been handed a note which stated the medications being taken by the Applicant.
[94] The Applicant claims that he told Dr Turnbull about the need to see the neurologist and that Dr Turnbull told him what bus to catch to get there, including the particular number of the bus. However, it emerged that particular bus did not go to where the Applicant claimed it did. Further, Dr Turnbull’s evidence, which I accept, is that he is not familiar with the bus network and was not able to advise Mr Soans what bus to catch and that the conversation about buses did not occur. I am satisfied that the Applicant did not tell Dr Turnbull he was temporarily unfit for duties for 3 months pending a neurological assessment. Indeed, given Dr Turnbull’s knowledge of the National Standard, which is not challenged, he would have been knowingly acting contrary to its requirements if he certified the Applicant’s as fit for duty had the Applicant told him any of the things he claims to have told him, being that he had a stroke, that he handed him a list of medications consistent with the treatment of a stroke or even that he was seeing a neurologist, I don’t accept the submission of the Applicant that what occurred in the conversation between Dr Turnbull with the Applicant was simply a “misunderstanding”.
[95] At the disciplinary meeting on 22 October 2021, the Applicant expressly stated that when he saw Dr Turnbull, he did not know he had been deemed temporarily unfit, and that “Altaf did not tell me this”. 139 For the reasons set out earlier, I do not accept that this is true. The Applicant knew he was unfit to drive trams for 3 months pending a neurological report.
[96] The Applicant alleges that both Dr Altaf and Dr Turnbull breached the confidentiality obligations that applied to them under the terms of the National Standard. This is relevant to the consideration in the submission of the Applicant that the reason for dismissal was not sound and defensible because the National Standard makes clear that the information passing between medical practitioner and worker was confidential to the medical practitioner and worker and should not have been disclosed to anyone, including Yarra Trams. The National Standard provides as follows:
“The relationship between the health professional and the worker/patient is governed by the ethics of the relevant health professional and by privacy laws. The relationship differs from the usual doctor-patient relationship because of the involvement of a third party – the rail transport operator or employer. The health professional should not provide personal or medical information to the employer, unless specifically allowed to by the worker. Only information regarding work capacity should be shared. However, the health professional should permit the rail transport operators Chief Medical officer (CMO), if there is one, to access the worker’s medical records as specified later in this section.
The Authorised Health professional or CMO (in keeping with company practice) should liaise (sic) with the worker’s general practitioner and treating specialists, whether appropriate, to clarify the information relating to the workers current health status.” 140
[97] During the hearing, Dr Turnbull conceded that he requirement as to confidentiality meant that “you can’t talk to the employer about the health issue”; 141 that “when you have a consultation with, in this case Mr Soans, the only thing that you are permitted to divulge, absent permission from Mr Soans is whether he has capacity to work or not”;142 and “you are not permitted to tell the employer anything that he has said to you during the course of the consultation that is personal to him”.143 During cross examination, Dr Turnbull made frank concessions that he had breached the confidentiality obligations that applied to him by virtue of the National Standard.144
[98] The Respondent asserted that Dr Turnbull was wrong to make that concession because clause 8.1 of the National Standard permits disclosure as between “the rail transport operator’s Authorised Health Professional(s)” 145 – that is plural. Here, two doctor assessors communicated with each other and it would be perverse to read the National Standard to preclude that circumstance.146 However, I agree with the Applicant’s reasoning that is not the correct construction of that paragraph. I am satisfied that there was a breach of the confidentiality standards by Dr Turnbull as conceded by him.
[99] As to Dr Altaf, he did not make any concessions that he had breached the confidentiality provisions. The allegation directed at Dr Altaf was that he breached the confidentiality obligation of the National Standard in an email he sent on 7 September in response to a request by Ms Kingdom to provide a “short summary outlining why you changed your opinion on Warren Soans medical status from his initial medical which occurred on 19 August 2021 and the review on Friday 3 September 2021” 147 The email sent in reply by Dr Altaf was in the following terms:
“I saw Warren Soans on 19th August 2021 for a triggered Category 1 Rail Safety Medical assessment.
I enquired the reason he required time off work and an admission to hospital. He was unable to provide me with the diagnosis. There were no concerning clinical findings or reported symptoms or conditions of any concern on direct questioning.
I therefore opined that he was fit to work subject to review with me two weeks later in which time he provided consent for me to contact the hospital to access his medical information.
On the morning of his review- Friday 3rd September we received the report from the hospital which confirmed a diagnosis. This diagnosis as per the National Standard for Health Assessment of Rail Safety Workers, requires a minimum of 3 months off work and a specialist letter outlining certain details prior to returning. As he is still within the three months I have marked him temporarily unfit and advised him that he needs to provide a specialist report.”
[100] In my view, Dr Altaf was very careful with his language in responding to the request for information from Ms Kingdom. He has stated that there were no issues of concern regarding clinical finding, reported symptoms or conditions of concern at the first consultation. He then makes clear that he received the hospital report on 3 September which “confirmed a diagnosis”. He does not say what that diagnosis is but does say that the diagnosis means that the National Standard compels him to have 3 months off work and a specialist letter, without saying what type of specialist, which would have to outline certain details prior to him returning.
[101] The information provided in this email by Dr Altaf is not personal medical information. It is information regarding the work capacity of the Applicant given against the background of Dr Altaf declaring the Applicant has the capacity to work in the first instance, then in the second instance declaring that he does not. In my view, the information he provides explains why he changed the position, without providing personal or medical information. I am not satisfied that Dr Altaf breached the confidentiality provisions.
[102] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s.387.
[103] The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s.387(a)). It is a well-established principle that the reason for dismissing the applicant must be sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason.148
[104] I start this consideration by dealing with the submission of the Applicant to the effect that the reasons for dismissal cannot be relied upon because no one should have had this information available to them, and been able to use it, including Yarra Trams and the Commission. 149 I don’t accept that proposition. Firstly, there was an investigation process that began because of differing assessments of fitness to work from two doctors. Mr Soans participated in that investigation. He ultimately disclosed to his employer on 26 November 2021 that he had a stroke. Secondly, the confidentiality point does not alter the consideration of whether there was a valid reason. I agree with the Respondent that the objective fact of the employee conduct is the point of focus in making the determination. That is, in this case, did the employee engage in conduct that was inconsistent with his obligations to his employer.
[105] I consider that Yarra Trams had a valid reason to dismiss Mr Soans. I am satisfied that the Applicant was trained in the requirements of the National Standard. He should have been at least aware of the requirement to notify Yarra Trams of any temporary or ongoing health condition or change in health status that is likely to affect his ability to perform his work safely and to provide complete and accurate information concerning his medical history to the assessing authorised health professional. The health professionals in this matter, Dr Altaf and Dr Turnbull, are agents of his employer. Mr Soans knew of his stroke diagnosis from soon after the time he was admitted to hospital, and he knew he was taking medications as a result of that diagnosis. However, he lacked candour with the doctors about those matters. He did not tell Dr Altaf that he had a stroke or that he was taking medications. He was not honest and candid about that. This led to him being found fit to work and he then drove trams in breach of the National Standard. He denied that Dr Altaf told him he was unfit to work for 3 months, but for the reasons set out above I prefer the evidence of Dr Altaf that the Applicant was told this. He then failed to tell Dr Turnbull of this fact or that he needed to see a neurologist before returning to driving trams, denied that he had a stroke when directly asked about it and did not disclose that he was taking medications. This led to him again being certified as fit to work when he could not be so found. The Applicant was dishonest during the investigation process for the reasons set out earlier. Each of these actions by the Applicant are valid reasons for dismissal.
[106] Having regard to the evidence, I am satisfied, on the balance of probabilities that the Applicant has engaged in misconduct. The Applicant’s lack of candour and his false and misleading statements made to the doctors breached his duty of good faith and fidelity to his employer, as did his misconduct in misleading his employer during the investigation. I am satisfied that there is a valid reason for the Applicants dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.
[107] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their capacity or conduct (ss.387(b) and (c)).
[108] The background evidence set out earlier shows that each of the issues and facts underlying the valid reason for dismissal was notified to Mr Soans. That was the focus of the investigation undertaken by Yarra Trams to get to the bottom of what had happened given the inconsistent reports from the doctors. The process was conducted over the period October 2021 to mid-January 2022. 150 He was also provided an opportunity to respond to the valid reason pertaining to his conduct. The extensive procedural fairness afforded to Mr Soans weighs against a finding the dismissal was unfair.
[109] With respect to s.387(d), there is no evidence that there was an unreasonable refusal by Yarra Trams to allow Mr Soans to have a support person present to assist at any discussions relating to dismissal. He represented himself at the start of the process and then enlisted support from the RTBU. This is a neutral consideration.
[110] If a dismissal relates to unsatisfactory performance, s.387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. However, Mr Soans’ employment was not terminated for unsatisfactory performance, but for issues relating to his capacity. This is a neutral consideration.
[111] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f), (g)). There was no procedural deficiency in the manner of effecting the dismissal such that these provisions are relevant. Sections 387(f) and (g) are neutral considerations.
[112] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s.387(h)). The Applicant raises a number of matters said to be relevant to the consideration. The first of these I will refer to as the personal matters. I agree with the submission that it is relevant that Mr Soans is 63 years of age and has unfortunately suffered a stroke, though fortunately a minor stroke. It is also relevant that the likelihood he will readily obtain alternative employment is not high, that he loves his work, is liked by his fellow employees and that his wife can no longer work. He also worked for the Respondent for approximately 21 years. This is a significant period of time and is a period I consider to be of reasonably long service. All of these factors weigh in favour of a finding the dismissal was harsh.
[113] I do not accept the submissions of the Applicant to the effect that what Applicant did was to simply act on medical advice provided by the hospital and that he was careful in making sure the medical information he provided to Dr Altaf was accurate. He did the opposite of that. Mr Soans deliberately withheld the key information that he had a stroke and that he was on medication. He was obligated under his contract of employment to “notify Yarra Trams of any temporary or ongoing health condition or change in health status that is likely to affect your ability to perform your work safely”. He also had an obligation to “provide complete and accurate information concerning your medical history to the assessing Authorised Health Professional, as well as comply with any review requirements of a health assessment as directed by either Yarra Trams, the Authorised Health Professional or the Chief Medical Officer (CMO).” 151 This factor does not weigh in favour of unfairness.
[114] It is asserted that Yarra Trams knew at all relevant times that Mr Soans had a stroke and did nothing itself to inform the doctors of this fact. This claim is not established on the evidence before me. There was no failure of the Respondent. In fact, when they realised there were inconsistent health assessments coming from the two doctors, they commenced an investigation in order to understand why. Nor do I accept that there was a failure of Yarra Trams to elicit directly from the Applicant as to why he was in hospital. I agree with the Respondent this is a somewhat ironic submission given the submissions on the need for confidentiality of medical information. The approach Yarra Trams took of requiring a triggered health assessment was the approach they should have and did take. This factor does not weigh in favour of a finding of unfairness
[115] The Applicant has a long period of employment and loves his job. I have already taken those factors into account as mentioned above. The Applicant asserts he has a “relatively good employment history”. It is clear on the evidence that the Applicant’s employment history has included warnings for his conduct and performance. 152 His employment history, beyond that of his long period of service is not a factor that weighs in favour of the Applicant.
[116] The fact that Mr Soans has now been assessed as fit for work is indeed welcome news but is not a factor that weighs for or against a finding of unfairness.
[117] It is submitted that even if misconduct can be made out, that the sanction of dismissal is disproportionate in the circumstances. This is said to be especially so because it was open to Dr Altaf at the 19 August consultation to wait for the hospital records before certifying Mr Soans as fit to return to work. As I said earlier, I do not accept this submission which seeks to shift the blame to Dr Altaf for the lack of candour of the Applicant. In any event, it is the lack of candour and dishonesty of the Applicant which is the central consideration here. The conduct that the Applicant engaged in is serious and strikes at the heart of the employment relationship and in the circumstances, dismissal was not a disproportionate response. The Applicant was paid in lieu of the notice required, notwithstanding the view of the Respondent that he had engaged in serious misconduct. No unfairness arises from these matters.
[118] Turning to the submissions made by the Applicant directed at the confidentiality (or otherwise) of the dealings of the Applicant and his employer with Dr Altaf and Dr Turnbull. As set out earlier, this is not a factor that bears upon the consideration of valid reason. However, I agree that it is a factor that should be considered as a relevant matter.
[119] For the reasons set out earlier, I am satisfied that Dr Turnbull breached the confidentiality requirements, but that Dr Altaf did not. I have considered the submissions made by the Applicant on this matter and agree it is a factor weighing in favour of unfairness. However, I agree with the Respondent that it is also relevant that any breaches that did occur came about as a result of the Applicant’s lack of candour and dishonesty in his dealings with the doctors. That in turn has led to an investigation lead by his employer to understand what the situation was and in that environment the breaches have occurred. Nevertheless, the breach of the confidentiality requirements under the National Standard did occur and should not have. Overall, this factor weighs in favour of a finding of unfairness.
[120] The Respondent submits I ought to take into account that Mr Soans was trained in the National Standard and breached it. He drove a tram within 3 months of suffering a stroke. That was unsafe and should not have happened. That conduct is also a relevant matter. 153 However, this has to be balanced against the Respondent’s failure to have the Applicant attend a medical assessment as per its own procedures prior to him driving trams on the first 3 occasions. In the circumstances, this is a neutral consideration.
[121] Having taken into account all of matters above, I am not satisfied that that the dismissal was unfair. I have had regard to all of the factors under s.387 of the FW Act. There are valid reasons for Mr Soans’ dismissal, and this is a factor that weighs against Mr Soans. In respect to the procedural fairness to effect the dismissal considered under s.387(b) and (c), this also weighs against Mr Soans. The personal matters considered above weigh in favour of the Applicant as does the consideration of the breach of the confidentiality provisions of the National Standard. All other factors are neutral. I am satisfied the dismissal was not harsh, unjust or unfair, given the gravity of the conduct and the procedural fairness afforded the Applicant. These factors outweigh the factors weighing in favour of the Applicant. Taking into account all of the factors to which I am to have regard, I am not satisfied that the dismissal is harsh, unjust or unreasonable.
[122] Having regard to s.387 of the FW Act, I consider that Mr Soans’ dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed. An order to that effect will be separately issued.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR747263>
Appearances:
R Reitano of Counsel for the Applicant.
N Harrington of Counsel for the Respondent.
Hearing details:
2022.
Melbourne:
June 15, 16.
August 25.
Final written submissions:
Applicant, 15 July 2022.
Respondent, 4 August 2022.
1 Respondent’s Outline of Submissions at Digital Court Book (DCB) p.102.
2 Annexure WS-9 at DCB p.91.
3 Form F3 at DCB p.3.
4 Form F3 at DCB p.20.
5 Statement of Warren Soans at DCB p.26, [3].
6 Exhibit R8; Annexure ST-1 at DCB p.296.
7 Exhibit R8; Annexure ST-1 at DCB p.309.
8 Exhibit R8; Annexure ST-1 at DCB p.310.
9 Exhibit R8; Annexure ST-1 at DCB p.310; Applicant’s Closing Submissions dated 15 July 2022 at [22].
10 Annexure ST-1 at DCB pp.308, 320-321.
11 Annexure ST-1 at DCB p.309-310.
12 Annexure ST-1 at DCB pp.414, 418.
13 Respondent’s Outline of Submissions at DCB p.100, [15].
14 Transcript at PN131-PN134.
15 Annexure BB-8 at DCB p.201.
16 Respondent’s Closing Submissions dated 4 August 2022 at [29].
17 Annexure WS-2 at DCB p.37.
18 Annexure WS-1 at DCB p.35.
19 Annexure WS-2 at DCB p.36.
20 Statement of Warren Soans at DCB p.27, [5].
21 Statement of Warren Soans at DCB p.27, [6]; Annexure WS-3 at DCB p.42; Respondent’s Outline of Submissions at DCB p.143, [8].
22 Annexure KB-1 at DCB p.110.
23 Statement of Tina Stojkovska at DCB p.143, [10].
24 Transcript at PN787.
25 Statement of Warren Soans at DCB p.28, [12].
26 Form F2 at DCB p.5.
27 Form F2 at DCB p.16.
28 Respondent’s Outline of Submissions at DCB p.101, [15].
29 Annexure WS-6 at DCB p.71.
30 Annexure ST-3 at DCB p.542.
31 Annexure ST-4 at DCB p.548.
32 Annexure WS-6 at DCB p.72.
33 Annexure WS-4 at DCB p.46.
34 Form F2 at DCB p.6; Statement of Belgin Bayram at DCB p.158, [20].
35 Annexure WS-8 at DCB p.84-85.
36 Annexure WS-9 at DCB p.91.
37 Annexure WS-10 at DCB p.93, 95-96.
38 Statement of Warren Soans at DCB p.27, [5].
39 Annexure WS-2 at DCB p.36.
40 Statement of Warren Soans at DCB p.27, [6].
41 Transcript at PN221.
42 Transcript at PN251-PN255.
43 Transcript at PN238.
44 Transcript at PN241.
45 Transcript at PN286.
46 Statement of Warren Soans at DCB p.28, [12].
47 Transcript at PN277.
48 Transcript at PN279.
49 Statement of Dr Khayyam Altaf at DCB p.276, [12].
50 Statement of Dr Khayyam Altaf at DCB p.276, [13].
51 Exhibit R1; Transcript at PN1719-1720.
52 Transcript at PN270.
53 Transcript at PN269.
54 Annexure BB-3 at DCB p.176.
55 Statement of Warren Soans at DCB p.28, [11].
56 Transcript at PN1905.
57 Statement of Dr Khayyam Altaf at DCB p.277, [17].
58 Ibid at DCB p.278, [21].
59 Ibid.
60 Ibid at [22].
61 Transcript at PN1736.
62 Transcript at PN320.
63 Transcript at PN303.
64 Transcript at PN311-313.
65 Transcript at PN342.
66 Transcript at PN379.
67 Transcript at PN346.
68 Exhibit R11.
69 Transcript at PN384-PN391.
70 Transcript at PN391; Exhibit R1.
71 Exhibit R1.
72 Transcript at PN407-PN412.
73 Annexure WS-5 at DCB p.51.
74 Statement of Dr Stuart Turnbull at DCB p.287, [16].
75 Transcript at PN1725-PN1726.
76 Statement of Dr Stuart Turnbull at DCB p.287, [16].
77 Statement of Warren Soans at DCB p.29 [18].
78 Annexure WS-5 at DCB at p.51.
79 Transcript at PN461-463.
80 Transcript atPN1593 and DCB p.289.
81 Statement of Warren Soans at DCB p.30, [18].
82 Transcript at PN621.
83 Transcript at PN633.
84 Transcript at PN1347-PN1348; Statement of Dr Stuart Turnbull at DCB p.290, [27].
85 Statement of Dr Stuart Turnbull at DCB p.290, [27].
86 Statement of Dr Khayyam Altaf at DCB p.275, [5]; Statement of Dr Stuart Turnbull at DCB p.284, [2].
87 Statement of Dr Stuart Turnbull at DCB p.289, [23].
88 Statement of Dr Stuart Turnbull at DCB p.288-289, [20].
89 Annexure BB-2 at DCB p.169.
90 Annexure TS-3 at DCB p.152.
91 Transcript at PN521.
92 Transcript at PN523.
93 Exhibit R1.
94 Annexure BB-7 at DCB p.190.
95 Statement of Warren Soans at DCB p.28, [12].
96 Statement of Belgin Bayram at DCB p.158 [19(b)].
97 Annexure BB-7 at DCB p.193.
98 Transcript at PN2203.
99 Transcript at PN2069.
100 Transcript at PN124.
101 Transcript at PN126-PN127.
102 Transcript at PN1577-PN1579.
103 Statement of Dr Stuart Turnbull at DCB p.286, [12]; Transcript at PN1576-PN1579.
104 Transcript at PN126-PN127.
105 Form F2 at DCB p.6, [2]; Statement of Warren Soans at DCB p.33, [34].
106 Ibid.
107 Transcript at PN184.
108 Transcript at PN221.
109 Statement of Dr Khayyam Altaf at DCB p.276, [12]: TB276; Statement of Dr Stuart Turnbull at DCB p.288, [16].
110 Respondent’s Closing Submissions dated 4 August 2022 at [17a-g].
111 Transcript at PN2048.
112 Transcript at PN2084-PN2089.
113 Applicant’s Closing Submissions dated 15 July 2022 at [34].
114 Applicant’s Written Submissions at DCB pp.21-22; Applicant’s Closing Submissions dated 15 July 2022 at [35]-[36].
115 Applicant’s Written Submissions at DCB p.22.
116 Ibid.
117 Annexure WS-5 at DCB p.50.
118 Applicant’s Closing Submissions dated 15 July 2022 at [37].
119 Applicant’s Closing Submissions dated 15 July 2022 at [38].
120 Applicant’s Written Submissions at DCB p.24.
121 Respondent’s Outline of Submission at DCB p.103, [27]; Telstra Corporation Ltd v Streeter decision at FN8; See also Parris v Trustees of Edmund Rice Education Australia t/a St Kevins’ College [2021] FWC 2341 at [291] – [292] per Lee C.
122 Respondent’s Outline of Submissions at DCB pp.97-98, 102-103.
123 Statement of Belgin Bayram at DCB p.159, [23]; Annexure BB-9 at DCB p.202.
124 Annexure BB-8 at DCB p.200 and BB-9 at DCB p.202.
125 Transcript at PN173-PN177.
126 Transcript at PN178-PN183.
127 Transcript at PN217.
128 Statement of Belgin Bayram at DCB p.160, [23(b)].
129 Transcript at PN2182-PN2186.
130 Transcript at PN187-PN188.
131 Statement of Warren Soans at DCB p.28, [11].
132 Exhibit R1.
133 Transcript at PN2095.
134 Statement of Warren Soans at DCB p.28, [12].
135 Transcript at PN238.
136 Transcript at PN1938-PN1939.
137 Transcript at PN1919: “I think I assumed from the information that he’d provided me, which is absolutely critical in making a diagnosis…”; Transcript at PN1977: “the history provided. It’s huge.”.
138 Transcript at PN1733.
139 Annexure TS-3 at DCB p.152.
140 Annexure ST-1 at DCB p.317.
141 Transcript at PN1389.
142 Transcript at PN1393.
143 Transcript at PN1394.
144 Transcript at PN1498-PN1524.
145 Annexure ST-1 at DCB p.342.
146 Respondent’s Closing Submissions dated 4 August 2022, at [122].
147 Annexure KA-1 at DCB p.283; Transcript at PN1863-PN1873; Applicant’s Closing Submissions dated 15 July 2022 at [29].
148 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
149 Transcript at PN2134.
150 Statement of Belgin Bayram at DCB p.159, [22]-[23].
151 Annexure BB-10 at DCB p.213.
152 Statement of Belgin Bayram at DCB p.163, [35].
153 Respondent’s Closing Submissions dated 4 August 2022 at [151].