FWA 6948
Fair Work Act 2009
Forbes Australia Pty Ltd T/A Hunt Boilers
MELBOURNE, 18 OCTOBER 2011
Application for unfair dismissal remedy.
 This is an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.
 Mr John Harte commenced employment with Forbes Australia Pty Ltd trading as Hunt Boilers (Forbes) as a technician level 1 in 2003. In December 2004 Mr Harte had an accident at work in which he sustained a serious injury to his foot. On his return to work in August 2006 he undertook some office-based duties for a short period of time before moving back to his technical work. In November 2007 Mr Forbes was promoted to a service technician level 2 and in December 2007 he was promoted to a Service Supervisor - Mechanical (SSM).
 In mid 2010 Mr Harte had further surgery to his injured foot to remove a plate. Following this surgery he came to the view that his foot would never fully recover to its pre-injury status and settled a permanent disability claim.
 In April 2011 Forbes management wrote to Mr Harte and to his treating doctors expressing its concern that Mr Harte may not be able to return to his pre-injury duties.
 In April 2011 Forbes advised Mr Harte that he was being given 5 weeks’ notice of the termination of his employment. The notice period would expire on 10 June 2011. The reason for the termination of Mr Harte’s employment was that he could no longer perform the inherent requirements of his job. Mr Harte claims that his dismissal was unfair.
 The Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(e) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) any other matters that FWA considers relevant.
 Forbes claims that there was a valid reason for the termination of Mr Harte’s employment in that he was unable to perform the inherent requirements of his job. Mr Harte claims that he could perform the inherent requirements of his position.
 The issue of capacity to perform the inherent requirements of a position in relation to termination of employment was considered in J Boag and Son Brewing Pty Ltd v Button 1 (Boags) where a Full Bench of Fair Work Australia found:
When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered. 2
 The Full Bench in Boags cited the decision in Qantas Airways Ltd v Christie, 3 where McHugh J drew attention to the distinction between an employee’s job and their position:
A person’s job is therefore primarily concerned with the tasks that he or she is required to perform...
In the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks the person must perform. A person’s position...is primarily concerned with the level or rank at which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position. 4
 The Full Bench in Boags considered that there may be circumstances where the capacity to perform the inherent requirements of the job may form a valid reason for termination:
It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense. 5
 In determining this matter it is necessary to identify Mr Harte’s substantive position (his job) and the tasks required to be undertaken in that position.
What was Mr Harte’s job?
 In this matter there is no agreement as to the substantive position occupied by Mr Harte that his capacity should be assessed against.
 Mr Harte commenced his employment with Forbes in 2003. He was employed as a service technician level 1, the position he occupied at the time of his workplace accident in 2004. Subsequent to that he was promoted to a service technician level 2. At the time of the termination of his employment he was a Service Supervisor - Mechanical (SSM).
 Forbes submits that Mr Harte’s substantive (pre-injury) position is as a service technician. This role differs from that of the SSM as the SSM job requires both technician work and supervision of a team of technicians (site-based) and administrative (office-based) work.
 In March 2009 Mr Harte signed an individual employment contract with Forbes. Mr Harte says that this occurred at a time when Forbes was moving employees off the then enterprise agreement. The contract signed by Mr Harte states that his position is as ‘Service Supervisor - Mechanical’. 6 Despite the suggestions of Mr Ritchie for Forbes to the contrary, there is nothing to suggest that the contract was a fixed term contract nor does the form of the contract indicate the position occupied by Mr Harte was a temporary position. That Forbes chose to use the same contract for all employees with minor variations for position title, if an employee was a casual employee or on probation, does not make the contract signed by Mr Harte any less of a contract for the job he was doing than would otherwise be the case.
 There was no indication in Mr Harte’s employment agreement that suggested the role he was given as SSM was a modified version of the role. His job was that of SSM.
 In July 2010 Mr Harte had a further operation on the foot he injured in 2004. On his return to work in September 2010 he completed a return to work plan. 7 That plan suggests that Mr Harte’s duties were modified from that generally expected of the SSM position as part of the return to work plan. Mr Harte agrees that he wrote his return to work plan, which indicated that the tasks to be undertaken were ‘supervision tasks at the office’ including quotes, job coordination, customer contact and supplying parts. As well as ‘site work’, which included project supervision and one man jobs. An objective was set in the plan to spend two and a half days per week performing on-site work depending on work and pain levels. The tasks to be avoided were indicated as ‘long periods of heavy work...working off ladders or at height where balance is required. No work on uneven or unstable surfaces. No relocation or moving heavy equipment or materials particularly involving stairs.’8 This plan was signed by Mr Harte, Mr Truscott (then Group Manager for Forbes), Mr Whittingham (the Service Manager) and by Dr Deady, Mr Harte’s General Practitioner.
 This return to work plan in and of itself suggests that there were tasks generally expected of Mr Harte as SSM which he believed should be avoided as part of his return to work and rehabilitation. I should note, however, that I have been presented with little or no evidence on which to evaluate any change in the tasks undertaken by Mr Harte in the SSM position before and after the 2010 operation. An earlier return to work plan in 2007 completed prior to him taking up the SSM position indicated he could carry out most of his duties as a technician. 9
 Mr Harte’s treating doctors’ reports suggest that, following his return to work, there were tasks he should avoid.
 Dr Deady indicated in a return letter to Mr Truscott of Forbes that Mr Harte would ‘recover to resume his pre-injury [duties] by February 2012’ 10 although there is some question as to whether or not Dr Deady was fully aware of what the ‘pre-injury duties’ were. Dr Bedi, Mr Harte’s orthopaedic surgeon, stated in a letter of 20 May 2011 to Dr Deady that Mr Harte was able to carry out most of his pre-injury role but would always have ‘some restrictions with duties involving heavy lifting or work on uneven surfaces.’11 Dr Bedi also suggested in that letter that he thought it inappropriate that Mr Harte ‘work at height such as on a ladder or activities that require balance work.’12 I do not take this to mean Mr Harte should not undertake activities that require balancing at height on a ladder, as was suggested, but rather that Mr Harte should not undertake work at height such as on a ladder and should not undertake activities that require balance work. This is the only sensible reading of this sentence in the correspondence.
 Whilst I have not detailed the evidence here I should make it clear that I reject the evidence that the SSM role was created based on the requirements of Forbes’ insurers. It is clear that the position continues to exist following the termination of Mr Harte’s employment.
 It is clear from the decision in Boags that it is the substantive position that Mr Harte must be assessed against in terms of his capacity to perform the inherent requirements of the job.
 On the basis of the evidence I find that Mr Harte’s job at the time of the termination of his employment was as SSM. Mr Harte’s tasks in this position were modified by his return to work plan but it is not the modified tasks against which he should be assessed.
 The SSM position occupied by Mr Harte required both office-based and site-based work to be undertaken and the site-based work included technician work. It is this job against which Mr Harte’s capacity must be assessed.
What were the inherent requirements of that job?
 The work carried out by Forbes includes the installation, maintenance and servicing of commercial boilers. Whilst some work may be on a smaller, almost domestic, scale most of the work is of a larger commercial nature.
 The job occupied by Mr Harte was the SSM position. A determination of Mr Harte’s capacity to fulfil the inherent requirements of this job (position) must be against the substantive position, unmodified by the 2010 return to work plan signed by Mr Harte, Forbes management and his doctor.
 Mr Harte had restrictions on what work he could do as part of this return to work plan. I have found that the unmodified job or job with no restrictions involved both office-based and site-based work and that the site-based work included technician work. I take the technician work as similar to that as would be undertaken by a technician level 1 or 2 - that is it would involve the work undertaken by Mr Harte prior to and after his initial injury.
 The evidence as to the different components of the SSM job appear uncontroversial. The job had a supervisory role, it required management of both human and physical resources (ordering stock for example) and it also had a hands on, technical role. There is no agreement, however, as to how much time was required to be spent on each of these roles.
 Mr Truscott and Mr Donnison (Service Manager) stated that there was a requirement that the SSM role have at least 50% productive (chargeable) hours per week and that this level of chargeable work was required to ensure the technician work was profitable for the company. ‘Chargeable’ or ‘productive’ work is that work for which a client/customer of Forbes is paying for. Other work, including office-based work is not counted as chargeable work. Mr Donnison gave evidence that the current occupant of the SSM position is required to undertake 50% chargeable work.
 Mr Dennis occupied the position of Service Supervisor - Electrical (SSE) (an equivalent position to that of Mr Harte) and gave evidence that in that position it was expected that he would do about 10 hours a week chargeable site work and that he was not exempt from the requirement to have chargeable hours.
 Mr Harte says that he was never told that he needed to complete 50% chargeable hours. Whilst this may be true (although I make no finding on the matter) Mr Harte’s completion of his return to work plan clearly indicates that he contemplated that he needed to spend about 50% of his time in on-site work. 13 A fair proportion of this work would be chargeable work.
 Whether the amount of chargeable work required to be undertaken by Mr Harte was 50% of his weekly hours or some lesser amount there seems to be no disagreement that the position of SSM was required to undertake chargeable work for some part of the working week. It is not necessary that I determine exactly how much or whether the position was viable if the occupant did not fulfil the 50% requirement.
 I do find, however, that the capacity to undertake chargeable work was an inherent requirement of Mr Harte’s job as SSM.
 Mr Truscott’s evidence is that the on-site chargeable work required of Mr Harte was physically demanding work. It required working from heights, walking over uneven surfaces and on boiler tops. Further, it required balancing tasks, the use of a variety of tools, lifting and using ladders to access valves, controls etc on boilers. Mr Harte agreed in his evidence that these were generally some of the requirements of the position.
 Mr Whittingham was the Service Manager until he resigned in late 2010. His evidence is that the primary work demands on the mechanical technicians was the odd breakdown, installations, steam or water line reticulation, boiler tube replacements and the like. He stated that the Service Supervisors (Mechanical and Electrical) were required by the Managing Director to show at least 10-12 hours of productive work to show they were doing something.
 Mr Harte suggested that the balance of his work between office-based and site-based duties was at the discretion and direction of the Service Manager.
 Mr Donnison took over as Service Manager in November 2010. His evidence is that the on-site requirements of the SSM position would include plumbing, mechanical fitting, undoing valves and pipes, stripping down boilers, cutting, welding and grinding.
 I find that the inherent requirements of Mr Harte’s job as SSM include, in addition to supervisory responsibilities, the ability to work at heights, climb ladders, lift weights either alone or assisted and undertake work requiring some degree of balance. The tasks required to be undertaken include undoing valves, replacement of parts, breakdown of boilers, reticulation and the like.
Could Mr Harte perform the inherent requirements of his job?
 Mr Dennis gave evidence that he was aware that Mr Harte had some restrictions on what he could do when he returned to work in 2006 following the initial accident. In response to this other workers on-site juggled certain duties to take into account of these restrictions although it was not clear if this was still the case towards the end of Mr Harte’s employment.
 Mr Truscott was concerned that Mr Harte could not safely perform the duties he was expected to perform. Mr Truscott accepted that Mr Harte was performing all of the tasks asked of him but also said that these tasks would have been within the restrictions as specified in Mr Harte’s return to work plan. Mr Truscott gave evidence that he had observed Mr Harte having difficulty walking up the office stairs and apparently in pain.
 Mr Donnison, the current Service Manager, was concerned at Mr Harte’s ability to perform on-site work without requiring recovery days (incapacity to work days). He observed that Mr Harte appeared to be in increasing amounts of pain towards the end of the week and that he struggled up the stairs in the office. Whilst I acknowledge that neither Mr Truscott nor Mr Donnison is medically qualified they did observe Mr Harte across his working time and it is reasonable that they could comment on their observations of him. Mr Harte’s certificates of capacity 14 would tend to support the observations of Mr Truscott and Mr Donnison.
 The certificates of capacity were issued by Dr Deady or another doctor at the same practice. They indicated that Mr Harte should only undertake ‘light duties’ as set out in his return to work plan. Whilst I reject Mr Donnison’s evidence with respect to the number of ‘recovery days’ Mr Harte had as a proportion of available working days, the certificates of capacity speak for themselves. Mr Harte was restricted to ‘light duties’ in accordance with his return to work plan. Mr Donnison was concerned, having been to worksites, that Mr Harte could not adequately or safely perform the on-site duties of the SSM position.
 Dr Bedi gave evidence that if a person was taking every second Thursday or Friday off because of pain he would say that they are not able to cope with the tasks required of them. The medical certificates do show that Mr Harte did have a number of work days off in February. With respect to his letter of 20 May 2011, 15 Dr Bedi’s evidence is that he did not undertake a formal assessment of Mr Harte at the time and that he accepted on face value what Mr Harte said of his capabilities.
 It is clear from the certificates of capacity that Mr Harte was restricted to light duties as specified in his return to work plan. Whilst I accept that Mr Harte sought to and aimed towards 50% on-site work I find that at the time of the termination of his employment Mr Harte could not meet the site or chargeable requirements of the SSM position.
 This assessment can only be based on the evidence put before me. Unfortunately Mr Harte did not produce any evidence that he could fulfil all of the requirements of the SSM position, as opposed to the duties set out in the return to work plan. It seems to me that this, in part, was caused by a level of confusion as to what medical evidence the employer required of Mr Harte and how he could provide this evidence. Dr Bedi’s assessment was based on what Mr Harte said to him (this is no criticism of Dr Bedi). There was no evidence of any independent assessment of Mr Harte’s capacity or capabilities or work restrictions or evidence of an independently conducted workplace assessment, all of which may have helped in clarifying Mr Harte’s capabilities and capacity.
 It should be noted that Forbes, recognising the restrictions on Mr Harte, offered him the position of Service Manager in late 2010 and Service Coordinator in April 2011, both of which Mr Harte rejected.
 On the basis of the evidence before me I find that Mr Harte could not perform the inherent requirements of his job as SSM. In particular he could not perform the on-site or chargeable work required of the position.
Was the termination of Mr Harte’s employment harsh, unjust or unreasonable?
 Having found that Mr Harte could not fulfil the inherent requirements of his job I find that this is a valid reason for the termination of his employment. Whilst there may be circumstances where the inability to perform the inherent requirements of a job may not provide a valid reason for the termination of employment that is not the case here.
 Mr Harte was advised in a meeting with Mr Truscott on 4 April 2011 and by a follow up letter on 5 April 2011 16 that there were concerns about his capacity to undertake his job and return to his pre-injury position, and his frequent absences. Whilst there was substantial debate in this matter as to what Mr Harte’s pre-injury position was, it is clear that the concerns expressed by Mr Truscott went to the ability of Mr Harte to undertake technician duties either as a technician or as part of his role as SSM.
 Having received no response from Mr Harte to the discussion of 4 April 2011 and letter of 5 April 2011, although having received a very brief assessment from Dr Deady, Mr Truscott wrote to Mr Harte on 28 April advising that the company was withdrawing the position of ‘office duties/service duties’. 17 The letter also offered Mr Harte an alternative position of Service Coordinator (the position of Service Manager having been offered to him and rejected in late 2010). The letter clearly stated that if he did not accept the offer he was given ‘five weeks’ notice that [his] contract is to be terminated effective from May 6, 2011.’18 Mr Harte, should he not accept the offer of employment, was to commence working his five week notice period on 6 May 2011. His last day of employment was to be 10 June 2011.
 Whilst Mr Harte says that the office duties/service duties position was not the SSM position he occupied, it is clear, in my opinion, that the employer was referring to the position occupied and the duties being undertaken by Mr Harte at this time. It makes no sense to suggest that the letter referred to a position or work done by Mr Harte following his return to work in 2006. Even if this was what Mr Harte thought he had the time and the opportunity to discuss this with Mr Truscott.
 I find that Mr Harte was notified of the reason for the termination of employment.
 I consider Mr Harte was given adequate opportunity to respond to the considerations of his employer. This opportunity commenced in early April 2011. That Mr Harte did not respond in any form, except to reject the offer of an alternative position, until 3 June 2011 19 is strange to say the least. This is more than one month after he was provided with notice of termination and one week prior to the notice period expiring. Mr Harte’s suggestion that Mr Truscott had agreed to take no action until he received medical evidence from Dr Bedi may be true but that Mr Harte did not put this back in writing to Mr Truscott nor advise when he had an appointment with Mr Bedi is equally as confusing.
 There is no indication that Mr Harte was refused the opportunity to have a support person with him at any meeting with Forbes.
 In all of the circumstances I find that the termination Mr Harte’s employment was not harsh, unjust or unreasonable.
 The application is dismissed.
P McCrudden for the Applicant.
N Ritchie for the Respondent.
September 7, 8 and 29.
1 195 IR 292.
2 195 IR 292, 296.
3 (1998) 193 CLR 280.
4 (1998) 193 CLR 280, 304.
5 195 IR 292, 288-9.
6 Exhibit A1, attachment H.
7 Exhibit A1, attachment L.
8 Exhibit A1, attachment L.
9 Exhibit A1, attachment (unmarked).
10 Exhibit R1, attachment JKT6.
11 Exhibit A1, attachment R.
12 Exhibit A1, attachment R.
13 Exhibit A1, attachment L.
14 Exhibit R2, attachments DPD1 - DPD 6.
15 Exhibit A1, attachment R.
16 Exhibit A1, attachment O.
17 Exhibit R1, JKT7.
18 Exhibit R1, attachment JKT7.
19 Exhibit A1, attachment T.
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