Note: An appeal pursuant to s.604 (C2011/7953) was lodged against this decision and the order arising from this decision [PR516676]- refer to Full Bench decision dated 24 February 2012 [[2012] FWAFB 1404] for result of appeal.
[2011] FWA 7728 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Charanjit Singh Birdi
v
Rail Corporation New South Wales T/A RailCorp
(U2011/7953)
COMMISSIONER HARRISON |
SYDNEY, 10 NOVEMBER 2011 |
Termination of employment - unfair dismissal.
[1] This decision arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed by Mr Charanjit Singh Birdi (the Applicant) in respect of the termination of his employment by Rail Corporation New South Wales T/A RailCorp (the Respondent) on 16 May 2011.
[2] The Applicant was employed by the Respondent as a train guard from March 2004 until 3 May 2011 when his employment was terminated on medical grounds. The application was subject to unsuccessful conciliation on 16 June 2011 and was subsequently referred for hearing.
[3] At hearing the Applicant was self-represented. Mr D Lloyd, solicitor, instructed by Mr J Morton appeared for the Respondent.
[4] The Applicant’s employment is regulated by the RailCorp Enterprise Agreement 2010, the Rail Safety Act 2008 (NSW) and the National Standard for Health Assessment of Rail Safety Workers 2004.
[5] In his role as a train guard, the Applicant was classified as a Category 2 Rail Safety Worker and was required to undertake health assessments in accordance with the above industrial and regulatory instruments.
[6] It was not contested that the Applicant suffers from schizophrenia. According to the Respondent’s Chief Health Officer, Dr Armand Casolin, a Category 2 Rail Safety Worker, under the National Standard, requires an employee with a psychotic illness to be stable and compliant with treatment over a substantial period of time.
[7] The Applicant contends his termination was unfair and the Respondent should have retrained and redeployed him to other sections pending his recovery. Alternative positions within the Respondent’s business suggested were Human Resources, Recruitment, Technical Engineering, Administration and Training. He submitted these alternative positions were not explored or considered by the Respondent.
[8] The Applicant complained of a long history of “mistreatment” concerning payment of sick leave, the behaviour of managers towards him, harassment and of being required to work unreasonable rosters.
[9] In late 2010 the Respondent conducted an investigation into alleged serious misconduct by the Applicant relating to his failure to comply with lawful directions. On 15 December 2010 his treating doctor, Dr Sims, certified the Applicant suffers a psychotic illness and was unfit for work.
[10] It was not contested that the Applicant refused to give consent to the Respondent to contact Dr Sims or any other treating doctor to discuss his condition.
[11] On 21 December the Respondent suspended the disciplinary investigation whilst it considered the Applicant’s fitness to perform category 2 rail safety work.
[12] The Respondent arranged for the Applicant to be psychologically assessed by Professor Glozier on 14 and 22 February 2011. The Applicant was advised that pending the outcome of the assessment, if he was found fit for duty he would resume work and complete his return to work plan at Burwood.
[13] The Applicant failed to attend the above appointments because he was unwell. He was also opposed to returning to work at Burwood because he regarded it as a “sickening environment”.
[14] Following the Applicant’s failure to attend the appointments, Dr Casolin reviewed the matter and determined he was unfit to be employed as a train guard and recommended medical retirement.
[15] In recommending medical retirement, Dr Casolin noted the Applicant had suffered at least three acute and prolonged episodes over the past eleven years and when assessed in 2009 and 2010 he had residual symptoms and was unable to successfully return to work.
[16] The Applicant was advised that no decision had been made in relation to the recommendation and was directed to attend a meeting on 14 March 2011 to discuss the situation. On 8 March, the Applicant advised he would not be attending the meeting.
[17] The Applicant was then provided a period of 21 days in which to:
OR
[18] In response the Applicant replied as follows on 25 April:
“Subject: Re: RailCorp Correspondence as advised.
O hye Kimberley my health remaining intact and more importantly proper work environment provided to me (unlike insecure and improper Burwood) I would like to work any way through redeployment. As you have asked it could be any kind of knowledge based or office based such as H.R., recruitment, technical engineering labs, administration, training, etc. You have not mentioned what RailCorp could offer or what is available. Please provide the available opportunities. Also I believe there is an recurring organisational problem within my case. So environment and health remaining perfect I would like to work. Rest in future. Okaye. Thanks and regards.”
[19] The Respondent acknowledged the above and in the letter of termination, the General Manager Customer Service (Sector 2) in part stated:
“Alternative to medical termination - work within RailCorp
I have considered the positions you have identified as alternatives within RailCorp including HR, Recruitment, Technical Engineering labs, Administration, and training. In stating bands of employment avenues you have not nominated any particular job or what skills/qualifications you may have to carry out the duties of roles within the above disciplines.
I note that in previous fitness to continue assessments it is noted that you held Civil Engineering qualifications and employment prior to arriving in Australia, however, RailCorp does not have any evidence that your overseas qualifications have been recognised in Australia.
I am satisfied that on the advice of Dr Casolin and the (medical) reports above that it is not a viable alternative option for you to work within RailCorp regardless of the position. This is on the basis that you remain unfit for work as a guard or any other safety critical position for the foreseeable future, and given that you have failed to attend the two psychiatric appointments arranged for you in February 2011 which we anticipated would have updated medical opinions as to your capacity to perform your substantive duties (and other substantive roles) for RailCorp.
You have also not provided consent for RailCorp to discuss your medical condition with your treating psychologist; therefore we do not have any evidence that you are fit for a non safety critical role.
Decision
RailCorp is satisfied that on the basis of the available medical reports and the advice of Dr Casolin that there is no option for you to return to your substantive position in Service Delivery, for the position to be modified, or for you to redeployed in another part of the organisation for the reasons set out above.
For the reasons given above RailCorp has no option to proceed with the termination of your employment on medical grounds. Accordingly our exit date will be effective as of 3 May 2011. In accordance with the Policy four weeks payment will be made in lieu of notice....”
Consideration and conclusion
[20] The Respondent’s procedure in relation to medical retirement is contained in a comprehensive Policy document titled “Procedure: Termination of Employment on Medical Advice”. The purpose of the procedure is to provide guidance where: “medical advice is received that identifies that an employee is unable to perform the inherent requirements of their position...”
[21] When considering a termination on medical advice the policy provides:
“Step One - Discussing a medical termination
Step two - Making a decision
Following the interview, no action should be taken to terminate employment on medical advice until twenty-one (21) days have expired. During this time, the employee has an opportunity to provide any reasonable alternatives to termination of employment on medical advice.
If no response is received, a recommendation for termination of employment on medical advice may be submitted for approval.
Refer to the Termination of Employment on Medical Advice Instruction for requirements.
A recommendation for termination on medical advice is subject to the approval of the Director Human Resources.
The Director Human Resources may seek advice from RailCorp’s Chief Health Officer when considering a recommendation for medical termination.”
[22] Having regard to the above policy and procedures I am satisfied the Respondent properly applied the policy and took all reasonable steps required of it in considering the Applicant’s termination on medical advice.
[23] In refusing to participate in the process, other than forwarding an email proposing generic redeployment, the Applicant contributed to the outcome he now describes as unfair.
[24] It is well established that a long term medical condition that prevents an employee from performing the inherent requirements of the job constitutes a valid reason for termination. 1
[25] In this case the medical evidence of Dr Casolin in which he had regard to the psychiatric reports of Dr Lovric, Professor Glozier and the Applicant’s treating psychologist, Dr Sim, satisfies me that the Applicant is unable to perform the inherent requirements of the position of a train guard or alternatively in a non-safety critical role.
[26] Section 387 of the Act contains criteria that Fair Work Australia (FWA) must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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
(f) 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
(g) 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
(h) any other matters that FWA considers relevant.
Section 387(a)
[27] This matter concerns the capacity or otherwise of the Applicant. Given my conclusions in paragraph 25 I find there was a valid reason for the dismissal of the Applicant.
Section 387(b)
[28] The Applicant was notified of the reason.
Section 387(c)
[29] The Applicant was given every opportunity to respond.
Section 387(d)
[30] The Applicant was invited to have a support person involved.
Section 387(e), (f) and (g)
[31] In this matter the dismissal did not relate to unsatisfactory performance. Subsections (f) and (g) are not relevant.
Section 387(h) - other matters
[32] Under the provisions of the National Standard for Health Assessment of Rail Safety Workers 2004, the Respondent has onerous obligations to ensure a safe working environment for the travelling public and fellow employees. The unfortunate state of health of the Applicant in this matter was a fact which could not be ignored by the Respondent in making its decision to medically terminate his employment.
[33] I find the dismissal of the Applicant was not harsh, unjust or unreasonable. Accordingly, the application seeking a remedy for unfair dismissal is dismissed.
COMMISSIONER
Appearances:
C S Birdi, the Applicant
D Lloyd, Blake Dawson with J Morton, Rail Corporation New South Wales T/A RailCorp
Hearing details:
2011.
Sydney:
September 8
1 PR915674 at PN44, 48ff and PR903643.
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<Price code C, PR516557>