[2012] FWA 10454

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Rodney Symonds
v
GM Holden Ltd
(U2012/4640)

COMMISSIONER STEEL

ADELAIDE, 18 DECEMBER 2012

Application under s. 394 for unfair dismissal remedy

Introduction

[1] This is an application by Mr Rodney Symonds (the applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is GM Holden Ltd (the respondent).

[2] The applicant is a person protected from unfair dismissal as defined in s.382 of the act. GM Holden Ltd is not a small employer and the consideration of the Small Business Unfair Dismissal Code is therefore irrelevant to this matter and the dismissal was not a redundancy.

[3] The applicant commenced employment with the respondent on 28 January 2003 as an assembly worker. He was dismissed and the document of dismissal states, “I confirm that your employment with G M Holden is terminated effective 25 January 2012 on the grounds of misconduct relating to an unsafe driving act”.

[4] The applicant at the time of dismissal had various current Workers Compensation claims and was involved in a rehabilitation program of his injuries with the respondent. Since he was dismissed for misconduct the applicant asserts that the respondent is denying any liability for financial payments under the Workers Rehabilitation and Compensation Act 1986 on the grounds of a breach of mutuality pursuant to s.36(1)(e) of that Act on the grounds the applicant was dismissed for serious and wilful misconduct. Since the applicant apparently has residual injuries and may require further rehabilitation treatment, such an approach by the respondent is significant to the applicant’s circumstances.

[5] The applicant asserts his dismissal was unfair and seeks reinstatement, or in the alternative a determination as to whether his actions and behaviour on the 20 January 2012 were wilful and deliberate behaviour pursuant to Regulation 1.07 of the Fair Work Regulations, in that they caused serious and eminent risk to the health and safety of a person. Such a finding will have a subsequent impact on prospective entitlements to workers compensation.

Summary of Submissions of the parties

[6] The applicants’ submissions and evidence in total do not deny his involvement in three forklift incidents, two of which are relevant to his dismissal, where his forklift driving resulted in investigations that concluded his driving was negligent and resulted in safety breach incidents.

He asserts that the respondent is collectively and contributory negligent in its systemic failure to appropriately manage his employment and injury management and by his dismissal have sought to put all blame on him and further deprive him of workers compensation benefits.

[8] The respondent asserts that there was a valid reason for the applicant’s dismissal and that his actions were found to be serious and wilful misconduct. They assert that the applicant was appropriately trained, aware of his duties and fit to complete such duties. They assert that the applicant was involved in two serious workplace accidents both of which could have resulted in serious injury to the applicant or other persons and that the applicant failed to report the second incident. That the applicant’s assertions he was affected by Sleep Apnoea, pain incidence and bullying by management are not sustained by the evidence.

Evidence in this matter

[9] The Tribunal heard evidence from the applicant and Ms Orbanic. The Tribunal found the applicant generally reliable but obviously defensive as to his application. Ms Orbanic had some difficulty providing objectivity in her evidence, given that she has an obvious vocation in representing her fellow employees. However I found she endeavoured to assist the tribunal overall.

[10] The respondent provided evidence from witnesses Schutt, Byers, Hicks, Murali, Kinnear, Vanpojen and Vos. The Tribunal found the witness evidence generally reliable.

The Events Leading to the Applicant’s Dismissal.

[11] The applicant had no history of disciplinary warnings or conduct between his commencement of employment in 2003 until 4 July 2011. Since 2011 the applicant was a recognised health and safety representative in the workplace. The applicant has a significant training history with the respondent 1. There is no evidence of training apparent after 22 September 2011. It is not contentious the applicant was on forklift driving duties for extensive periods since late 2008 until the date of dismissal. He completed an Authorised Driver Program on 1.5.09. There are no further driving notations on his record2.

The Forklift Safety incidents

The First Incident

[12] On 1 July 2011 the applicant loaded 4 racks, a total of 980 kilograms in weight, to drive and load into a machine some 93 metres away. This load did not conform with nominated safe loading requirements. It is not contentious the applicant should have only loaded 2 racks onto the forklift. Similarly it is not contentious that the base of the top two racks was above the height of the forklift mast, which was a breach of safety guidelines. The load hit an overhead beam and 2 racks crashed to the floor, hitting the top of the forklift cabin.

[13] The matter was investigated by the respondent and in that process the applicant had representation by his Union steward.

[14] The applicant asserts the accident was a mistake on his part and he had not intended to load 4 racks, but 2. He stated at the time his mind was not on the job as he was preoccupied with personal and family matters, trying to work with restrictions due to his previous injuries and working overtime for financial reasons. These issues all contributed to problems with his Sleep Apnoea, tiredness and concentration problems.

[15] The applicant in evidence asserted his Sleep Apnoea was ongoing and required him to use a machine every night, that the condition was under control and he was not receiving ongoing medical care for that condition. However he asserts he was sleep deprived because of the combination of other issues with the Sleep Apnoea, which resulted in lack of sleep.

[16] He further asserts he told the respondent about the Sleep Apnoea at the time of this accident 3 and that he also told P Kinnear, his supervisor. He asserts that he told Kinnear he did not want to drive the forklift. This conversation is denied by Kinnear. He also mentions he advised the GMH nurse of his Sleep Apnoea when she provided his clearance to drive a forklift in July 20084.

[17] The applicant attended the medical centre at the time of the incident and was then sent home on suspension. The applicant ultimately was given a written warning in regard to his performance in this matter 5. The warning includes the threat of termination of employment for further instances. The respondent had concluded it was not a deliberate act on his behalf but a serious safety incident. The applicant acknowledged the seriousness of this incident, that he could have been seriously injured and he was, in retrospect, fortunate to keep his job6.

The Second Incident

[18] There was a further incident between July and December 2011 in regard to a Plant 5 handrail, where the applicant was questioned if he had knocked it down. The applicant denied any involvement and asserts this incident added to his stress. The respondent denies this scenario occurred.

The Third Incident

[19] On 28 November 2011 the applicant, driving a forklift, reversed into a hand rail and was suspended pending an investigation. He asserts he was escorted off the premises that shift and this caused him humiliation and some stress. He asserts he was accused of hitting this handrail for the second time and that in those discussions was denied union representation.

[20] The respondent’s evidence is that they considered it appropriate to suspend and investigate and hold appropriate meetings the next day. Ultimately the respondent’s investigation found no fault could be ascribed to the applicant for the collision. The applicant asserts the comments by the respondents manager left the applicant feeling poorly treated and humiliated and that he felt that the management wanted him to fail.

The Fourth Incident

[21] On Friday 20 January 2012 whilst driving a forklift in the yard, the applicant loaded two (J300) wardrobes on the forklift and reversed up a ramp into the manufacturing area. The top unit hit the top of the doorway and fell forward to the ground. Despite his experience as a driver and an OHS representative the applicant did not report this incident. He explains his lack of reporting was out of fear, trepidation of being sacked and the process of investigation. He asserts he was in a state of panic and under severe mental pressure at this time.

[22] The applicant moved the damaged wardrobes to a different area and continued his duties. The incident had been witnessed and reported to the respondent. The respondent commenced an investigation and the applicant admitted his involvement and actions. He was involved in a meeting with his representation and was suspended pending the completion of the investigation. His representative at that time, told him to expect the worst. It is not contentious that this accident was a second serious incident.

[23] At a meeting on 23 January 2012 the applicant was advised that as a result of the investigation he was to be dismissed. This was stayed for 48 hours for discussions to occur with the Union. It was ultimately confirmed that he be dismissed effective 25 January 2012.

[24] The respondent considered the applicant had engaged in a deliberately dangerous manoeuvre, had neglected his training, had neglected OHS requirements and responsibilities, had exercised limited judgement, all in face of his status of having received a previous serious warning. His actions were considered gross misconduct.

[25] The applicant in his defence asserts that his mental state affected his judgement and made it questionable 7.

[26] He asserts he advised his employer of this through Mr Kinnear. He also indicated: that he was intimidated to the extent of bullying by his management that he continually asserted his state of mind was affected and that he could not handle pressure; that he was working with injuries and symptoms 8 and that he was ready to have a breakdown9. Further, that his judgement was affected because of his mental state and that he was not in position to improve this at the time and it is only later he has identified the nature of his behaviour and his mind not being on the job caused by interrupted sleep10.

[27] At the times of the above incidents the applicant was working on restricted duties (light duties) in driving a forklift truck. He had an applicable rehabilitation plan in terms of returning him to his pre injury duties. However he asserts that training could not be provided due to a lack of staff and forklift driving was what he was assigned by the respondent to do.

The applicant’s medical history

[28] The applicant incurred injuries at work to his wrist, elbow and hand in 2007 and to his neck in 2008, all accepted claims by the respondent self insurer and he has been involved in various work rehabilitation programs since 2008. The applicant also had a motor vehicle accident unrelated to his work in which he sustained various injuries. Being a “self insurer in South Australia”, the respondent provides medical services, rehabilitation programs and management via its contracted, in house “Job Fit Medical Centre”.

[29] The medical records of the applicant within the medical centre of the respondent were required to be produced by the respondent in respect to the evidence of Dr Vos. They were attributed to be the complete records.

[30] Those records indicate that since 2008 the applicant has been generally engaged in “light duties” driving a forklift because these were the only such duties available to him as a result of his injuries. At various times he was also not able to complete such forklift duties.

[31] The applicant asserts he suffers from Sleep Apnoea and that he provided a letter from his Royal Adelaide Hospital specialist confirming that diagnosis sometime in July 2008. There is no evidence of such a letter being provided by the applicant however there is an entry in the applicant’s medical records, at 4 July 2008, by a nurse as follows.

“Drivers medical-Fit to drive 1/12 , Pt to get report from specialist re fit re Sleep Apnoea letter for GP sent with pt .pt states nil headache or dizziness, A/l (line management)contacted re 1/12 provisional driving okay ,until get specialist letter Seen by Dr Ng ”

The following note from the doctor within the records does not mention any letter or Sleep Apnoea.

[32] The medical records also indicate between 4 July 2008 and his dismissal date the following selected entries (some paraphrased by the tribunal) 11.

[33] On the 1.June 2011 is a note from a Nurse as follows,

“Drivers medical- provided clearance for 1/12. Pt had drivers medical 2008 and as CPAP machine , needed letter from specialist not received although pt states dropped it off but no Dr/nurse clearance. Explained to pt that need this documentation to be fully cleared to drive. A/l ( line management)notified and explained re promised for 1/12 “1.6.11

This note is stamped Holden supervision contacted.

[34] It is clear from the applicant’s evidence that he considers that when he told the respondent he suffered from Sleep Apnoea, that was evidence of his Sleep Apnoea. He asserts that he, “told the doctor” at a medical appointment at the medical centre but there is no notes on record of a letter from a specialist ever being produced. The records indicate a nurse cleared him to drive for a month pending receipt of this doctor’s letter. That note records management being advised. There is no record of follow up by the respondent 12.

[35] Three years later the applicant has another medical clearance for driving by a nurse again for one month, issued in nearly identical circumstances and requiring follow up by the applicant and the respondent. No further entries are relevant on this matter and no evidence of a letter being provided. Interestingly no party or witness provided submissions on this second record of note which is contemporaneous in relation to sleep apnoea yet apparently all parties had available the complete medical records.

[36] The applicant also asserts he told Mr Kinnear, his “supervisor”, who denies such conversations took place with the applicant.

[37] It is therefore clear that the applicant had, on two occasions since July 2008, conversations with the medical staff within the respondent’s premises about his Sleep Apnoea. It is also safe to assume the medical centre was providing a medical clearance for the applicant on the instruction of the respondent. Such clearances to drive were for one month only and were advised to the respondent’s management. There is no evidence of follow up or resolution of the clearance to drive in excess of these periods.

[38] The records also indicate the applicant was no stranger to various pain symptoms from his shoulder injury. This culminated in a second cortisone injection in late November 2011. It is further clear from the records that Dr Vos was of the view the applicant’s status was improving and that he was to enter into a gradual return to pre injury duties in January. The records indicate that two appointments for a follow up consultation were made for the applicant, but he did not attend. The applicant’s evidence is that he was not aware of these appointments and he went back to work and was assigned drivers duties as normal with the fourth safety forklift incident occurring shortly thereafter.

Dr Vos evidence, the applicant’s primary treating provider

[39] Dr Vos provided evidence of his involvement with the applicant and also provided his view on the other case notes for the tribunal. His view was that the applicant presented in the period 1 July 2011 to his dismissal date to be recovering from his injuries and in fact had volunteered he was at time 97% recovered. He had at that time also been cleared by his specialist surgeon from possible surgery. He aggravated his shoulder in November 2011 and further treatment of a second cortisone injection was applied with some initial beneficial results.

[40] Dr Vos expected him to make a full recovery and be ready for normal duties after the holidays.

[41] The Doctor provided a view on the relevant Prescribed Medical Certificates (PMCs) of the applicant and referred to the 3 June 2011 work site visit report by S Cariagianis in his PMC of 10/6/2011 to 19/7/2011.

[42] This report indicates, the applicant “describes a significant improvement in symptoms over the past six weeks. He no longer feels constant left shoulder pain and has experienced an increase in left shoulder active range of motion which now almost matches the right shoulder (injury management file).

[43] On the PMC’s of the 8 July 2011 and 8 July and 8 August, Dr Vos consistently recommended a return to modified duties as per the above report, which provided for a gradual reintroduction of work duties.

[44] Dr Heitzel provided PMCs for October and November 2011 that referred to “trial graduated Return to Work (RTW) plan”. Then Dr Vos provided a PMC for 12 December which indicated the applicant was fit to return to modified duties from 12 December 1011 and then fit to return to pre injury duties on the 17 December 2011.

[45] The plant closure commenced on 16 December 2011. The applicant was to be reassessed on the 13 January 2012 but did not attend. He was thereafter dismissed for misconduct at work. Subsequently the applicant has continued to provide PMCs from Dr G. Murphy to the effect that he is fit to resume his modified duties.

[46] Dr Vos cannot recall the existence of and did not record at the time the review of a further worksite report by S Holloman which was less positive of the applicant’s status and advocated modified duties. This report was then read by the doctor and he commented that her assessment of the applicant done on 6 December 2011, two weeks after his last cortisone injection, was less positive at that time. However Dr Vos’s assessment was later and hence was more inclined to view an improvement, suggesting a clinical improvement in the applicant’s condition.

[47] Dr Vos does not recall the applicant mentioning this report to him within their consultation on the 12 December. The doctor was in fact advocating to trial normal duties for the applicant on returning after the holidays (9 January 2012). Since the report was in fact written on the 12 December by its author it would have been impossible for the applicant to have read it or referred it to Dr Vos or its contents at that time therefore Dr Vos cannot be culpable or be negligent as asserted by the applicant in not taking account of this report.

[48] Dr Vos stated that the applicant had been on modified duties for a minimum of 6 months without any issues being addressed by him or incidents arising and he made a clinical improvement following a cortisone injection in November 2011. He was assessed that he had minimal symptoms and there is no documentation in regard to any difficulties he was having with those duties.

[49] The report from Holloman was written on 12 December 2011 and received by the respondent on 15 December 2011, but not provided to Dr Vos until after this matter had commenced. No explanation of this delay was provided.

[50] Dr Vos in his evidence indicates he was not aware that the applicant suffered from Sleep Apnoea despite raising the applicants medical history with him. He says the applicant did not raise it with him and he had no knowledge of the Nurses note in the records as per July 2008 13.

[51] Dr Vos was not taken in evidence to the second note by a nurse as to Sleep Apnoea on 1 June 2011 which interestingly was cited in between his clinical notes of 10 May 2011 and 10 June 2011.

[52] When asked his opinion of the views expressed in the Holloman report done on 12 December 2011 as to the pain suffered by the applicant, which is in contrast to his opinion. Dr Vos indicated the nature of the report would not have changed his mind and diagnosis as her assessment (Holloman) was done earlier and was only 2 weeks post cortisone injection by the applicant. 14

[53] Dr Vos confirms he reviewed all consultations with the applicant 15.

[54] It therefore seems evident that Dr Vos was not aware of the nurse notes of July 2008 and June 2011. He must have missed or not taken account of such note of June 2011 as it is cited in between his clinical notes. The clinical notes also do not refer to the usage of pain killers or prescribed medications for pain except “Nurofen”.

The respondent’s Forklift driving policies.

[55] The applicant completed a Safe driving course on 1 May 2009 and a safety awareness course on 22 September 2011. Forklift drivers require a three yearly medical clearance and a Trainer refresher and competency assessment 16.

[56] The GM Traffic Management/Drivers code 17 is required compliance by drivers in that only authorised, certified and licensed drivers are permitted to operate company vehicles.

[57] There are specific and mandatory requirements on drivers such as notification of any pain relief being taken etc. and a fit to drive component where drivers must ensure they are fit to drive and not be under the influence of drugs etc. and mandatory notifications to supervisors of such matters are required.

[58] These are comprehensive policies applying to such designated authorised, certified and licensed drivers.

Mr Kinnear’s Evidence

[59] Mr Kinnear was the person the applicant immediately reported to in respect to his work. The applicant regarded him as his supervisor but he was more akin to leading hand than a supervisor and had limited responsibilities.

[60] Mr Kinnear was aware the applicant was on light duties and had a rehabilitation program but new nothing about his injuries. He could not rotate the applicant off forklift driving onto such other work generally because of a shortage of labour available to him. He denies the applicant was shaky or shocked at the occasion of the first accident where racks bounced off the top of the applicant’s forklift. He denies the applicant ever said he did not want to drive a forklift or “his mind was not on the job”.

[61] He asserts he had no knowledge of the applicant’s Sleep Apnoea but was aware generally of the condition.

[62] Mr Kinnear also indicated he did not converse on private matters within GMH.

Legislation

[63] The criteria that must be taken into account by this tribunal in considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable are set out in s. 387 of The Act in the following terms;

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:

Consideration

[64] The tribunal is engaged in determining whether there was there a valid reason for dismissal relating to the applicant’s capacity or conduct (including its effect on the safety and welfare of the other employees).

[65] At first instance it is not contentious that the applicant has had a series of injuries and has ongoing and residual symptoms of restriction, discomfort and pain in shoulder, back and wrist sites. These differ in incidence and extent.

[66] It is also not contentious that the applicant has been involved in two serious accidents where his driving and judgement were significantly at fault. It is also not contentious that both accidents could have resulted in a personal injury to the applicant or to other personnel. Both accidents resulted in damage to the respondent’s plant and equipment.

[67] However in totality of the evidence available the tribunal is unable to accept that there is a valid reason for the applicant’s dismissal based on a total consideration of the requirement criteria within s. 387.

[68] The respondent submits that they have duty of care under s. 19 of the Occupational Health, Safety and Welfare Act 1986 to provide safety for employees at work, including a safe working environment, safe systems of work and plant and substances in a safe condition. They must provide adequate facilities and must provide such information, instruction, training and supervision necessary to ensure that each employee is safe from injury and risks to health.

[69] They also submitted that the employee must take reasonable care to protect their own health and safety and must take reasonable care to avoid adversely affecting the health and safety of any other person through an act or omission. They say the applicant in these respects is at fault.

[70] From the evidence the applicant has been driving a forklift for in excess of three years. However he has had medical clearances within the respondent’s administration of OHSW matters for only apparently two months of that time. The medical records indicate that such limited clearances were provided by a nurse on both occasions for a designated period ( One month(1/12). It also indicates no systematic follow up by the medical centre or management. There is no record of any relevant doctor’s letter or full medical clearance on the files provided.

[71] Hence there has been no evidence that the applicant was at anytime authorised and certified except for the completion of the driving course in May 2009. For the above to apply in a significant workplace indicates a severe disconnect between the management and the medical service area. If a medical clearance was not significant and required for the issue of usage of a Sleep Apnoea machine. Why did the medical nurse on two occasions require it to be provided?

[72] That disconnect is further reinforced in regard to the history of rehabilitation of the applicant. Where generally modified duties are prescribed within the applicant’s rehabilitation plan but not available in the plant hence the applicant does not have the variety or relief. The evidence is also that the leading hand Mr Kinnear is responsible for providing such allocations. He does not have any knowledge of the applicant’s injuries and nor does his role require him to have that knowledge or involvement.

[73] Further the respondent’s evidence from Mr Byers is that Sleep Apnoea is recognised as a sleep disorder, is required to be investigated, medical evidence provided and a clearance by the medical centre, “we would have been bound by what came out of the medical centre as far as the recommendation.” 18 The applicant had limited clearances for specific times and the management were advised.

[74] The evidence of Mr Schuitt reinforces the reliance on the medical centre advice to management. He indicated that it was a confidential process where the medical centre shares information on a driver with supervisors when they have made a diagnosis. However this is limited to generally a yes or no to driving. “They will not say if he had Sleep Apnoea or he was on medication, it’s not for the supervisor to know” 19. Mr Schuitt’s evidence is that the medical centre passed the applicant as fit to drive20. The medical evidence is that it was for a limited duration.

[75] Mr Shuitt also indicated that if he had been aware of the range of medical ailments experienced by the applicant including Sleep Apnoea, he would not have had the applicant driving a forklift 21. It is not contested the applicant has a Sleep Apnoea condition for a considerable period.

[76] In this case two clearances for the applicant were issued and limited to drive for a month and were subject to provision of further medical information. Both such clearances were advised to management. In absence of any follow up and further information apparently there was no obstruction to the applicant continuing to drive. Whereas the Sleep Apnoea issue continued to not be medically determined or resolved by the medical centre. Both forklift limited medical clearances were advised to management but no follow up is evident. This falls short of a safe system of work for the applicant and the workforce.

[77] The applicant after the accident on the 1 July 2011 was put back on fork lift duties, after his disciplinary warning without medical examination or further diagnosis, despite his discussion of this situation. On the night of the accident he was under observation by a paramedic for about 30 minutes and then was sent back to the work location. After some discussion about his lack of concentration he was sent home. When he went back to work some days later he was returned to forklift duties again without further medical review.

[78] It is therefore concluded that the respondent has failed to technically provide a safe system of work while allowing the applicant to drive where his sleep disorder remained operationally not defined and medically referenced.

[79] The applicants’ evidence that he sustained issues with pain management as a result of his injuries is illustrated by the records. It is also apparent he did not resort to prescribed drugs in that process.

[80] The applicant’s submissions on the effects of personal matters on this performance are unchallenged. The applicant’s evidence of bullying by management are unconvincing and the Tribunal does not recognise the various suspensions and the manner in which they were applied as to amount to evidence of bullying by management. The applicant’s fear of repercussions as to his involvement in the fourth forklift accident are understandable as he was again involved in an incident involving a serious lack of judgement, breach of policy and had received a serious warning previously. The tribunal accepts in this situation and in his circumstances his judgement was lacking and he compounded his situation by trying to recover a situation which was already notorious as it had been reported. It is extreme behaviour, not mischievous behaviour and hence illustrates the complexity of his emotional situation at that time.

[81] In regard to the applicant’s reliance on the evidence of Mr Kinnear and the obvious contrasting evidence provided by Mr Kinnear. Having observed the various parties the tribunal concludes that the applicant must have failed to adequately communicate to Mr Kinnear his information and that party was not variously receptive to such information. The Tribunal cannot conclude that one of these parties is lying or confused as to the evidence they have provided. The Tribunal prefers the evidence of the applicant in this regard as to his endeavours to discuss the events with Mr Kinnear.

[82] For these reasons the tribunal finds the actions of the respondent in subsequently dismissing the applicant for Safety reasons on the basis that he has conspicuously displayed a lack of judgement is unsustainable and not valid given the significant internal administrative issues illustrated within their management of his employment and injury management. The applicant was affected by various personal matters and the effects of his residual injuries and the ongoing condition of Sleep Apnoea. His actions in the first accident were found by his employer not to be wilful and the Tribunal considers that in the Fourth accident the actions of the applicant were also not wilful and deliberate in intent to have an accident, damage plant and threaten the welfare of employees.

[83] The Tribunal therefore finds that the dismissal of the applicant was unfair. The Tribunal considers the dismissal was harsh, unjust and unreasonable because of the economic consequences for the applicant, because the misconduct alleged has to be tempered with the fact he was never a medically authorised forklift driver at the time of the accidents and because their actions were decided on the basis of information that was conflicted by their own records.

Remedy

[84] The applicant is seeking reinstatement which is the primary remedy in the Act. The relevant legislative reference is s. 390 of the Act. The respondent has made no submissions on remedy and chose to focus that the application be dismissed.

[85] The respondent did make submissions that the applicant was lacking in credibility leading to an inference that there may be a loss of trust and confidence between the parties relevant to a consideration of reinstatement. However the Tribunal considers that the nature of the relationship between the parties including long term injuries at work and the information provided within this decision does not sustain such a loss of such trust and confidence.

[86] On that basis I accept the submissions of the applicant as to reinstatement being the appropriate remedy as there no submissions and material as to reasons not to do so and the Tribunal has found the dismissal unfair.

[87] The Tribunal therefore has decided to order the reinstatement of the applicant to the position he was employed in immediately before his dismissal. Further it is appropriate to order that the continuity of the applicant’s employment is maintained and the period of his service be continuous with the respondent.

[88] In regard to remuneration lost to the applicant, the applicant submits that he has not earned any remuneration as he has been unemployed and not employable as a consequence of his injury to his shoulder. However in the circumstances it is appropriate to order that the respondent pay the amount of remuneration including wages and superannuation lost or likely to have been lost to the applicant because of the dismissal. Such amount should be decreased by the amount of remuneration, if any, that the applicant has earned from employment, any Workers Compensation payments received as a consequence of his injuries incurred with the respondent and any social security benefits received as a consequence of being unemployed between the date of his dismissal and the date of reinstatement. Further any notice the applicant received on termination should also be deducted from the above payment.

[89] An order shall be issued giving effect to this decision.

COMMISSIONER

Appearances:

Mr T Hardie for the applicant

Ms F Anderson for the respondent

Hearing details:

2012:

Adelaide

August 13, 14

September 3

Final written submissions:

September 21

 1   Exhibit R1, MS1

 2   Exhibit R1, MS1

 3   PN 787

 4   PN 794

 5   Annexure A1

 6   PN 248 and PN 536

 7   PN 758 and PN 760

 8   PN 561

 9   PN 621

 10   PN 521, PN 758, PN 759, PN 788 and PN 857

 11   Exhibit R9

 12   PN 787, PN 788 and Exhibit R9

 13   PN 3674

 14   PN 3687 and PN 3688

 15   PN3807

 16   ‘Safe Driving” at GMH MS2

 17   Exhibit R1, MS5

 18   PN 1788

 19   PN 1863-1869

 20   PN 2069

 21   PN 2056

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