Note: An appeal pursuant to s.604 (C2012/2957) was lodged against this decision and the order arising from this decision [PR520125] - refer to Full Bench decision dated 26 April 2012 [ FWAFB 3292] for result of appeal.
 FWA 140
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
ACI Operations Pty Ltd
ADELAIDE, 22 FEBRUARY 2012
Termination of Employment - unfair dismissal found - further proceedings - remedy - whether reinstatement appropriate - whether medical condition and treatment means reinstatement not appropriate given other findings - whether reinstatement can or should comprehend the need to demonstrate fitness for work - medical evidence and other elements considered - reinstatement appropriate in all of the circumstances.
 This decision finalises an application by Mr Dale Cook (Mr Cook or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an unfair dismissal. The applicant was dismissed from his role within the glass container manufacturing business conducted by ACI Operations Pty Ltd (ACI or the respondent) on 19 January 2011. The basis for the dismissal included that he was allegedly unfit to perform his normal duties and had refused to undergo a functional capacity evaluation (FCE) that was said to be necessary for other potential duties.
 Having heard the substantial evidence and submissions of the parties, on 1 November 2011 I determined on balance that Mr Cook’s dismissal was harsh, unjust and unreasonable in all of the circumstances. 1 Without detracting from the balance of that decision, the following findings in relation to one aspect of that conclusion provide some important context for this present decision.
“ In general terms I accept that the employer had the right to direct Mr Cook to attend an FCE. The use of an FCE as part of the process to determine fitness for work is reasonable given the nature of the work, the practice within the organisation and its very important occupational, health and safety obligations. I also accept that ACI had some legitimate concerns about the applicant’s immediate fitness for duty for the Job Change role.
 However the reasonableness of that requirement and of the applicant’s refusal must be assessed in the specific circumstances evident at the time. The applicant did not accept that he was unfit for the Job Change role he had been performing, and was not provided with a copy of the FCE to enable him to make an informed decision or take medical, or more informed, legal advice in that context.
 The respondent may, as speculated by it after the event, have reconsidered its position on the Job Change role in light of any FCE, but this was not made known to the applicant and the proposed FCE was clearly sought only in relation to the alternative job. Indeed, based upon the approach to FCEs adopted by ACI and CHG as its provider, a different job dictionary and test would have been required (in addition to that applicable to the shift position) if it genuinely wanted to further assess the applicant’s fitness for Job Change role.
 It is also feasible that ACI could have considered the move to a shift role as being part of a graduated return to full fitness and the Job Change role, however the applicant would have reasonably understood that the proposed shift role was to become his substantive role.
 It was also evident to Mr Cook that by the time of the 14 January 2011 meeting, ACI had already determined that he was not going to be undertaking the Job Change role based upon the history of events and the December FCE. I accept that a Doctor’s assessment may not always be required to support an FCE for present purposes. However, in this case given that very history it was in my view unreasonable to conclude that Mr Cook could no longer undertake the Job Change role on the basis of the FCE without further medical advice. This is so, as the applicant had had heart surgery and the potential for deconditioning was clearly a potential factor given the long absence from work and most of his work after that time had been in the management role. I also note that the advice of Dr Jezukaitis at CHG on 18 November contemplated Mr Cook resuming full duties after a four week period. This latter aspect is not in my view conclusive in its own right, but is consistent with the need for the FCE to have been followed up with an assessment from a Doctor if it was to be used for the purpose relied upon by ACI in reaching its dismissal decision.
 In these circumstances, whilst it would have been prudent for Mr Cook to have further explored the concept of the shift position, it was understandable that he made his response to that proposition, and the concept of further FCEs, in the narrow context in which the options were presented to him by ACI.
 It is evident to me that ACI considered Mr Cook to have continued to consume cannabis after his initial recovery from heart surgery. Based upon the material before Fair Work Australia, this was not an appropriate inference and clouded the decision taken by the employer including in relation to Mr Cook’s possible motives for refusing the further FCE.
 In all of the circumstances, ACI had valid reasons to conclude that Mr Cook should be further assessed in terms of his capacity and fitness to undertake the Job Change role. However, it did not have a sound, defensible or well founded reason to dismiss the applicant at that point, either on the basis of those concerns or his unwillingness to undergo a further FCE in the particular circumstances then evident.”
 In the merit decision, I also found as follows in relation to the potential remedies available under the Act (endnotes omitted):
“ I have carefully weighed the various considerations relevant to this assessment. These include the applicant’s relatively short work history with ACI, including what had been considered to be good and loyal service, the conduct of both parties leading to the dismissal, the circumstances of the business including its need to conduct such in a safe and productive manner, the circumstances of the applicant including his recent medical history, the attitude of the parties to the employment relationship as revealed in these proceedings, and the evident remedial benefit of reinstatement given Mr Cook’s circumstances. These latter circumstances include the fact that there are apparently limited employment opportunities for work of the kind previously undertaken by Mr Cook at ACI.
 The concept of reinstatement brings with it the restoration of the terms and conditions of employment in the broadest sense of those terms. The applicant’s fitness for work and the circumstances and obligations of ACI in that context are therefore relevant considerations when assessing whether reinstatement is appropriate and must be seen in that broader context.
 There is evidence that the applicant is generally fit for work at ACI. As alluded to above, I do accept that any reinstatement would need to recognise that the employer has a right, and a duty, to ensure that Mr Cook is able to safely undertake the nature of the work involved. This is particularly so given the length of absence from work and the recent diagnosis and operation in relation to the inguinal hernia. This could be demonstrated by an appropriate assessment, which could include in this particular case, an FCE done in the context of a more thorough medical assessment undertaken by a medical practitioner(s), possibly including a cardiologist. All of this could be comprehended in a reinstatement regime, either expressly or impliedly, and at least in general terms there is no basis to find that reinstatement is not appropriate based simply upon the applicant’s potential current medical status. I do however need to hear further from the parties in relation to this aspect.
 In terms of the attitude of the parties, this is relevant but not conclusive as to whether the relationship can be satisfactorily re-established. The evidence bearing upon this consideration is limited in terms of the respondent’s case. Mr Pittiluga indicated in examination in chief that:
“MS ZEITZ - Mr Cook - you’ve said you thought you had a good working relationship with Mr Cook?
MR PITTILUGA - Yes.
MS ZEITZ - Is that still the case?
MR PITTILUGA - No.
MS ZEITZ - Why is that?
MR PITTILUGA - Well, obviously all the things that are happening at the moment, which are all unfortunate, but I feel the working relationship broken.”
 There is no evidence from the other respondent witnesses or from others in management bearing upon the capacity to re-establish the relationship. It is also evident that save for the events that transpired following the meeting on 14 January 2011, the relationship had been one of mutual trust and confidence.
 However, the applicant said some things in his evidence that touch upon this consideration. Mr Cook suggested that most of the respondent witnesses were lying where their evidence disagreed with his views; considered that the employer was misleading him about the import of the December FCE when it raised this in January 2011; accused ACI of covering up the circumstances surrounding the alleged “kneeing”; and was dismissive of the respondent’s management and OHS policies and those who administered them, mainly on the basis that they were not consistently applied.
 I am prepared to make some allowance for the fact that many of these positions were in reality simply the applicant’s way of dealing with the conflict in the facts during the heat of an arbitration hearing and consistent with Mr Cook’s tendency to overstate his case. However, those comments going to the integrity, competence and motives of those who gave evidence in this matter, and the management systems in place, were bold, largely but not completely unfounded, and could have had an impact on mutual trust and confidence.
 It is a reasonable inference having heard and observed the witnesses that the comments made by Mr Cook will be seen by ACI management in the particular context in which they were made, and other than the normal tensions that might flow from having unfair dismissal proceedings between parties, they do not as such present a barrier to resuming what had been a sound relationship. It is also evident to me that the value placed upon his job at ACI is such that the applicant should be capable of making any necessary attitudinal and lifestyle changes to best facilitate the resumption of constructive employment.
 I also note that during 2011, ACI has made some changes to the organisation of the Job Change role in an attempt to better manage the demands. This includes consideration of job rotation and a health and wellbeing program and an internal advertisement for positions. No suggestion has been made by ACI that this should prevent consideration of the reinstatement of Mr Cook.
 On balance, and subject to further consideration of any issues arising from Mr Cook’s present medical condition, I am currently disposed to the view that reinstatement of the applicant to his former position would be an appropriate remedy in this matter. I also consider that if this approach is followed, an order maintaining continuity of service pursuant to s.391(2) of the Act would be warranted.
 There is however very little evidence going to some of the considerations established by ss.391(3) and (4) of the Act in relation to the restoration of lost pay. This includes the fact that there is no detailed evidence of any payments or entitlements arising under the relevant workers compensation legislation, or other remuneration since the dismissal. I would also need to hear from the parties as to whether this discretion should be fully exercised in the circumstances of this case.
 As outlined above, I also need to hear further from the parties regarding the implications, if any, of Mr Cook’s current medical condition in the context of a potential reinstatement order.
 In the circumstances, and despite my reluctance to require further proceedings, I consider that in this particular case it is appropriate to provide an opportunity for the parties to provide further submissions, and probably evidence, going to the issues of remedy outlined immediately above.
 As a result, I will convene a telephone directions conference in this matter at the earliest opportunity to facilitate the expeditious determination of the remaining issues.”
 At the subsequent directions conference, Mr Rossi, who continued to appear for the applicant, confirmed that Mr Cook was still seeking reinstatement but would not be pursuing any order in relation to lost remuneration given his workers compensation entitlements. Mr Rossi also advised that Mr Cook was at that time about to undergo surgery in relation to the recently diagnosed inguinal hernia and that this would be managed under a rehabilitation and return to work plan approved by the relevant workers compensation provider, Employers Mutual Limited (EML).
 Ms Zeitz, who continued to appear for ACI, confirmed that the employer maintained its opposition to reinstatement of the applicant and contended that no such order should be made given the applicant’s apparent medical condition. Ms Zeitz also sought that the consideration of remedy in this matter be delayed until such time as the applicant’s workers compensation claim, which was being disputed, had been fully resolved.
 In the circumstances, I issued directions for the filing of evidence and submissions concerning the remedy in this matter and have now heard further from the parties during the course of a hearing conducted on 31 January 2012. 2
THE APPLICANT’S CONTENTIONS ON REMEDY
 Mr Cook sought to be reinstated to the position he was employed in immediately prior to his dismissal; being as a member of the job change gang/trainee feeder man.
 He contended that there is no incapacity for work as a result of the earlier testicular injury or the cardiac attack and subsequent operation. Rather, Mr Cook had an accepted claim for compensation in relation to a testicular torsion, haematoma and the left inguinal hernia. This involved a partial incapacity for work, and having undergone surgery in relation to the hernia, was now in a position to return to the workplace. This was said to be the primary remedy under the Act and should be granted in this case particularly given that compensation would be of little benefit to the applicant in light of workers compensation payments and entitlements.
 The applicant referred, amongst other matters, to a medical report and return to work clearance from Dr Cook, who gave evidence in the earlier hearings, and advice from his treating Doctor to demonstrate that he was fit to resume his pre-dismissal duties.
 Mr Cook relied upon the approach adopted by Fair Work Australia in Bormann v Visy Board Pty Ltd 3 to support the notion that even where a worker was unable to undertake their previous position due to a work related injury, this was not an impediment to reinstatement.
 The applicant also contended that it was not appropriate or necessary for an FCE to be contemplated as part of any consideration of this matter or any reinstatement regime.
 Mr Rossi for the applicant also relied upon the earlier submissions advanced in this matter as they touch upon the question of remedy.
THE RESPONDENT’S CONTENTIONS ON REMEDY
 ACI opposed the making of any reinstatement order and contended that if any remedy was to be considered, it should be in the form of compensation. This was based upon what it described as continuing uncertainty and concerns with Mr Cook’s medical condition and fitness for work. The respondent referred to a number of alleged medical concerns and unanswered issues that were said to arise from the medical reports of the various Doctors and the applicant’s own evidence in the previous proceedings regarding on-going pain concerns. It was submitted that Fair Work Australia could not be satisfied, based upon the present medical advice or otherwise, that it was appropriate for the applicant to be reinstated.
 Alternatively, the respondent contended that Fair Work Australia should direct that Mr Cook attend a further FCE and have those results considered by his Cardiologist and other medical practitioners before the Tribunal considered reinstatement.
 Ms Zeitz for the respondent also speculated that it may be appropriate for Fair Work Australia to make a reinstatement order subject to the results of an FCE but conceded that there was no apparent power under the Act for the Tribunal to make a conditional order. 4
 ACI contended that the assessment of appropriateness would need to be approached in a practical and realistic way (Meyer v Qantas Airways Limited) 5 and involve consideration as to whether reinstatement would place unreasonable burdens upon the employer or other employees (Smith v Moore Paragon6).
 ACI also contended that the applicant did not have a long career with the respondent or in the glass industry and in the circumstances these factors should militate against an order for reinstatement. Further, compensation could and should be considered as being appropriate if a remedy was to be granted in this matter. The respondent also referred in its written outline to the suggestion that there was no vacancy within the roles previously undertaken by the applicant. 7
 I have set out the statutory considerations, the general approach taken by the Tribunal to those considerations and the major findings impacting upon this matter in the earlier merit decision. The following consideration is to be read in conjunction with that decision.
 Some of the particular considerations arising in circumstances where an applicant employee may have medical or capacity concerns bearing upon potential reinstatement have been canvassed in the Full Bench authorities referred to by ACI. In Meyer v Qantas Airways Limited, the Full Bench indicated as follows:
“ In this matter it was necessary for the Commissioner to have formed a positive view or conclusion that an order under s.170CH(3)(a) was appropriate. To do so, the evidence needed to establish that Mr Meyer, in a practical and realistic way, was able to return to the position of a Ramp Services Officer. In this case the evidence was that he lacked the capacity and ability to do that job. In those circumstances we are unable to see how it could be said to be appropriate to reinstate him in that former position. In doing so the Commissioner was in error.
 The Commissioner’s decision also reflects error in that, on the one hand he was not inclined to reinstate to an alternative position as that would require him to reach conclusions about Mr Meyer’s physical capacities and, on the other, he ordered Mr Meyer’s reinstatement in his former position. This was contrary to the clear evidence that he was not capable of performing the duties associated with that position. This approach, in our opinion, does not reflect a proper exercise of the power in s.170CH(3)(a). We think the reasons for decision disclose that the Commissioner exercised that power not to achieve the purpose the subsection is directed to but another purpose. We are persuaded the Commissioner failed to appreciate the nature of the power in s.170CH(3)(a) and erred in his exercise of it.”
 In Smith v Moore Paragon, that Full Bench said (footnotes omitted):
“ The approach of Wootten J in Finch v Sayers has been approved and applied by the New South Wales Industrial Relations Commission in Court Session in Cachia v State Authorities Superannuation Board and in Hilton Hotels of Australia Limited v Pasovska. It has also been applied in this Commission by Simmonds C in his careful decision in Foster v Copper Mines of Tasmania Pty Ltd. We endorse that approach.
 The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.
 Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee’s substantive position.
 Whether reinstatement would involve an undue burden on other employees will depend on the particular circumstances of the case. The facts of Qantas Airways Limited v Christie provide an example. Qantas terminated the employment of Mr Christie who was a 747 pilot who had turned 60 years of age. Mr Christie commenced proceedings alleging that the termination of his employment was for a prohibited reason under s.170DF of the Industrial Relations Act 1988, namely discrimination on the basis of age. Qantas, inter alia, relied upon s.170DF(2) and contended that Mr Christie could not perform the inherent requirements of his position. Mr Christie’s age meant that the only destinations in the Qantas network to which he could fly were New Zealand, Fiji and Bali which were all short haul flights. Local laws in all other destinations to which Qantas flew prohibited flights flown by a pilot over 60 years of age. Because Mr Christie could not fly to most of Qantas’ destinations a majority of the High Court held that he “could not perform the inherent requirements of the particular position” and therefore by operation of s.170DF(2), his dismissal was not prohibited by s.170DF. More importantly for present purposes, the reinstatement of Mr Christie would have imposed an undue burden on other pilots because a materially disproportionate share of flights to New Zealand, Fiji and Bali would have had to be allocated to Mr Christie for him to fly the number of hours required of a full time pilot as part of his or her contract of employment. That, in turn, would have meant that other pilots would have been deprived of a fair share of the more desirable short haul flights and would have been subjected to difficulties in meeting minimum hours requirements in their rosters.
 In summary, subject to the guiding principle referred to in paragraph  above, the following matters are relevant to the weight to be accorded to an employee’s ongoing incapacity arising from injury or illness when considering whether reinstatement pursuant to s.170CH(3) is appropriate:
 These factors are interrelated and cumulative. This list is not exhaustive.”
 Earlier in the same case, the Full Bench also indicated:
“ It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not “appropriate”. To adopt such an approach would tend to defeat the remedial purpose of the legislation. The unavailability of a job vacancy is simply one factor to be taken into account in deciding whether or not an order for reinstatement is appropriate.”
 Notwithstanding the marginally different statutory context 8, in my view the above approach remains generally apposite.
 I accept therefore that this present assessment must be undertaken on a practical and realistic basis and that the consideration of any unreasonable burdens upon ACI as the employer, or other employees, are important factors. I also accept that an order for reinstatement should not be made where there would be little utility in doing so. In this case, I also need to consider the present status of the applicant’s health given more recent developments and the apparent medical clearance to return to work.
 I have already found that there was evidence that the applicant was generally fit for work at ACI but noting the length of absence from work and the recent diagnosis and operation in relation to the inguinal hernia, more contemporary medical assessment might well be appropriate. I also accepted that any consideration of reinstatement would need to recognise that the employer has a right, and a duty, to ensure that Mr Cook is able to safely undertake the nature of the work involved. 9
 I have carefully considered all of the medical and related evidence now before Fair Work Australia. The applicant now has a full medical clearance to return to work from 25 January 2012 10 and although this refers to the groin “kneeing” injury, there are no conditions on that clearance. I do note that Dr Cook has sought to attend the workplace to confirm his assessment. The other recent medical reports11, including the post surgery reports from Dr Rodda12 and Dr Cook13 are also supportive of the view that the applicant is in general terms medically fit for the work in question.
 The potential medical issues relied upon by the respondent, including the applicant’s medical history and the caveats that may be implied into some of the medical reports (and the earlier reports in particular), are not in my view of such significance that a return to work would be problematic. Rather, they indicate that provided some reasonable account is taken of the need for work hardening to take place, Mr Cook will most likely be able to undertake all of the normal duties without restrictions. This does not mean that an FCE is inappropriate, and I have already found that in general terms the use of such an assessment is reasonable in this workplace provided that it takes place and is used in the proper medical context, and subject to natural justice. However, given all of the circumstances now evident I do not consider that it is appropriate to require such to be undertaken prior to determining this matter. I also do not consider that the absence of an FCE in the present context should prevent consideration of a reinstatement order.
 If a reinstatement order is made, the conduct of an FCE will, subject to the issues alluded to above, be a matter for ACI. I do not consider that I have the power under s.391 of the Act to make a conditional reinstatement order, and in any event, such is not appropriate or necessary in these circumstances. The fact that ACI wishes to conduct an FCE and may need to deal with the consequences of such are also not factors that make reinstatement inappropriate given all of the circumstances applying in this case.
 Further, the fact that Mr Cook will need to be accommodated back into the organisation after an absence of some time and be subject to some work hardening, does not in this case demonstrate an unreasonable burden upon the respondent or its other employees and are not considerations that militate against reinstatement.
 In reaching the above conclusions I have considered the potential implications of the apparent Rehabilitation and Return to Work Plans (RRTW plans) provided by the respondent after the conclusion of the hearing in this matter. 14 The two versions of the RRTW plan are apparently updated versions of an earlier document developed in relation to Mr Cook’s workers compensation claim. The first one of these new RRTW plans included reference to a lifting restriction as part of the return to work section of the plan. A subsequent plan removed reference to any lifting restrictions but retained reference to the fact that Dr Cook wished to undertake a worksite inspection to confirm his medical clearance. I also note that the description of the injuries was also modified to be more consistent with the history of the applicant’s condition as previous understood.
 The RRTW documents are relevant but in themselves of some-what limited value in the present context, however I have considered the potential implications. Taken at their highest, even if some lifting restrictions apply as part of a return to work arrangement (and these are not contained in the second version), this must be considered in the context of all of the contemporary medical reports. Further, these plans are now based around the medical clearance that has been provided and are to some degree on hold pending the resolution of this matter. I also observe that if anything, the RRTW plans tend to confirm that the necessary adjustments to resume full duties and any further sign-off on the applicant’s medical capacity for work that may arise from a reinstatement order can be effectively dealt with under the auspices of such a plan.
 I have also considered the question of compensation and I accept the proposition advanced by Ms Zeitz for the respondent that the payments made to the applicant under the relevant WorkCover scheme would not, given the medical clearance, prevent a compensation order under the Act actually providing some benefit to Mr Cook. However, given my conclusion in relation to the appropriateness of reinstatement of the applicant and the operation of s.390(3) of the Act, compensation in lieu does not arise in this matter.
 I find that in all of the circumstances of this matter, including those considerations discussed in the merit decision and above, it is appropriate that Mr Cook be reinstated to his former position. An order will be made pursuant to s.391(1)(a) of the Act.
 No order to restore lost pay is sought. It is however appropriate that an order to maintain the continuity of the applicant’s employment and period of continuous service with ACI be made as contemplated by s.391(2) of the Act.
 The orders to give effect to the above are being issued in conjunction with this decision. 15
T Rossi of Moody Rossi and Co (with permission) for Mr Cook.
S Zeitz of Zeitz Workplace Lawyers (with permission) for ACI Operations Pty Ltd.
Final written submissions:
February 2, 3, 9 and 13.
1 Cook v ACI Operations Pty Ltd  FWA 7114.
2 I considered that it was appropriate in these circumstances to await the stabilisation of the applicant’s immediate medical condition, particularly given the absence of demonstrable prejudice to either party. However, I did not consider that it was appropriate to await the final outcome of any dispute that might arise in the workers compensation jurisdiction.
3  FWA 1569, 11 March 2011 per O’Callaghan SDP.
4 Transcript PN3516. This view also supported by Mr Rossi - Transcript PN3554.
5 AIRC PR946584, 13 May 2004 per Harrison SDP, Ives DP and Cribb C.
6 AIRC PR942856, 20 January 2004, per Lawler VP, Kaufman and Mansfield C.
7 The respondent did not lead the foreshadowed evidence to support any such contention.
8 These matters were determined under the Workplace Relations Act 1996.
9 Paras  and  of the merit decision.
10 Exhibit A4.
11 This includes the pre and post surgery reports contained in Exhibit R10 - ACI-1.
12 Exhibit A6.
13 Exhibit A5.
14 The RRTW plans were only provided to the respondent after the hearing. Consideration of the plans was opposed by the applicant and I invited submissions as to their admissibility, weight and utility before determining that issue and the matter more generally. I was not prepared to reopen the matter generally given the nature of that material, the other evidence before the Tribunal and my findings more generally. The RRTW plans are however relevant, albeit with little weight to be attached.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR518790>