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 [[2012] FWAFB 3292] for result of appeal.

[2012] FWA 140

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

Dale Cook
ACI Operations Pty Ltd



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.


[1] 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.

[2] 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.

[3] In the merit decision, I also found as follows in relation to the potential remedies available under the Act (endnotes omitted):

[4] 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).

[5] 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.

[6] 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


[7] 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.

[8] 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.

[9] 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.

[10] 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.

[11] 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.

[12] Mr Rossi for the applicant also relied upon the earlier submissions advanced in this matter as they touch upon the question of remedy.


[13] 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.

[14] 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.

[15] 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

[16] ACI contended that the assessment of appropriateness would need to be approached in a practical and realistic way (Meyer v Qantas Airways Limited5 and involve consideration as to whether reinstatement would place unreasonable burdens upon the employer or other employees (Smith v Moore Paragon6).

[17] 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


[18] 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.

[19] 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:

[20] In Smith v Moore Paragon, that Full Bench said (footnotes omitted):

[21] Earlier in the same case, the Full Bench also indicated:

[22] Notwithstanding the marginally different statutory context 8, in my view the above approach remains generally apposite.

[23] 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.

[24] 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

[25] 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.

[26] 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.

[27] 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.

[28] 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.

[29] 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.

[30] 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.

[31] 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.


[32] 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.

[33] 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.

[34] 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.

Hearing details:

January 31.

Final written submissions:

February 2, 3, 9 and 13.

 1   Cook v ACI Operations Pty Ltd [2011] 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   [2011] 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 [118] and [119] 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.

 15   PR520125

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