[2014] FWC 2345

FAIR WORK COMMISSION

DECISION

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

Mr Robert Henegan
v
Queensland Bulk Handling Pty Ltd
(U2013/10583)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 APRIL 2014

Application for unfair dismissal remedy - Arbitration.

OVERVIEW

[1] Robert Henegan applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his dismissal by Queensland Bulk Handling Pty Ltd (QBH). Mr Henegan was employed from 2 June 2009 in the capacity of Maintainer Operator. He was dismissed on 27 May 2013.

[2] The background to the dismissal can be briefly stated. Mr Henegan sustained a workplace injury to his right knee on 2 August 2009. Mr Henegan was rostered off until 7 August 2009 when he returned to work and commenced performing light duties. Mr Henegan continued to seek medical treatment following the injury, and on 2 October 2009 was diagnosed with a torn meniscus for which he had surgery performed by his treating orthopaedic specialist, Doctor McMeniman.

[3] Following the surgery, Mr Henegan returned to work on 26 October 2009 where he continued to perform light duties. When he continued to experience problems with his right knee, Mr Henegan took leave of absence from QBH from 29 November 2011, and had further surgery on 10 January 2012. Mr Henegan returned to work on light duties on 3 April 2012 and continued to perform those duties.

[4] In March 2013, QBH requested that Mr Henegan be assessed by Dr Vern Madden, QBH’s Health Service Provider and commenced to make arrangements for that assessment to be conducted. Dr Madden examined Mr Henegan on 3 May 2013 and concluded that Mr Henegan’s condition is slowly progressive and that he is permanently unfit for his role of maintenance fitter. As a result of Dr Madden’s report, QBH dismissed Mr Henegan on the grounds that he would be placed at an unacceptable level of risk if he returned to his substantive role as a maintainer operator, and that no other employment options were available to Mr Henegan at QBH or its associated entities.

[5] In the period between the request being made and the examination by Dr Madden being conducted, Mr Henegan saw Dr McMeniman, who provided a report stating that Mr Henegan’s symptoms had settled sufficiently for him to resume his normal duties.

ISSUES IN DISPUTE

[6] The Construction Forestry Mining and Energy Union - Mining and Energy Division, contends on behalf of Mr Henegan, that there was no valid reason for the dismissal because:

● Mr Henegan is fit to resume his duties as a maintenance operator;
● QBH’s conclusion was incorrect on the basis that it accepted evidence from Dr Madden, a General Practitioner, over that of Dr McMeniman Mr Henegan’s treating specialist; and
● QBH should have provided Dr McMeniman with an outline of its concerns and asked him to respond before reaching any conclusion in relation to Mr Henegan’s fitness to resume his normal duties.

[7] It is also submitted that Mr Henegan’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable because:

● Mr Henegan’s light duties were removed or he was directed not to perform them instead of being allowed to remain on those duties until he was fit to resume normal duties;
● Mr Henegan was sent to see Dr Madden; and
● When confronted with conflicting medical information, QBH did not allow Mr Henegan an opportunity to provide further clarification or information.

PROCEDURAL MATTERS

[8] The application was made on 17 June 2013, within the time required in s.394(2) of the Act. Mr Henegan is a person protected from unfair dismissal as defined in s.382 of the Act. QBH is not a small business and the dismissal was not a redundancy.

[9] The matter was dealt with by way of a hearing conducted in Brisbane, as it was considered that this was the appropriate course. Permission was granted for QBH to be legally represented, on the basis that it would enable the matter to be dealt with more efficiently, taking into account its complexity and that no issue of fairness arose. Mr Henegan was represented by Mr Newman, Legal Officer, of the Construction, Forestry, Mining and Energy Union and QBH was represented by Mr Perry of Counsel, instructed by Norton Rose Fulbright.

[10] Evidence in support of the application was given by Mr Henegan on his own behalf  1 and by:

● Dr Peter McMeniman, Orthapaedic Surgeon; 2 and
● Mr Shane Brunker, District Vice President of the CFMEU. 3

[11] Evidence for QBH was given by:

● Dr Vern Madden, General Practitioner; 4
● Mr Michael Raff, Maintenance Superintendant, QBH; 5
● Mr Tony Nielsen, Port Operations Manager;  6 and
● Ms Dianne Armbrust, Human Resource Manager, New Hope Corporation Limited. 7

[12] The parties agreed that Dr McMeniman and Dr Madden would give their evidence so that each was present when the other gave evidence and could reply.

EVIDENCE

Mr Henegan’s injury

[13] It is not in dispute that Mr Henegan injured himself on 2 August 2009. The injury occurred as he was walking down some stairs carrying a welder and some metal rods. Mr Henegan dropped the rods and as he bent to pick them up, twisted his right knee. Mr Henegan logged and reported the injury and after returning to work on 7 August 2009 following some rostered days off, sought to attend a doctor and this was arranged by his supervisor. Following tests, Mr Henegan saw Dr McMeniman on 15 September 2009. Dr McMeniman’s report of this initial consultation indicates that Mr Henegan injured his right knee and his back and that an arthroscopy will be performed when it is approved by WorkCover. In the period from 2 August until 2 October 2009 Mr Henegan performed light duties at work and wore a knee brace. 8

[14] The first surgery was performed by Dr McMeniman on 2 October 2009. After a three week absence, Mr Henegan returned to work and continued to perform light duties. Mr Henegan attended physiotherapy on a weekly basis and took an anti-inflammatory drug for the pain that he was experiencing.

[15] Dr McMeniman saw Mr Henegan on 23 April 2010, and reported to Mr Henegan’s general practitioner that six months from his surgery, Mr Henegan continued to experience significant problems involving pain, intermittent clicking, catching and difficulty when he stands for any period of time and that it was hoped that these symptoms would settle. 9

[16] On 3 June 2011 Dr McMeniman reported that Mr Hengegan had continued problems and that degenerative change would be high on the cause of his symptoms. 10 On 9 June 2011 Dr McMeniman provided a report to Q-Comp setting out Mr Henegan’s history and indicating that he felt Mr Henegan’s symptoms were due to ongoing mechanical change in the medial compartment of his knee, and that an MRI had been organised. The subsequent report following the MRI stated that it may assist Mr Henegan’s symptoms if he was fitted with a brace and that consideration may need to be given for a further surgical procedure - a high tibial osteotomy. 11

[17] On 27 September 2011, Dr McMeniman reviewed Mr Henegan and provided a further report to WorkCover wherein he responds to certain questions, stating that although Mr Henegan does have some degenerative change in the medial compartment of his knee and mucoid degeneration of his ACL, his ongoing symptoms date from his meniscal tear following his workplace injury. 12 When WorkCover did not approve the further surgery proposed by Dr McMeniman, Mr Henegan decided to use his private health insurance for this purpose and the surgery was performed by Dr McMeniman on 10 January 2012. There was evidence of a disagreement between Mr Henegan and QBH about assistance that would be provided to Mr Henegan to supplement his out of pocket expenses. This matter is not relevant to the issues in dispute in these proceedings.

[18] Dr McMeniman gave Mr Henegan a further medical certificate from 9 October 2010 to the date of the surgery and for a period of three months post operatively. 13 In a report following the surgery, Dr McMeniman noted an increase in calcific deposition involving Mr Henegan’s articular surfaces.14

[19] On 20 January 2012 Dr McMeniman reviewed Mr Henegan and noted that his wounds had healed well and that he was going to start a gentle passive range of movement program. 15 Dr McMeniman gave Mr Henegan a certificate to start on a graduated return to work program on Monday 5 March 2012.16 On 19 June 2012 Dr McMeniman reviewed Mr Henegan’s condition and provided a report to his general practitioner in the following terms:

“His knee continues to cause symptoms and he still finds any significant physical activity causes significant problems. He still has significant quadriceps wasting which gives him episodes of insecurity and he has anterior knee symptoms consistent with patello-femoral pathology.

I think the best option would be for Robert to stay in his current level of employment. I think it is doubtful that he will manage to get back to doing heavy physical work in the foreseeable future.

I will send a letter to his employer to see if we can achieve this.” 17

[20] On 5 October 2012, Dr McMeniman provided a report to Mr Henegan’s general practitioner Dr Flegg, stating that Mr Henegan experiences ongoing problems with his knee after surgery; continues to complain of ongoing symptoms; and has been given a certificate to continue with restricted duties until the end of the year. 18 On 18 January 2013, Dr McMeniman reports that Mr Henegan is gradually improving; can continue with his current program; and will be reviewed after three months.19

[21] On 23 April 2013, Dr McMeniman certified that Mr Henegan had “graduated from light duties gradually integrating to normal duties”. 20 Dr McMeniman also provided a report on that date in the following terms:

“This man was reviewed on 23/04/2013.

His symptoms have settled sufficiently for him to resume more physical work activities. In particular he should be able to resume working as a fitter operator.

He should be able to work on heavy machinery. He should be able to perform maintenance work on conveyor belts as he has done in the past.

He does have an osteoarthritic knee however his symptoms have settled sufficiently for him to resume his normal work activities.” 21

[22] As previously noted, Mr Henegan was dismissed on 27 May 2013. In connection with these proceedings, the CFMEU on 17 September 2013, corresponded with Dr McMeniman on behalf of Mr Henegan and requested that he respond to a number of questions including whether Mr Henegan was fit to perform his usual duties of maintainer operator. Dr McMeniman was also invited to comment on any aspects of Dr Madden’s report that he wished to comment on.

[23] In response to that request, Dr McMeniman reviewed Mr Henegan on 19 September 2013, and provided a report stating that Mr Henegan does not complain of any symptoms with regard to his knee, and appears fit to perform his usual duties as a maintainer operator. Dr McMeniman also indicates that there are no specific activities that Mr Henegan could not undertake safely and that identification of any accommodation the Company could make in relation to the performance of his work is not relevant. Dr McMeniman also notes that the symptoms Mr Henegan identified that he was experiencing identified in Dr Madden’s report appear to have resolved. 22

[24] Dr McMeniman said under cross-examination with respect to the reports of 23 April and 19 September 2013, that his process of ascertaining the extent of the duties involved in the job of a maintainer operator, and assessing Mr Henegan’s fitness to perform those duties, was to ask Mr Henegan whether he thought he could perform them. Dr McMeniman agreed that the extent of his factual knowledge about Mr Henegan’s fitness was based solely upon what Mr Henegan told him.

[25] Dr McMeniman agreed that he had never examined Mr Henegan’s left knee by arthroscopic examination or by use of x-ray or MRI and the extent of osteoarthritis in his left knee was unknown. Dr McMeniman also agreed that in his examination of September 2009 he had stated that Mr Henegan had pain in both knees. Further, Dr McMeniman agreed that his comments in relation to both Mr Henegan’s knees being affected in 2009 would be entirely consistent with the conclusion in Dr Madden’s report that Mr Henegan had osteoarthritic issues of a degenerative kind in both knees.

[26] Dr McMeniman agreed that in the entire time he had seen Mr Henegan he had maintained a condition whereby he suffered pain in his knee requiring analgesics, which did not seem to be diminishing, and that surgery such as that undergone by Mr Henegan results in degenerative changes and deterioration of the joint which is irreversible. In relation to this report to WorkCover on 9 June 2011 23, Dr McMeniman agreed that the information provided in that report was entirely consistent with Dr Madden’s examination of Mr Henegan on 3 May 2013.

[27] Dr McMeniman was also cross-examined about a report he provided to WorkCover arising from an attendance by Mr Henegan on 27 September 2011, wherein he answered a series of questions and responded to reports provided by two other specialists. Dr McMeniman agreed that it was his belief that Mr Henegan’s condition was related to the meniscal tear, and the two other specialists believed that his condition was related to misalignment of Mr Henegan’s knees and the ongoing degenerative osteoarthritic condition that he must have suffered from prior to sustaining that injury. Dr McMeniman said that the views of the two other specialists were consistent with those of Dr Madden, who had also highlighted arthritic degenerative changes in Mr Henegan’s leg.

[28] Dr McMeniman agreed that Mr Henegan had not had an arthroscopic examination since January 2012, and at best his calcific deposition would remain at the level seen by Dr McMeniman in January 2012. Further, Dr McMeniman agreed that Mr Henegan had been on alternative duties from when he was injured in 2009 until the time that his employment was terminated. In response to the proposition that it would not be expected that Mr Henegan would continue to complain of pain nine months after the second surgery, Dr McMeniman said that if the second surgery did what it was supposed to do, the bone would join up in three months and there would be a few months to regain muscle strength. Dr McMeniman also agreed that the problems that Mr Henegan continued to complain of in October 2012 would appear to be independent of any beneficial consequences of that second surgery.

[29] Dr McMeniman was shown a return to work plan for Mr Henegan completed by Dr Flegg on 27 April 2013 24. He agreed that Dr Flegg said on that date that Mr Henegen was subject to the following restrictions:

● No kneeling or squatting activities;
● No walking on uneven ground;
● Confined to the workshop and administration building only; and
● No intensive testing of the knee.

[30] Dr McMeniman agreed that those restrictions were not compatible with Mr Henegan doing the job of an operator maintainer as he understood the duties of that job. Dr McMeniman further agreed that the restrictions outlined by Dr Flegg and later by Dr Madden, are entirely inconsistent with the duties that Mr Henegan stated that he was capable of doing. Dr McMeniman also said that Mr Henegan’s statement in a letter to Mr Neilson of 20 May 2013 that Dr McMeniman had allowed him to commence serious reconditioning exercises in May 2013 was incorrect, and that he had not told Mr Henegan that he could commence such a program.

[31] Mr Henegan maintained that following the consultation on 23 April 2013, Dr McMeniman cleared him to return to work and told him he was ready to go back to full duties and to ease his way back into it. Under cross-examination, Mr Henegan agreed that what probably happened at that consultation was that Dr McMeniman did not examine him and give him a clearance, but rather asked him whether he thought that he could do some or all of the tasks in his job. Mr Henegan said that he could not recall whether he discussed a hardening program with Dr McMeniman at that consultation.

[32] Mr Henegan was also cross-examined about a claim for damages that he made under the Workers Compensation Act 2003. In this regard Mr Henegan was shown a letter from Sciacca’s Lawyers attaching his Notice of Claim for Damages. 25 Mr Henegan agreed that the claim included a component for future economic loss and that one of the matters underlying the claim was that Mr Henegan could not resume work as a maintainer operator. Mr Henegan further agreed that this was the position up until 14 February 2013 when the claim was settled, and that he received an amount of $320,000.00 in that settlement.

Request for Mr Henegan to see Dr Madden

[33] It is not in dispute that at all relevant times Mr Henegan was covered by an individual transitional employment agreement which governed the terms and conditions of his employment. That agreement provides at clause 14 that should QBH have any concerns about his ability to perform his duties, QBH may direct him to attend a medical assessment by a health service provider nominated by QBH. The agreement also provides that if so directed Mr Henegan is required to attend and co-operate during the medical assessment. 26

[34] Mr Raff became aware in January 2013 that Mr Henegan had been on light duties for around three years. He had a discussion with Ms Armbrust, Mr Abel and Mr Soto, the Corporate Health and Safety Manager, about how Mr Henegan’s injury could be managed so that he could return to full duties. It was decided that Mr Henegan would undergo an occupational assessment and that Konekt, a provider of occupational and risk management solutions, would conduct a workplace assessment based on what was required in the role, so that Mr Henegan could be assessed against the requirements of the role.

[35] On 5 March 2013, Mr Nielson and Mr Raff had a meeting with Mr Henegan during which there was a discussion about how his rehabilitation would progress. On 6 March 2013 Mr Nielson sent an email to Mr Henegan setting out the process that QBH required him to follow in order to return to his usual role. The initial proposal was that Konekt would undertake an assessment of the functional capabilities for the role of fitter after Dr Madden had inspected the site. Mr Henegan would then have an appointment with Dr Madden who would refer him to Konekt for assessment of his performance against those functional capabilities. Dr Madden would use that assessment and his knowledge of the requirements of the role to highlight any differences in his current performance against that required for the role.

[36] Mr Nielson said that he was concerned when he saw the letter from Dr McMeniman of 23 April 2013 in relation to Mr Henegan graduating from light duties because he could see that Mr Henegan was still having problems with his knee. Mr Nielson was also concerned that Dr McMeniman’s letter did not contain any detail or suggest any knowledge about conditions at the site. Mr Nielson reviewed the suitable duties plan provided by Dr Flegg and was concerned that there was not any real reduction in the restrictions that had previously been in place, for Mr Henegan.

[37] Mr Nielson was also concerned that the words “no operating equipment” had been crossed out and that Mr Henegan would be at risk climbing into a dozer or ship loader. Further, the restriction “no walking on uneven ground” was left in the plan and Mr Nielson was concerned that this demonstrated a lack of understanding about the environment in which Mr Henegan is required to work. The comment “no intensive testing of the knee” did not make sense to Mr Nielson and he believed that the amended plan generally lacked clarity.

[38] On 24 April 2013, there was an incident during which Mr Henegan refused to participate in the capability assessment to be conducted by Konekt on the basis that he did not feel comfortable doing it. Mr Henegan said that he did not wish to participate in the capability assessment because Dr McMeniman had told him to ease back into his normal duties and he was having a bad day with his knee.

[39] On 29 April 2013 there was a further discussion during which Mr Raff and Mr Nielson told Mr Henegan that he would be required to attend an appointment with Dr Madden and that Konekt had undertaken the functional assessment of the operator maintainer role. Mr Raff said that during this discussion he told Mr Henegan that QBH could not sustain ongoing suitable duties as it was running out of tasks for him to do. Mr Henegan agreed that he would undertake the assessment with Dr Madden.

[40] Mr Raff’s file note of that discussion states that Mr Henegan apologised for the events of 24 April and said that he had issues with his hips which were causing back pain and had taken two Endone tablets for the pain on that date. It was agreed that Mr Henegan would attend an appointment with Dr Madden in the week of 29 April, and the appointment was subsequently scheduled for Friday 3 May 2013.

[41] Mr Henegan then sent an email to Mr Raff on 2 May 2013 requesting that Mr Raff put in writing the reasons for Mr Raff requiring him to attend a general practitioner who had no knowledge of his injuries in contrast with his own general practitioner who had been kept up to speed by his specialist throughout the process of his injury. Mr Henegan concluded his email by stating that he found the Company’s insistence that he attend a general practitioner - not even a specialist - to be stressful and bemusing. 27

[42] Mr Raff responded by email informing Mr Henegan that the information provided by Dr McMeniman and Dr Flegg was contradictory and unclear and Dr Madden’s assistance was required to help QBH understand whether Mr Henegan could return to his former role in the foreseeable future without placing him at an unacceptable level of risk. A copy of the letter to Dr McMeniman requesting that he undertake a functional capacity assessment of Mr Henegan and provide a written report, so that Mr Henegan’s capacity to perform the inherent requirements of his job could be assessed, was provided to Mr Henegan.

[43] The CFMEU took up the issue on behalf of Mr Henegan and wrote to Mr Downs on 2 May 2013, maintaining that Mr Henegan’s return to work and medical advice were sufficient and that an assessment was not reasonable or necessary. The CFMEU also sought an explanation about why Mr Henegan was being required to attend the assessment and contended that a refusal on his part to attend would not constitute failure to follow lawful and reasonable instruction.

[44] QBH responded on the same date under the signature of Mr Raff. In its response, QBH reiterated that it had the right under Mr Henegan’s contract of employment to require him to undertake a medical assessment by its nominated health service provider. The response also reiterated that the information provided by Dr Flegg and Dr McMeniman was contradictory and required clarification, and that Dr Madden had been invited to contact either Doctor should he require further information.

Dr Madden’s assessment

[45] Dr Madden as part of the process of assessing Mr Henegan’s fitness to resume normal duties as a Maintainer Operator, caused a task analysis to be commissioned from Konekt. The task analysis was appended to Dr Madden’s statement, 28 and relevantly states that:

● The work environment consists of even and uneven surfaces and loose coal may also be present;
● There are requirements to walk on even and uneven surfaces, steep inclines and climbing stairs/ladders which range from frequent to occasional depending on tasks being undertaken; and
● Squatting/kneeling/bending is undertaken frequently to perform tasks such as repairing conveyor belts.

[46] Dr Madden also conducted his own assessment of the physical requirements of the Maintainer Operator role by attending at QBH. Dr Madden’s notes state that:

● Distance between stockpiles may be 500 metres;
● Access to change rollers on conveyor belts can be awkward;
● Stairs to towers which are the conveyor belt distribution area are metal grates and coal can catch in them representing a trip hazard;
● There are four flights of stairs to the initial access to a tower and then another seven flights from mid point to the top;
● Conveyor belts in the towers are accessed by steel walkways which also constitute a trip hazard; and
● There is a build up of coal spilling from conveyors. 29

[47] Dr Madden said that in addition to the task analysis performed by Konekt, he had initially proposed to have Konekt undertake a functional capacity assessment as part of assessing whether Mr Henegan was fit to resume his normal duties. Dr Madden said that when he saw Mr Hennegan on 3 May 2013 he formed the view that the problem was so severe that he did not require a functional assessment in order to determine Mr Henegan’s fitness to resume his usual duties.

[48] Dr Madden assessed Mr Henegan on 3 May 2013. According to Dr Madden’s notes of the assessment, he explained to Mr Henegan that the purpose was to determine whether it was safe for him to return to the “maintenance fitter” role. In his notes of the assessment, Dr Madden notes that Mr Henegan has hip pain and pain in his right knee. It is also noted that Mr Henegan has pain in his right knee if he carries anything heavy, approximately 15 kilograms and he has a standing and sitting tolerance of about 30 minutes and a walking tolerance of 500 metres. Further it is noted that Mr Henegan:

● has a mild limp;
● is unsteady using the stairs having to use the hand rail to support weight and maintain balance;
● performed poorly on a wobble board;
● had an unsteady heel to toe walk; and
● is unable to perform a safe squat.

The Report issued by Dr Madden states:

“As you are aware I have assessed the Queensland Bulk Handling terminal (site visit) and a formal assessment has been undertaken of the role by Konekt a copy of which was provided to me, such forming an integral part of my assessment.

It is my opinion that Mr Henegan is not fit to return to the role of maintenance fitter at Queensland Bulk Handling. His current knee function would mean there are significant restrictions in his ability to do the job. For example his ability to walk the distances required of the job over uneven ground is limited. He could not safely use the tower access stairs. He can’t kneel in order to gain access to conveyors for repairs. He is unable to squat and lift safely from ground level. As well as this there is a significant risk of further trip, slip, fall, twist injury to the right knee, in particular when walking up and down the inclines and declines next to the conveyor belt and walking up and down the tower access stairs. With the type and nature of the grating and the potential for loose coal to be present this represents a significant risk of re-injury to the right knee. As well there is evidence of early osteoarthritis in the left knee that could potentially be aggravated in much the same sway as the right knee has been by a twisting injury.

Due to the fact that the condition is slowly progressive it is my opinion that Mr Henegan is permanently unfit for this role. Please be aware that I took into consideration that some form of accommodation could be made such as the wearing of a knee stabilising brace. Unfortunately it is my opinion this would not provide adequate protection from a trip and fall injury nor would it allow him to squat to lift safely and the risk would remain of a similar injury to the left knee.”

[49] In a supplementary report Dr McMeniman corrected the title of Mr Henegan’s position and noted it was titled Maintainer Operator.

[50] In his statement to the Commission Dr Madden said that he considered whether it would be reasonable to limit Mr Henegan’s duties to an area where he could work safely, but on the basis of his knowledge of the workplace formed the view that the only safe place was the office. Dr Madden also said that in forming his opinion about Mr Henegan’s fitness he reviewed the letter from Dr McMeniman dated 24 April 2013 30 and the suitable duties plan amended by Dr Flegg. Dr Madden agreed with some of the restrictions recommended by Dr Flegg but said that on the basis of his understanding of the QBH site, it was his view that the workshop was not safe for Mr Henegan.

[51] Dr Madden also said that since he prepared his report, he has been shown the letter from Dr McMeniman dated 23 April 2013 31 and this did not change his view. Dr Madden said that based on his assessment of Mr Hennegan and all of the information he had reviewed, he is certain that if Mr Henegan was to return to his role as Maintainer Operator, that he would be injured again and to send him back to that role would be unconscionable.

[52] Under cross-examination, Dr Madden agreed that all employees would have an equal chance of injuring themselves if they slipped on walkways, but maintained that employees who are impaired would have a greater risk of slipping or tripping. Dr Madden maintained that there are two issues of suitability: current ability to perform a task and the risk of doing so. In Mr Henegan’s case, there was a small input (the slip) with a large consequence (two surgeries) which would not have occurred if Mr Henegan’s knee was normal. In this regard, Dr Madden said that in his opinion, Mr Henegan had an underlying osteoarthritis with a degenerate cartilage in both articular surfaces of the knee, which was the reason for the original injury. Dr Madden said that he had not reviewed Mr Henegan since 3 May 2013 and had nothing to contradict what Dr McMeniman said about his current fitness.

Light duties

[53] From August 2009 until he was stood down in May 2013 - other than for periods when he was absent from work having surgery and recovering - Mr Henegan was provided with light duties by QBH. The duties performed by Mr Henegan were office or workshop based and would otherwise have been performed by the mechanical supervisor, planners or tradespersons.

[54] Mr Henegan gave evidence about issues relating to the preparation of a light duties plan. The plan was eventually updated and modified by Mr Henegan’s general practitioner Dr Flegg in April 2013. Dr Flegg modified a previous plan by writing changes onto it. 32 That plan reflected Dr Flegg’s view about Mr Henegan. Mr Henegan emailed Mr Anthony Downs, QBH Logistic Superintendant, attaching the medical certificate provided by Dr McMeniman on 23 April indicating that he had “graduated from light duties gradually integrating to normal duties”.33

[55] In his oral evidence Mr Henegan said that the work that he was performing as light duties virtually dried up or was taken off him in or around January 2013. Mr Henegan agreed under cross-examination that he was doing very little work at that time.

[56] Mr Nielson said that the duties Mr Henegan was carrying out were office based work tasks assigned to him by the maintenance planners and the Maintenance Superintendant. These were tasks that would normally have been performed by the planners and Superintendant. Although Mr Henegan’s work was useful and somewhat productive, it was not the most efficient way for those tasks to be done, and not the way that Mr Nielson would normally assign work. Mr Nielson said that QBH would not have had anyone carrying out those tasks in a piecemeal way, but for Mr Henegan’s need for light duties.

[57] Under cross-examination, Mr Nielson said that by January 2013 the planners were finding it more difficult to find work for Mr Henegan to complete and that there was no natural course of work for him. Rather work had to be constructed. There had also been changes to how QBH planned its maintenance.

[58] Mr Raff said that the work that Mr Henegan was doing involved opening and closing work orders and this was usually done by tradespersons. Under cross-examination Mr Raff said that there is not a dedicated role at QBH doing this work and that people do it within their normal work roles. Mr Raff also said that these tasks were probably given to Mr Henegan to find him some work to do, and denied that the tasks were taken away from Mr Henegan.

[59] Mr Henegan made an unsuccessful application for a maintenance planner (mechanical) position. Mr Raff said that Mr Henegan was not successful because the role required a strong systems computer based person with experience in maintenance systems.

[60] Mr Nielson tendered an email from Mr Henegan dated 7 November 2012 in which he stated that he has lost confidence in his knee after months of rehab and does not know that he would ever be capable of going back to his role as a fitter, particularly given that it requires going up gantries and carrying equipment needed to do the job. The email goes on to request that consideration be given to getting Mr Henegan an office job.

The dismissal process

[61] As previously stated, Dr Madden conducted the assessment of Mr Henegan on 3 May 2013 and provided his report. On 14 May 2013, Mr Nielson and Mr Raff met with Mr Henegan to discuss the report they had received from Dr Madden. Mr Henegan was informed that the report indicated that he was permanently unfit for the role and was unable to conduct his role safely. Mr Henegan was also informed that potential vacancies within the New Hope Group had been reviewed and that none were suitable, and that QBH was unable to provide further suitable duties for him to perform. Mr Henegan was stood down with pay and was provided with a copy of Dr Madden’s report. Ms Armbrust confirmed that she conducted a review of vacancies across the New Hope Group and could not find any vacancy suitable for Mr Henegan.

[62] Mr Henegan sent an email to Mr Raff dated 20 May 2013, stating that Mr Henegan could only now start following a program to strengthen his knee and core muscles, and asking for an opportunity to follow it. Mr Henegan also asserted that Dr Madden was not a specialist and that he had been cleared to return to work by Dr McMeniman. Mr Henegan asserted that he had been forced to attend the appointment with Dr Madden who had tested him while in a weakened state. 34 Mr Henegan also said that Dr Madden’s assessment that he was unable to return to his role as a Maintainer Operator should be qualified by the insertion of the words: “at this time”.

[63] On 23 May 2013 the report from Dr McMenimen of 23 April 2013 was provided to Mr Nielson by Mr Brunker. Mr Nielson said that he was concerned about this report because it made broad statements that Mr Henegan “should” be able to perform certain activities and the opinions in it had been given without any assessment of the role, such as that carried out by Dr Madden. Mr Nielson continued to have serious concerns about the risk to Mr Henegan if he returned to the role of Maintainer Operator. Mr Nielson also believed that given Dr Madden’s experience with New Hope, his familiarity with the QBH site and the functional requirements of the Maintainer Operator role, that it was reasonable to rely on Dr Madden’s report over that of Dr McMeniman.

[64] Under cross-examination Mr Nielson said that an opportunity was given to Mr Henegan to provide whatever material he wished to provide in relation to his condition, and QBH did not seek clarification from Dr McMeniman about his report.

[65] A meeting was scheduled for 27 May 2013 which was attended by Mr Nielson, Ms Armbrust, Mr Raff, Mr Henegan and Mr Brunker. Mr Henegan was informed at that meeting that his employment was to be terminated, on the basis that it had been decided that he could not return to his role of Maintainer Operator. Mr Nielson, Mr Raff and Ms Armbrust said that they did not recall Mr Brunker or anyone at the meeting asking to see the Konekt Task Analysis report or suggesting that Dr McMeniman visit the site or clarify his comments.

[66] Mr Brunker maintained that he requested a copy of the Konekt report and that
Dr McMeniman be invited to QBH to undertake in inspection of the work site. Mr Brunker proposed a three month trial during which Mr Henegan would increase his workload as a Maintainer Operator and work harden his knee, consistent with the April 2013 report of Dr McMeniman. Mr Brunker also proposed that Mr Henegan would attend an appointment with an independent specialist after the three month trial. QBH did not agree to this proposal.

[67] Mr Brunker made a number of requests to QBH after the meeting for a copy of the Konekt report, which was not provided. Mr Nielson said that at the point the request was made, the matter was before the Commission and QBH had provided the report in its material relating to the application.

Events subsequent to the dismissal of Mr Henegan

[68] Mr Henegan was paid three weeks wages in lieu of notice. He was also paid an additional amount of $3000 to assist with the cost of retraining, and three months access to a career transition and general counselling service.

[69] Mr Henegan contends that since his dismissal he has improved his fitness and has lost 13kg in weight. This is consistent with advice from his doctors to strengthen his right knee and to lose weight so that less strain is placed on his knees. Mr Henegan has not found alternative employment since his dismissal and has had no income other than the payments made to him by QBH on termination of his employment. Mr Henegan has three children, with one aged thirteen being dependent on him and his wife. Mr Henegan’s wife is working full time and they are reliant on her income.

CONSIDERATION

Was there a valid reason for Mr Henegan’s dismissal?

[70] For the purposes of s.387(a) of the Act, a valid reason for dismissal is one that is sound, defensible and well founded, and is not capricious, spiteful or fanciful. 35 QBH maintains that there was a valid reason for Mr Henegan’s dismissal, on the basis that he was unfit to perform the inherent requirements of his position, and that he would be placed at an unacceptable level of risk if he returned to that position.

[71] The principles applicable to the question of whether the inability of an employee to perform the inherent requirements of a position is a valid basis for dismissal, were considered by a Full Bench of the Australian Industrial Relations Commission in J Boag and Son Brewing Pty Ltd v Button. 36 Those principles can be summarised as follows:

● When an employer relies on an employee’s incapacity to perform the inherent requirements of a position, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position. 37
● The inherent requirements of a position are its characteristic or essential requirements. 38
● A practical method of determining what those requirements are is to ask whether the position would be essentially the same if that requirement were dispensed with. 39
● To determine what the inherent requirements of a position are requires an examination of the tasks performed because it is the capacity to perform those tasks which is an essential requirement of the particular position. 40

[72] As the Full Bench said in J Boag:

“An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.” 41

[73] The fact that an employee has been performing alternative tasks for a period of time is relevant to whether a dismissal was unfair but is not determinative. The Full Bench in J Boag went on to note that a conclusion that a dismissal is unfair because an employee has been satisfactorily performing alternative tasks, also requires consideration of factors such as whether the continued employment of such an employee would place an unreasonable burden on the employer or other employees. 42

[74] Applying these principles to the present case, Mr Henegan was employed as a Maintainer Operator. It is not in dispute that the tasks he was undertaking - termed light duties - were constructed for him during a period when he was incapacitated, and that but for the requirement to find light duties for Mr Henegan, those tasks would have been performed by the Maintenance Superintendent, Planners, or by maintenance tradespersons as part of their role. There is also no evidence of benefit to QBH arising from Mr Henegan performing those tasks. Accordingly there is no basis for considering whether Mr Henegan could perform the modified duties.

[75] It is also not in dispute that the inherent requirements of the role of Maintainer Operator are the maintenance of plant and equipment and the operation of equipment to move coal. The plant and equipment required to be maintained includes conveyor belts spread over a significant area of almost 500 metres. To access the plant and equipment that is required to be maintained necessitates a significant amount of walking, including over uneven surfaces and metal walkways; climbing stairs that are made of metal grating; squatting and kneeling to repair conveyors; climbing on and off machinery and lifting and carrying tools and equipment. The role is performed in circumstances where coal can become stuck in the grating that makes up walkways and stairs, and presents an additional trip or slip hazard. The role also requires Maintainer Operators to climb on to and off plant such as dozers.

[76] I accept that in the absence of the capacity to perform these duties, the role performed by Mr Henegan would be fundamentally different to that of a Maintainer Operator. I also accept that at the point he was dismissed, Mr Henegan did not have the capacity to perform the inherent requirements of his position.

[77] In this regard, I prefer the evidence of Dr Madden on this point over that of Dr McMeniman. Dr Madden conducted a practical assessment on 3 May 2013, of Mr Henegan’s capacity to undertake the inherent requirements of the role of Maintainer Operator. It is apparent from Dr Madden’s evidence that Mr Henegan could not walk for a greater distance than the distance between the stock piles at QBH’s site, and that to perform the role of Maintainer Operator would be required to walk that distance more than once in a day or shift. Mr Henegan was unable to climb stairs, had poor balance and could not perform a safe squat. Dr Madden considered whether adjustments could be made to enable Mr Henegan to safely perform the inherent requirements of his role and reached a reasonable conclusion that this could not occur.

[78] Dr Madden’s assessment was conducted in light of his own direct knowledge about the work environment at QBH and in circumstances where he simulated the types of conditions to which Mr Henegan would be exposed in that workplace. It is apparent from Mr Henegan’s evidence that he accepts Dr Madden’s conclusions, and objects to them only on the basis that they were valid at the time Dr Madden saw Mr Henegan, and that at that time, Mr Henegan was in a “weakened state”.

[79] In all of the circumstances, it was reasonable for QBH to rely on the opinion of Dr Madden and to prefer that opinion over that of Dr McMeniman. I accept that Dr McMeniman is an eminent specialist. However, Dr McMeniman’s reports were couched in language which reflected that they were based on what Mr Henegan had stated about his capacity to perform the role of Maintainer Operator. This is reflected in the use of terminology by Dr McMeniman such as “should be able to resume working”.

[80] Further I do not accept that the fact that QBH did not approach Dr McMeniman and request that he inspect the site and provide an opinion, or that the Company did not agree to such a request at the dismissal meeting, supports a conclusion that there was no valid reason for the dismissal of Mr Henegan.

[81] Although he complains of not being given a copy of the Konekt report prior to his dismissal, Mr Henegan does not dispute its contents in these proceedings. Neither does Mr Henegan dispute in any substantial way, the analysis of the tasks required to be performed by a Maintainer Operator undertaken by Dr Madden.

[82] I do not accept that the fact that the Konekt report was not provided to Mr Henegan or the CFMEU prior to the dismissal, leads to a conclusion that the reason for the dismissal was not valid. Konekt did not assess Mr Henegan, due to his refusal to participate in the process at that point. Konekt undertook an analysis of the tasks required to be performed generally by Maintainer Operators, and the analysis set out in the Konekt report which was in evidence in these proceedings was not disputed by Mr Henegan. The assessment of Mr Henegan’s capacity to perform the role of a Maintainer Operator was conducted by Dr Madden, who decided that there was no point getting Konekt to conduct a functional capacity assessment of Mr Henegan due to Dr Madden’s assessment of Mr Henegan’s capacity.

[83] It is also the case that Dr McMeniman said that if he had seen the Konekt report before preparing his report in April 2013, his view would have been unchanged. That is because, as previously noted, Dr McMeniman based his view on what Mr Henegan told him. Further, the Konekt report did not inform the decision to dismiss Mr Henegan. The basis of the dismissal was Dr Madden’s report, and this was provided to Mr Henegan before the discussion which led to his dismissal.

[84] Mr Henegan provided inconsistent evidence about his capacity to work as a maintainer operator and made a range of statements at various times which are difficult to reconcile. While I understand Mr Henegan’s desire to maintain his employment with QBH, I am of the view that he was not entirely frank in his evidence to the Commission about events that preceded his dismissal. It was in Mr Henegan’s interests to state to Dr McMeniman that he could perform the role of Maintainer Operator. It is also the case that Mr Henegan provided incorrect information to QBH to the effect that Dr McMeniman had told him that he could commence serious reconditioning exercises. This was denied by Dr McMeniman. Mr Henegan was somewhat evasive in his explanation about this matter.

[85] It is also the case that until 5 March 2013, when Mr Henegan was informed of the requirement to see Dr Madden, Mr Henegan gave every appearance of accepting that he could not return to the role of Maintainer Operator. In November 2012 Mr Henegan sent an email to Mr Nielson stating that he did not know that he would ever be capable of going back to that role. In February 2013, Mr Henegan accepted a substantial payment of some $320,000 in damages, based at least in part on the assertion that he could not return to the role of Maintainer Operator. There is no evidence that Mr Henegan told Dr McMeniman that he felt ready to return to the Maintainer Operator role until after he was directed to attend the assessment with Dr Madden.

[86] Dr McMeniman accepted that Mr Henegan’s statement that he was able to perform the role of Maintainer Operator was the extent of his factual knowledge about that role and Mr Henegan’s capacity to undertake it. Dr McMeniman also agreed that the return to work plan prepared by Dr Flegg in April 2013 was inconsistent with what Mr Henegan stated that he was capable of doing. Further, Dr McMeniman agreed that the views of specialists that had concluded Mr Henegan’s problems were due to the degenerative condition were consistent with those of Dr Madden.

[87] In my view, at the point Mr Henegan was dismissed, he was not able to perform the inherent requirements of his position and this situation was unlikely to change. QBH had made reasonable inquiries and had gathered medical evidence to establish Mr Henegan’s incapacity. That QBH did not consult Dr McMeniman or give him an opportunity to visit the site and conduct his own assessment, does not render the process that QBH adopted unreasonable. QBH had the right under Mr Henegan’s contract of employment to require him to see its health provider in circumstances where it had concerns about his ability to perform his duties.

[88] In the circumstances of this case, there was nothing unfair or unreasonable about the way in which this right was exercised and the outcome of that process provided a valid reason for dismissal. In this regard, I accept the evidence of Dr Madden to the effect that the Maintainer Operator role has inherent risks, but that persons who are impaired have a greater risk of injury due to trips or slips, and that for such persons a small input such as a twist or strain can have significantly greater consequences than would be the case for persons who do not suffer impairment.

[89] I also accept that the evidence of both Dr Madden and Dr McMeniman establishes that Mr Henegan has a degenerative condition in both knees and that surgery of the kind that Mr Henegan underwent will result in deterioration that is irreversible. Further, Dr McMeniman’s evidence that if the second surgery was effective Mr Henegan should not be complaining of pain nine months after it had been performed, indicates that the condition suffered by Mr Henegan is degenerative and irreversible. The fact that Mr Henegan may have lost weight and commenced an exercise program at the point this application was heard, says nothing about his capacity to undertake the inherent requirements of his job in May 2013, when he was dismissed.

[90] Finally, I do not accept that the dismissal was not for a valid reason, on the ground that light duties were taken off Mr Henegan. In my view, the evidence establishes that those duties were provided for approximately three years and dried up and/or were no longer able to be provided because of changes at the workplace. I am also of the view that QBH has provided alternative duties for an extensive period in circumstances where there is no indication that Mr Henegan will ever be able to return to his substantive role, and that it is not reasonable that QBH be required to continue to do so.

Procedural matters

[91] That QBH has complied with the procedural considerations in sections 387(b) to (g) of the Act is not in dispute. Mr Henegan was notified of the reason for his dismissal and was given an opportunity to respond to that reason. Mr Henegan was allowed to have a support person present at all meetings where his dismissal was discussed. The dismissal did not relate to unsatisfactory work performance and the consideration of whether Mr Henegan was warned about this matter is not relevant. QBH is a substantial enterprise and has dedicated human resource management specialists or expertise. The considerations in s.387(f) and (g) are not relevant in this case.

Other relevant considerations

[92] Mr Henegan contends if the Commission is satisfied that he was not fit to perform the role of Maintainer Operator in May 2013, then on the evidence, the Commission should be satisfied that Mr Henegan is, and was as at September 2013, fit to perform that role. It is also contended that in January 2013, instead of allowing Mr Henegan to resume his duties or remain on lighter duties for a slightly longer period, QBH took a decision to:

● Remove light duties from Mr Henegan or direct Mr Henegan not to perform them:
● Sent Mr Henegan to see Dr Madden; and
● When confronted with differing medical evidence, did not allow Mr Henegan an opportunity to provide further information or clarification.

[93] I am unable to accept that any of these considerations render Mr Henegan’s dismissal unfair. The evidence does not support a finding that QBH removed light duties from Mr Henegan. Rather the evidence establishes that QBH provided such duties for three years, in circumstances where the duties had to be constructed and a role created for Mr Hegegan to perform work that would usually have been performed by planners or tradespeople as part of their maintenance duties. I can see no unfairness in the fact that after that period of time, and in the face of a report that established that Mr Henegan would not be able to resume his substantive role in the foreseeable future or at all, that QBH decided that it was no longer prepared to make those duties available.

[94] There is nothing unfair about QBH exercising a right under the agreement that set Mr Henegan’s terms and conditions of employment, to require him to attend an assessment conducted by QBH’s medical provider. I do not accept that there was anything unfair about the way that Dr Madden approached the assessment or the material that he relied on in reaching his conclusions.

[95] I am also unable to accept that QBH did not allow Mr Henegan an opportunity to provide further information or clarification about the conflicting medical reports. For the reasons set out above the fact that the Konekt report was not provided to Mr Henegan or his representatives until after the dismissal is not relevant. The report prepared by Dr Madden was provided.

[96] QBH gave consideration to the material provided by Mr Henegan in response to that report, including the further reports of Dr McMeniman. There was no compelling evidence in those further reports that could have lead QBH to disregard the report of Dr Madden. I am also of the view that QBH was not required to allow Dr McMeniman to inspect its workplace or to facilitate the provision of an assessment by Dr McMeniman in parallel with that of Dr Madden. Dr Madden is QBH’s medical provider and fairness does not require the Company to facilitate reports in opposition to those provided by Dr Madden. If Mr Henegan wished to provide such a report from Dr McMeniman then he could have shown him Dr Madden’s report and asked him to comment on it, before the dismissal meeting.

CONCLUSION

[97] Mr Henegan’s dismissal was not unfair. His application for an unfair dismissal remedy is dismissed and an Order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

C. Newman on behalf of the Applicant.

R. Perry QC instructed by Norton Rose Fulbright on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

November 13, 14.

2014.

Brisbane:

January 6.