| FWC 4252|
|FAIR WORK COMMISSION|
Fair Work Act 2009
West Coast Council
DEPUTY PRESIDENT WELLS
HOBART, 30 JUNE 2016
Application for unfair dismissal remedy – whether valid reason for dismissal – valid concerns about capacity – concerns about inherent requirements – no valid reasons for dismissal – dismissal unfair – remedy – reinstatement to former position
 Mr Rodney Billett (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) following the termination of his employment by West Coast Council (WCC) (ABN 20448787926). The letter of termination, dated 6 November 2015, cited “physical incapacity”1 as the reason for termination and related to Mr Billett’s left ankle.
 The application was unresolved at conciliation and the matter continued to arbitration. At the hearing of this matter, WCC sought and was granted leave to by represented by legal counsel. Ms S Masters of Page Seager Lawyers, appeared for WCC. Mr G Bray of the Australian Services Union (ASU) appeared for the applicant.
 The Applicant sought reinstatement to his former position as Municipal Employee - Town Maintenance Worker at WCC’s Rosebery depot and compensation for lost wages.2
 WCC is a Local Government council situated on the West Coast of Tasmania, with a workforce of 50 employees. It is charged with delivering a wide range of services over five towns and several other smaller populations.3
 Mr Billett, aged 51 years, commenced his employment with WCC on 14 January 2009 at the Rosebery depot. At the time of termination he was employed under the West Coast Council Enterprise Agreement 20134 and classified as a Municipal Employee Level 4C earning $48,594.56 per annum. The position description states a Municipal Employee Town - Maintenance Worker is “responsible for the maintenance and upkeep of Council assets ranging from roads and drainage to parks, gardens and recreation areas… drive work vehicles and machinery… other duties as directed…” and provided for the incumbent to be “physically able to undertake a variety of strenuous labouring tasks.”5
 All of the work undertaken by Mr Billett was conducted out of the Rosebery depot. His tasks were varied and included, but were not limited to, driving trucks and operating machinery, cleaning of toilets, mowing, gardening, brush cutting (sometimes on uneven ground and steep slopes), cleaning kerb gutters and streets, rubbish removal and general maintenance.
 Other than a reprimand under the WCC’s drug and alcohol policy in June 2015, which I will discuss latter, Mr Billett’s employment record with WCC was unblemished.
 In 2006, prior to commencing work with WCC, Mr Billett recreationally injured his left ankle. In December 2011 Mr Billett injured his left ankle while at work with WCC when a truck step gave way and he landed heavily on his foot on the ground. Mr Billett underwent an MRI in January 2012 which revealed bone damage. He spent several weeks in a Controlled Ankle Movement (CAM) boot and returned to work on light duties. In approximately May 2012 Mr Billett returned to pre-injury duties.
 In July of 2015 Mr Billett again injured his left ankle at work, which he described as a “slight ankle sprain.”6 He returned to work two days later on light duties. On 1 September 2015 Mr Billett’s doctor cleared him, in a WorkCover medical certificate, as fit to return to work with a restriction on “prolonged activity on steep incline(s)”.7 As a result of receiving this medical certificate, WCC advised Mr Billett not to return to work and arranged for him to undergo a work assessment on 16 September 2015.
 Mr Billett underwent an assessment with Dr Spearpoint, an occupational and environmental medical practitioner. WWC wrote to Dr Spearpoint on two occasions, those occasions being 14 September 20158 and 16 October 2015,9 setting out a number of questions it required to be answered relating to Mr Billett’s capacity to undertake his duties. Dr Spearpoint provided to WCC a report dated 25 September 201510 and a supplementary report dated 19 October 2015.11
 Dr Spearpoint’s initial report provided the following opinion:
I do not believe that Mr Billett is fit to carry out the inherent requirements of his role in an unrestricted manner. If Mr Billett was to be employed in this role, I would recommend the following restrictions:
● No repetitive squatting or kneeling (this may have further implications for a safe manual handling technique and may require a lifting restriction – please see recommendations).
● To minimise work on steep inclines (an example is that of image 33 and 34 that you have provided).
● No climbing or work at heights.
I would recommend that Mr Billett underwent a general conditioning program for the purposes of weight loss. This will help mitigate the risk of aggravation to the pre-existing degenerative disease of the left ankle.
Mr Billett would benefit from a rigid ankle support on the left ankle to help mitigate risk of aggravation.
Mr Billett should be provided with safe manual handling training, given his restriction with squatting and kneeling. A lifting restriction may be required if Mr Billett is not able to perform a safe manual handling technique.
A risk assessment should be undertaken when operating any vehicle with a seat rating of 120kg or less.
If further clarification of tasks is required an on-site functional assessment with an occupational therapist is recommended.”
 In his supplementary report of 19 October 2015, Dr Spearpoint reinforced his initial opinion and recommendations and also repeated his recommendation that if clarification is required, an onsite functional assessment be carried out. Dr Spearpoint also clarified that the “No climbing or work at heights” restriction which was contained in his initial report, should read “No climbing ladders or work at heights greater than one metre.”12
 Of the specific questions asked by WCC, Dr Spearpoint confirmed that Mr Billett was able to perform all duties and tasks with the exception of “…brush cutting should not be performed on steep inclines”, and that there may be potential concerns with Mr Billett carrying out “potential playground inspections” with squatting and a safe manual handling technique.13 The initial report indicated that there were “concerns” around some other tasks dealing with “General Council maintenance repairs” although no detail was provided.
 Dr Spearpoint further advised:14
“In relation to the images you have provided, there are 24 images [photographs of worksites] in total. Mr Billett would be able to perform all the tasks outlined in the images with the exception of image 33 and 34. These images demonstrate a very steep incline and it would [be] outside of health and safety regulations to have people performing brush cutting on these inclines without some form of restraint. I would recommend that in this instance a verge mover is used.”
 Dr Spearpoint’s diagnosis was “Mr Billett has a degenerative process or osteoarthritis of the left ankle which is a complication of the initial ankle fracture that he sustained in 2006. Mr Billett remains at risk of aggravation of this degenerative process in his current work environment.” He provided that “[f]or Mr Billett to be determined fit to meet the inherent requirements of his role he will require a set of restrictions as outlined above.”15
 On 26 October 2015 Ms Eleanor Strang, Corporate and Strategic Services Coordinator at WCC, wrote to Mr Billett providing copies of Dr Spearpoint’s reports. The letter stated “Dr Spearpoint’s opinion is that it is unsafe for you to perform your duties without permanent restrictions”. Further, the letter provided:16
“[t]he nature of the restrictions means that you are not able to perform your current role. We have looked at whether it is possible for us to modify your role to accommodate the restrictions but because of the nature of the work we need you to do it does not look as though there would be sufficient work that you could perform safely that would be of value to Council.”
 Mr Billett met with the General Manager of WCC, Mr Dirk Dowling, and Corporate and Strategic Services Coordinator and Ms Strang on 30 October 2015 to discuss the letter of 26 October 2015 and Dr Spearpoint’s reports. Mr Aiden Hodge, a workplace union delegate, attended with Mr Billett. The content of this meeting is disputed, as Mr Billett denies he indicated to Mr Dowling that he was not fit to return to his role. It is common ground that Mr Billett disputed Mr Dowling’s interpretation of Dr Spearpoint’s report and sought to maintain employment with WCC.
 On 6 November 2015, Mr Billett and Mr Hodge again attended a meeting with Mr Dowling and Ms Strang where Mr Billett was provided with a letter of termination, reproduced below:17
“Dear Mr Billett
TERMINATION OF EMPLOYMENT – PHYSICAL INCAPACITY
I refer to my meeting with you on 30 October 2015 also attended by Eleanor Strang, Corporate & Strategic Services Coordinator and Aidan Hodge, your ASU Representative.
The purpose of the meeting had been set out in our letter to you dated 26 October and was to discuss Dr Spearpoint’s report (which I have provided to you) and Council’s concerns that due to your limitations it did not appear possible for the Council to continue your employment.
The meeting was an opportunity for you and your ASU representative to respond to the report and our concerns about your ongoing employment.
At the meeting I referred to Dr Spearpoint’s opinion that you were not fit to undertake the duties of the position without restrictions.
You said that you interpreted Dr Spearpoint’s report differently to me but you did not dispute Dr Spearpoint’s opinion that you could only perform a limited number of the duties.
You said that the Council should allow you to just do the limited duties you could perform. You did not identify what you thought these duties were.
I have considered what you have said about allowing you to just do duties within your limitations.
Unfortunately we are not able to provide duties on a regular basis within your restrictions.
Given the size of our Council and workforce most municipal employees need to be able to do whatever work is required at the time.
Most of the work we require involves either:
a) No [sic] repetitive squatting or kneeling;
b) Regular work on steep inclines; and
c) Climbing or work at heights,
which you are permanently restricted from doing.
It is not reasonable for Council to create a role and pay you a salary to do work the Council does not need done. It is also unreasonable for our rate payer’s rates to go towards paying a salary for someone when we do not have enough regular work available that they can safely do.
It is not possible for Council to allow you to continue to do work that would be unsafe.
I have considered whether we could offer you a part time role but again any work we may be able to find for you that complies with your restrictions would not be regular enough for a part time arrangement.
I understand that you have a ticket that would allow you to operate a back hoe. Council does not need an employee who operates a back hoe on a full time or part time basis. The work we require for a back hoe is irregular.
Similarly I could not offer you a role that was limited to mowing for example because there would only be irregular work available doing that task that was not on a steep incline which is outside your restrictions.
All our other machine operator roles that are required are currently filled and I do not anticipate any vacancies in the foreseeable future.
Outcome – Termination of Employment
I have taken time to consider this matter because I know that it is through no fault of your own that you find yourself in this situation and I understand the impact termination of your employment will have.
I have unfortunately decided that I have no option but to terminate your employment.
It is not possible for you to work out your notice period so I will be arranging for you to be given a payment in lieu of your notice period which is 5 weeks wages. The termination will there for [sic] be effective from the date of this letter…”
 Following Mr Billett’s termination on 6 November 2015, WCC advertised on an unspecified date in early December 2015 for a Heavy Plant Operator to join its Civil Works and Town Maintenance Department.
 A witness statement, together with oral evidence was provided by the applicant, Mr Rodney Billett. Witness statements and oral evidence for WCC were provided by Ms Eleanor Strang,18 Corporate and Strategic Services Coordinator and Mr Dirk Dowling,19 General Manager.
 Mr Billett said he did very little squatting and kneeling in his job, using his tools to avoid these movements, and had no issue reaching street signs and similar items at heights due to him being almost 2 metres tall.20 Occasionally he was required to brush cut all day and had prepared his own summary of the percentage of time spent on various tasks.21
 Mr Billett said that he had a good employment record with WCC and that he should not have received a warning for returning a positive drug test whilst at work, as his laboratory test sample had returned a negative result. Ms Strang confirmed issuing a written warning to Mr Billett for returning a positive drug test in May 2015, when the test from the laboratory had indicated a negative result. Ms Strang denied the drug test and warning was a factor in Mr Billett’s dismissal in November 2015.
 Under cross-examination, Mr Billett’s evidence was that Rosebery township is in a valley; whilst duties varied, he usually undertook mowing or backhoe operating in the afternoon; and he agreed that on some days he might be required to do five and a half hours of brush cutting. Mr Billett explained how he carried out his work in cleaning public toilets, garden maintenance (referring to worksite images22 in Rosebery), and gave examples of where he would use the mower to do most of the grass cutting work. He used a device to pick up litter and roadside rubbish. Mr Billett said there was only one set of modern playground equipment in Rosebery and that the inspections for that equipment were no longer carried out by Municipal Employees. Ms Strang’s evidence was that she did not know how often the play equipment in Rosebery required an inspection.23
 Mr Billett confirmed that on occasion there was discomfort with his ankle, but stated this did not prevent him from attending work, aside from the injuries in 2011 and 2015 previously described. Mr Billett disputed that he was at a greater risk than other employees due to his pre-existing injury, stating he had not had to request any further treatment to be carried out on his left ankle. It was Mr Billett’s evidence that he advised Dr Spearpoint that walking on steep inclines was a problem for him.24
 Mr Billett verified that due to there being no apparent pattern of work for municipal employees at Rosebery, the work could be appropriately allocated to all employees to ensure he did not have to undertake work on steep inclines.
 WCC’s witnesses provided evidence that the decision to terminate Mr Billett’s employment was based on medical and legal advice alone and not related to his warning received under the drug and alcohol policy or his imminent qualification for an entitlement to pro-rata long service leave, which was to crystallise on 14 January 2016.
 Ms Strang’s evidence was she knew the Rosebery township well and that she had provided a recommendation to Mr Dowling to terminate Mr Billett’s employment on the basis that he was no longer able or fit to complete the inherent requirements of the position.25
 Ms Strang26 said that the Heavy Machine Operator position, advertised a month after Mr Bilett’s dismissal, also encompassed strenuous labouring tasks and only became vacant following a resignation which occurred after Mr Billett’s termination.27
 Ms Strang confirmed in cross-examination that she had not performed, and did not know how to perform, the strenuous tasks required in Mr Billett’s role.28 Ms Strang also confirmed that the images of steep slopes, referred to by Dr Spearpoint in his report were of the edge of Rosebery Park Oval and that there were areas on Agnes Street, Murchison Street and Clemons Street in Rosebery which contained similar terrain. Ms Strang conceded that Dr Spearpoint had been provided with images of the terrain in Agnes Street and had not raised those sites as a concern in his report.
 Ms Strang conceded that she did not understand the inherent requirements of the role of municipal employee29 although she had an understanding of the tasks carried out by a municipal employee.30
 Ms Strang stated that tasks performed on steep slopes could be allocated to other employees at Rosebery,31 although this was denied by Mr Dowling.
 Ms Strang’s evidence provided that the other images she later relied on as steep terrain that concerned her in relation to Mr Billett’s work, were not identified by Dr Spearpoint as requiring restriction, and that she had not sought clarification from him as to that terrain; that WCC owns a verge mower as recommended by Dr Spearpoint to be used on such terrain; and that she did not make enquiries of the works manager if the verge mower was available for use in Rosebery. 32 Further, Ms Strang confirmed at hearing that brush cutting was still conducted as it always had been on the site recommended by Dr Spearpoint as requiring the use of a verge mower.33 She had not investigated the cost of the purchase of a verge mower for Rosebery.34
 WCC’s concern for the safety of other employees was said, by Ms Strang, to relate to Mr Billett operating machinery. Ms Strang said “that was the interpretation that was made after the report was received”,35 although she conceded that Dr Spearpoint did not raise any issue of Mr Billett operating machinery. Ms Strang said she did not consider any of the recommendations made by Dr Spearpoint to mitigate risk, such as a general conditioning program or manual handling training for Mr Billett.36
 As to the functional on site assessment recommended by Dr Spearpoint, both Ms Strang and Mr Dowling stated they did not seek that assessment as it was deemed too difficult to undertake with the hundreds of possible worksites in Rosebery. Ms Strang accepted at hearing, that given the narrow restrictions recommended, it was reasonable to have the functional assessment done.37
 It was Mr Dowling’s evidence that he relied on the opinion of Ms Strang of Dr Spearpoint’s reports in making the determination that Mr Billett was not fit to undertake the inherent requirements of his role.38 Ms Strang’s evidence was that she provided a recommendation to Mr Dowling to terminate Mr Billett.
 Mr Dowling said that he determined Mr Billett’s restrictions were significant as he understood the requirements of the tasks to be undertaken in that role and relied on the restriction on ladder work; was concerned about Mr Billett working on retaining walls and working in a backhoe although he was unaware of the amount of work Mr Billett might need to undertake with a ladder or retaining walls.39 Mr Dowling said he had undertaken Municipal Employee duties at Queenstown and Zeehan for a day in each town, in what he described as a “rolling program”.40 This involved cleaning toilets, parks and streets, rubbish and green waste collection and pot-holing in Queenstown for several hours.41 Mr Dowling confirmed he had not undertaken any work from the Rosebery depot,42 but that he knew the town of Rosebery well.43 Mr Dowling conceded that Dr Spearpoint had only identified a “degree of risk”44 in his report and not the “high degree of risk”45 determined by him on reading the report.
 Mr Dowling stated he did not see a need to seek further clarification from Dr Spearpoint as to work on steep inclines, or a need to have an on-site functional assessment conducted on Mr Billett. Mr Dowling was not aware WCC owned a verge mower.46
 Mr Dowling conceded that Dr Spearpoint’s report referred to “minimising” work on steep inclines47 and, after being referred to Mr Billett’s position description, also conceded that Mr Billett was fit to undertake a variety of tasks.48 Mr Dowling was unable to state, when considering WCC’s statistics of tasks undertaken by Mr Billett, what percentage of time Mr Billett spent on mowing as opposed to brush cutting, and what percentage of that work was performed on steep inclines.49
 Both Ms Strang and Mr Dowling’s evidence was that they had not taken any action in relation to Dr Spearpoint’s recommendation about employees not carrying out brush cutting work on the steep incline around the Rosebery oval and to utilise a verge mower for this task.
 It was Mr Dowling’s evidence that safety was a number one priority50 and that he took into account the safety of other employees when terminating Mr Billett. He described his consideration as including Mr Billett falling onto a co-worker, falling whilst operating a brush cutter, or experiencing a sharp pain in his ankle whilst mowing, causing him to drive the mower into a co-worker.51
 Mr Dowling believed the recommendations of Dr Spearpoint as to physical conditioning training and manual handling training for Mr Billett to be superfluous as they would have added nothing to the outcome, that being, that Mr Billett could not undertake the inherent requirements of his role.52
 It was Ms Strang’s evidence that she did not take into account Mr Billett’s personal financial circumstances, his ability to find work, his age, or the high unemployment rate on the West Coast of Tasmania, but that Mr Billett was provided with $1,500.00 to assist him with an out-placement service on termination.53
 Mr Billett’s evidence provided that he intended to work with WCC until his retirement at age 67; that he had taken action to find permanent work but had only found casual work as a process operator in mid-December 2015 at the local tin mine near Zeehan, with year to date earnings of $16,352.65 (as at the date of the hearing).54 He said he had been advised that his casual work, backfilling employees whilst they are on leave, would slow down over winter due to employees not taking leave. He said his work was already slowing down at the tin mine as he had already had a full week of no work. Mr Billett also stated that he owns a home, together with his ex-partner in Rosebery and that the cost associated with moving and finding somewhere else to live, such as increased rental costs, would be significant.
 The Applicant contended that the only matters requiring determination are whether there was a valid reason for termination (s.387(a)) and the other matters which the Commission should consider relevant under s.387(h). All other criteria within s.387 were said to be neutral factors. 55
 Mr Bray referred to the oft quoted principles of “valid reason” contained in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran), and asserted the following words in Selvachandran were also relevant in the context of Mr Billett’s dismissal:
“At the same time, the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements for the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and the privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical and common sense way to ensure that the employer and employee are each treated fairly.”
 Mr Bray submitted that when considering that which was established in Selvechandran and the evidence of these proceedings, the WCC did not appropriately consider the privileges, obligations and duties conferred on it to Mr Billett as an employee.56
 Mr Bray relied on the Full Bench in J Boag & Son Pty Ltd v Button  195 IR 292 (J Boag) to establish the principles of inherent requirements of a role. At paragraph  the Full Bench found that “[it] is the substantive position or role of the employee that must be considered and not some modified restricted duties or temporary alternative position that must be considered”. Mr Billett contended that the assessment undertaken of him was based on his substantive role, and he was fit to undertake the inherent requirements of that his substantive role. This was said to be because the position description for Mr Billett’s role required him to be “[p]hysically able to undertake a variety of strenuous labouring task”;57 and that Mr Billett was able to perform a variety of strenuous labouring tasks, although not all of the strenuous labouring tasks. Further, whilst Dr Spearpoint provided a response to whether Mr Billett could perform each and every task as provided to him; that was not the test that should be applied in this matter.58
 The Applicant said it was Mr Dowling’s responsibility to determine whether Mr Billett could undertake the inherent requirements of the role and that Dr Spearpoint’s report was only an opinion which, needed to be taken into account by Mr Dowling.
 Mr Bray asserted that WCC sought to terminate Mr Billett’s employment prior to him establishing an entitlement to pro-rata long service leave on 14 January 2016 and that the evidence of the Respondent on this point should not be accepted by the Commission.
 The Applicant submitted that WCC’s reliance on concerns for the safety of other employees should be viewed in light of Mr Dowling’s evidence59 which was not satisfactory. In addition Mr Bray stressed that Ms Strang’s evidence as to health and safety should be treated with caution due to her admitting that she had did nothing to prevent employees carrying out brush cutting on steep slopes,60 which Dr Spearpoint had identified as a task to be avoided by all employees. Further, the Applicant said that the restriction as provided by Dr Spearpoint “minimising work on steep inclines” is not a restriction and should not have been taken into account due to the nature of safely carrying out that work.
 It was said that Mr Dowling (and Ms Strang) did not adequately understand Mr Billett’s role so as to correctly interpret Dr Spearpoint’s report61 and that it was reasonable that any restricted work could be reallocated to the other employees at Rosebery.
 Mr Bray submitted that Mr Billett was cleared by Dr Spearpoint as capable of operating operational vehicles and that Mr Billett argued this point with Mr Dowling at the meeting on 30 October 2015; that Mr Billett very rarely squatted or kneeled as part of his role.
 Mr Bray argued that due to the lack of investigation into the availability of the verge mower and Mr Dowling’s lack of any knowledge about access to a verge mower, showed the determination about Mr Billett’s incapacity was flawed.
 Mr Bray submitted that a functional assessment should have been carried out, with Ms Strang conceding this at hearing.
 The Applicant provided significant submissions on the authorities relied on by WCC in closing submissions62 and contended that all the circumstances of Mr Billett’s case established there was no valid reason for termination of his employment.
 As to the Commission’s other considerations under s.387(h), Mr Bray asserted that WCC did not, or did not appropriately, take into account harshness criteria such as mitigating risk factors as suggested by Dr Spearpoint, the likelihood of alternative employment, personal circumstances and ability to provide other employment, when considering whether to terminate Mr Billett’s employment.
 Mr Bray relied on evidence of Mr Dowling that he did not take into account the unemployment rate of the West Coast of Tasmania;63 Ms Strang’s evidence that she did not dispute Mr Billett’s financial and personal circumstances;64 the failure of WCC to undertake a proper assessment of Mr Billett’s performance of a machine operator role, to show that WCC’s handling of this matter was harsh in the circumstances or failed to mitigate that harshness.65
 Ms Masters for WCC submitted that Mr Billett is permanently unable to perform the inherent requirements of the role of Municipal Employee without the respondent accommodating unreasonable restrictions. 66
 It was said by Ms Masters that whilst Mr Dowling nor Ms Strang performed the duties of a Municipal Employee, it does not follow that they did not understand the role.67
 Ms Masters asserted that in determining whether an employee can perform the inherent requirements of the substantive role (and not a modified role), the Commission must have regard to whether the role can be performed safely,68 and whether there are potential impacts on the safety and welfare of other employees.
 Ms Masters contended that determining the inherent requirements of a role is a question of fact and that the position description for Mr Billett, when discussing a “variety of tasks”, was only referring to the fact that a municipal employee’s tasks are not well-defined or contained within a list or a set of duties. WCC relied on the timesheets69 to support this proposition and submitted that the variety of tasks established no pattern of work and no certainty of duties that Mr Billett would be required to carry out day to day.
 WCC maintained that the nature of Mr Billett’s role was so varied with so many different work sites, an onsite functional assessment as suggested by Dr Spearpoint, was not capable of being performed.70
 Ms Masters submitted that Mr Billett’s evidence as to the amount of time he spent on certain tasks should be treated with caution, as the timesheets showed there were some days where Mr Billett could not now perform any of the work that he was performing in his role.71
 Ms Masters contended that the evidence confirmed the terrain in Rosebery contained a number of steep slopes and relied on Dr Spearpoint’s assessment that Mr Billett was at risk of aggravating his pre-existing injury should he continue to work as a municipal employee without restriction.72 It was said that the risk had manifested in Mr Billett already aggravating his ankle at work and this pattern was likely to continue if he had stayed in employment.
 Ms Masters maintained that the varied pattern of work at WCC made it harder, not easier, to accommodate restrictions for Mr Billett.
 WCC referred to Mr Dowling’s evidence and contended that there was significant risk to Mr Billett’s safety and potentially the safety of other employees if he continued in employment.73
 Ms Masters submitted there was no evidence to support the proposition that irrelevant factors such as an impending entitlement to pro-rata long service leave, were taken into account when Mr Dowling determined to terminate Mr Billett’s employment.
 Whilst Ms Masters conceded that it appeared there had been a discrepancy or error in process that resulted in a warning being handed to Mr Billett under the WCC drug and alcohol policy, but that this warning had not factored into the determination to dismiss Mr Billett.74 She stated that Mr Billett had been able to obtain other employment shortly after his termination which was a more environmentally stable workplace.75
 Ms Masters made submissions on s.387 of the Act which reflected that Mr Billett was notified of the reason for his dismissal, was given an opportunity to respond and/or refute the medical opinion and was not unreasonably refused representation. It was also submitted that the Applicant had not raised any concerns about the size of WCC, that WCC have a dedicated human resources person and that the evidence of Mr Dowling had advised of a significant financial challenge for WCC.76
 In addressing the criteria under s.387(h), Ms Masters stressed that the dismissal was not harsh; that it was not possible to carry out an onsite functional assessment due to the varying work performed; and that the evidence did not establish that there were other reasons for WCC to terminate Mr Billett’s employment.
 Ms Masters submitted that although a machinery operator position may have been filled casually, this was not a situation where that casual employee could have been terminated fairly in favour of Mr Billett.77 Further, Ms Masters stated that as to the vacant position of Heavy Machinery Operator, that position only became vacant in December 2015.
 Ms Masters stressed that occupational health and safety legislation places an obligation on the employer to manage risk and that that is what it did in terminating Mr Billett’s employment.
 The Applicant submitted there is no evidence to suggest that his previous position or a similar position is not available should the Commission order reinstatement and that in the matter of Smith v Moore Paragon Australia Ltd  AIRC 57, (Smith v Moore) the Full Bench in considering whether to reinstate two employees who had been working on modified duties, had reinstated those employees based on the evidence that they had been performing full-time productive work, albeit on modified duties, for some time prior to their termination.
 In Elizabeth Furneaux v Peninsular Health t/a MEPACS  FWC 5712, a decision where Watson SDP ordered compensation in lieu of reinstatement, Mr Bray asserted that the circumstances of that matter were considerably different to Mr Billett’s circumstances in that Ms Furneaux suffered from a psychological illness, was incapacitated at the time from performing her duties and sick leave was needed for a period after any reinstatement order.78
 Mr Bray submitted that Mr Billett was unfairly dismissed; that it is appropriate he be reinstated to his previous employment; and that previous decisions79 of this Commission had established the principles of ordering reinstatement which cannot be made conditional upon certain events occurring. He asserted that whilst the Applicant did not believe it necessary, the Commission may make a reinstatement order inclusive of mitigating steps to allow the return, with WCC ultimately making the decision whether they put those mitigating steps in place.
 In the alternative, Mr Billett sought to be returned to a position on terms and conditions no less favourable than those on which he was employed immediately before his dismissal. In any event a continuity order should also be provided together with lost pay.
 Should the Commission find it inappropriate to make an order of reinstatement, then it was said that compensation was appropriate, and that such an order would not affect the viability of WCC’s enterprise.80 Mr Bray submitted that Mr Billett would have continued in his employment until his retirement and would have received his long service leave, which was denied him (pro-rata entitlement) when he was unfairly dismissed; that it was likely during the winter months his earnings would reduce; and that he is 51 years of age. Based on the circumstances of this matter, it was submitted that the compensation cap equated to $24,297.48 and this amount should be awarded.
 Should the dismissal be found to be unfair, Ms Masters for WCC, strongly opposed the remedy of reinstatement as there was a substantive risk of Mr Billett aggravating his left ankle if he continued in his role at WCC. Ms Masters argued that Mr Billett’s lost wages as a result of his dismissal were low, due to him undertaking alternative work, relying on calculations set out in written submissions.81 Referring to the decision of Smith v Moore, Ms Masters argued it would be inappropriate to return an employee to employment where further performance would be anything radically different from that undertaken under the agreed terms of the employment contract, or if the reinstatement posed a material future productivity burden or other unreasonable burden on the employer.
 Ms Masters contended that, should the Commission determine that an order for compensation is appropriate pursuant to s.392 of the Act, it should be found that Mr Billett would only have been employed with the WCC for a further four weeks, but possibly up to a further 12 months, due to the degenerative nature of his ankle.82 In turn it was suggested that due to the speculative nature of Mr Billett’s future employment, a 25% contingency discount should be deducted.83
 This unfair dismissal application was made pursuant to s.394 of the Act. It was common ground that Mr Billett was a person protected from unfair dismissal within the meaning s.382 of the Act.
 By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
a) the person has been dismissed; and
b) the dismissal was harsh, unjust or unreasonable; and
c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) the dismissal was not a case of genuine redundancy.
 For the purposes of these matters, Mr Billett was dismissed at the initiative of WCC. WCC is not a small business within the meaning of the Act and Mr Billett’s dismissal was not said to be a genuine redundancy. In determining whether a dismissal was harsh, unjust or unreasonable (s.385(b)), the Commission must consider the criteria set out in s.387. They are:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
 I found the evidence of all witnesses to be reliable, although at times Mr Dowling’s evidence was defensive and obstructive, however I generally accept his evidence. As to the evidence of duties carried out by Mr Billett, I have preferred the evidence of Mr Billett as his is the only first-hand evidence of how he completed his work.
 I have previously set out the arguments of the parties and I do not intend to repeat those in my consideration.
 The term ‘valid reason’ in the context of dismissal is generally considered to mean that the reason is one that is “sound, defensible or well founded” (see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran) Northrop J found (at 373)). In that decision, Northrop J went on to say that “…the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business”. Such a concept embodies the element of fairness in the sense that a valid reason must be defensible and well founded, and that the employer and employee are each treated fairly.84
 In Australian Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1, albeit a decision involving misconduct and under the Workplace Relations Act 1996, a Full Bench of the Commission relevantly concluded at page 14 that:
“On the basis of the foregoing we are of the view that in determining a s.170CE(1)(a) application the Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was ‘harsh, unjust or unreasonable’, provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
justify the dismissal when otherwise it would be harsh, unjust or unreasonable;
render the dismissal harsh, unjust or unreasonable.
Findings made by an inquiry established by the employer will be relevant to the Commission’s determination of the issues before it provided it is established that:
the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
the employer gave the employee every reasonable opportunity to respond to allegations; and
the findings were based upon reasonable grounds.
Whilst such findings are relevant they do not conclusively determine whether the termination was harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that that employee was guilty of the conduct which resulted in termination.”
 Accordingly, in considering whether there was a valid reason for dismissal, the Commission must firstly determine for itself on balance whether Mr Billett was incapable of carrying out the inherent requirements of his role. Issues associated with the safety and welfare of other employees clearly form part of any consideration made by the Commission.
 Considering that approach in this matter, the aspects to be determined as whether Mr Dowling’s appropriately interpreted the opinion, restrictions and recommendations of Dr Spearpoint’s reports; whether, in all the circumstances, the application of those restrictions to Mr Billett in the workplace affected his ability to carry out the inherent requirements of his role, and whether it was reasonable for WCC to incorporate those restrictions.
 It was reasonable for WCC to have legitimate concerns in September 2015 about Mr Billett’s ability to carry out his role and had reason to obtain an assessment from Dr Spearpoint.
 Dr Spearpoint qualified the restriction of working on steep inclines to that terrain evidenced in photographs of the edge of Rosebery Park Oval and applied no other type of restriction, despite having been provided with images of other areas within Rosebery and its town boundary. It was incorrect of Ms Strang and Mr Dowling to conclude that those town boundary areas posed a restriction on Mr Billett’s capacity to carry out brush cutting on those areas.
 Further, it was unreasonable for Mr Dowling to consider the task of brush cutting the edges of Rosebery Park Oval as a restriction, considering Dr Spearpoint had identified that work of that nature was outside of occupation health and safety guidelines and that no employee should be performing this work without fall protection. Prior to considering the capacity of Mr Billett and the inherent requirements of the role, Ms Strang and Mr Dowling should have investigated the availability for a verge mower to carry out that work. Their failure to do so85 is relevant to the consideration of Mr Billett’s capacity to carry out the inherent requirements of his role. I also note that at hearing no reasonable explanation was given by WCC as to why the use of a verge mower had not been investigated or implemented.86
 The evidence of WCC as to the amount of time Mr Billett spent brush cutting on inclines was inconclusive.87 In any event, considering Dr Spearpoint cleared Mr Billett to brush cut on all other terrain such as that shown in other photos provided to him, which included inclines on the town boundary, the percentage of time Mr Billett spent brush cutting is not relevant.
 I am satisfied that the letter of termination provided to Mr Billett on 6 November 2015 misrepresented the restrictions as provided by Dr Spearpoint and did not reflect the inherent requirements of the role as performed by Mr Billett.
 It is evident to me that both Mr Dowling and Ms Strang considered that Mr Billett was not capable of carrying out tasks such as operating machinery, mowing, rubbish collection, cleaning toilets and brush cutting (excluding steep slopes), despite Dr Spearpoint determining that he was fit to carry out all of these duties.
 The decision of Mr Dowling not to conduct an on-site functional assessment, in the circumstances of the determination he had to make about Mr Billett’s termination is, in my view, unsound. I do not accept that the role of Municipal Employee is so nebulous that it is not capable of a functional assessment. If this were the case, then the role would be incapable of a safety assessment for any employee. Such a proposition cannot be countenanced. Had an on-site functional assessment been conducted, as identified by Dr Spearpoint, clarification of how Mr Billett conducted his tasks, and the existence and availability of a verge mower, would have been identified. Given the narrow nature of Mr Billett’s restrictions; that being no climbing of ladders or working at heights over one metre, and no repetitive [my emphasis] squatting and kneeling; a functional assessment could have been accommodated based on the evidence of how Mr Billett carried out his tasks.
 Mr Dowling, in his capacity as employer, owed Mr Billett a fair go all round to show he had the capacity to fulfil the inherent requirements of his role. This could have been accommodated by allowing the on-site assessment. I do not accept Mr Dowling’s evidence that there was no clarification needed as both his evidence and Ms Strang’s evidence showed they misinterpreted the restriction of working a heights to include getting in and out of a backhoe88 – a duty which Dr Spearpoint had clearly deemed Mr Billett as capable of performing.
 I am satisfied the that task of playground equipment inspections is no longer carried out by Municipal Employees as the evidence of Mr Billett was not challenged on that point. Accordingly there is no requirement to carry out this duty.
 I accept that Dr Spearpoint’s report identifies a “risk” of aggravation to Mr Billett’s ankle, should he continue in the role, however those risks are managed and mitigated by Dr Spearpoint’s recommendations and restrictions.
 Whilst the report of Dr Spearpoint stated there was “a risk” of aggravation to Mr Billett’s ankle, risks do and will exist for all employees in all workplaces. It is the management and mitigation of those risks which determine the ability for that work to be undertaken. I am satisfied, as was Dr Spearpoint, that the risk to Mr Billett’s ankle in his workplace could be mitigated, through the restrictions. Even allowing for full consideration of Mr Dowling’s evidence of safety for Mr Billett and other employees, I am not satisfied that those concerns were justified, particularly when considering the recommendations and restrictions provided by Dr Spearpoint. I am of the view that Mr Billett does not pose a risk to himself the health and safety of other employees in the workplace.
 I do not consider that the need to allocate resources, such as the use of a verge mower on steep inclines around the Rosebery township to be an unreasonable burden for WCC. Likewise I would consider it reasonable for the other four Municipal Employees based at Rosebery to be allocated the task of storing equipment or materials with the use of a ladder at the Rosebery depot. There was no other evidence led that indicated an incapacity for Mr Billett to carry out any other tasks.
 Capability to perform the inherent requirements of a role does not mean that the duties and tasks are to be carried out by all employees in the same manner. Training in manual handling techniques may result in a worker performing a labouring task in a different manner to their co-workers or by undertaking the task with another resource. This in itself cannot mean that that employee is not capable of fulfilling the inherent requirements of their role. Similarly, if they are unable to fulfil every function of the role does not mean they are incapable of fulfilling the inherent requirements of the role. All of the circumstances of the case must be considered.
 In (J Boag) the Full Bench said at paragraph :
“It is well established that a valid reason is one which is “sound, defensible or well founded, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariable 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 a 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.”
 I have adopted the approaches taken in both J Boag and Selvechandran. In doing so I note that the inherent requirements being assessed are those of the substantive role and not a modified role. I am satisfied that whilst Dr Spearpoint opined that Mr Billett was not fit to carry out the inherent requirements of his role in an unrestricted manner, Mr Billett’s minor incapacity, as borne out in the evidence, does not preclude him for carrying out his contractual obligations to WCC and the inherent requirements of his role, and therefore does not constitute a valid reason for dismissal.
 Mr Billett was formally notified of the reason for his dismissal.
 I am satisfied Mr Billett was provided an opportunity to respond to the reason relating to his capacity and that he did so on 30 October 2015.
 Mr Billett was not refused the right to have a support person present and this did not affect the dismissal process.
 This criterion is not relevant in this case given the circumstances and basis for the dismissal.
 There were not arguments advanced by either party in relation to these criteria.
 The personal impacts of most terminations of employment are significant, although not always so. Mr Billett has almost seven years employment with WCC. This together with the consideration of whether the dismissal was harsh, that is, disproportionate to all of the given circumstances, including the impact on Mr Billett, are relevant considerations.89
 Whilst this matter deals with circumstances of capacity, rather than conduct, it should be noted that Mr Billett had an unblemished employment record with WCC, particularly when you disregard the written warning provided to him by Ms Strang which, by her own admission, was not provided in accordance with WCC’s drug and alcohol policy.
 Mr Billett is aged 51 years and he had worked for WCC for almost seven years. This coupled with the constricted employment market on the west coast of Tasmania, I am of the view that Mr Billett will find it difficult to obtain full time permanent employment. This is however, only one factor in determining whether a dismissal is unfair.
 Following consideration of each of the criteria specified in s.387, I have concluded that there was no valid reason for the Applicant’s dismissal. I find the dismissal of Mr Billett was unjust and unreasonable and therefore unfair.
 Having determined that Mr Billett’s dismissal was unfair, I must now consider the remedy to be applied. Section 390 describes the circumstances of when a remedy order may be made:
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
 The jurisdictional preconditions in s390(1)(a) and (b) are satisfied and I will now consider whether to order the reinstatement of Mr Billett or, if reinstatement is inappropriate, whether in all the circumstances, it is appropriate to order payment of compensation to him.
 Subsection 390(3) provides the primacy of reinstatement as a remedy for an unfair dismissal with compensation only to be ordered where the FWC considers reinstatement inappropriate. Part 3-2 of the Act, which contains the unfair dismissal provisions, evidences that an object of that Part, at s.381(1)(c), is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.” The question in determining whether to grant reinstatement of an employee who has been unfairly dismissed is whether that is appropriate in the particular case.
 WCC advanced the argument that reinstatement is inappropriate in this matter as there is an ongoing risk of Mr Billett reinjuring his ankle when working as a Municipal Employee. Considering the restrictions recommended by Dr Spearpoint, I am satisfied there would be no more risk to Mr Billett than any other employee of WCC.
 The WCC is a local council operating to provide services to towns and remote locations on the west coast of Tasmania. It has 50 employees and faces financial challenges due to a shrinking ratepayer base, due to residents seeking employment and relocating away from the area.
 Despite this, there was no evidence put to me to suggest that reinstatement of Mr Billett would pose an unreasonable financial hardship on WCC. Also no matters were put to me that indicated reinstatement would result in Mr Billett being surplus to operational requirements. This is clearly a factor which goes to the question of the appropriateness of reinstatement.90 No matters have been brought to my attention that indicated undisclosed serious misconduct which would almost certainly lead to a further termination of the Applicant’s employment.
 In Smith v Moore, albeit under the Workplace Relations Act 1996, the Full bench of Lawler VP, Kaufman SDP and Mansfield C held at paragraph :
“It is well established that a particular termination may be for a valid reason and yet still be harsh, unjust or unreasonable within the meaning of the s 170CE. In the same way, the mere fact that an employee suffers from a level of incapacity that prevents the employee from performing all of the duties associated with the employee’s position does not automatically mean that reinstatement is not appropriate. For example, in Britax Rainsfords Pty Ltd v Jones a Full Bench upheld an order for the reinstatement of an employee with an ongoing incapacity arising from injury but who was fit to perform the light duties she was performing at the time of her dismissal.” (Footnotes omitted)
 I do not consider Mr Billett would be returning to employment that is radically different to that he performed before or would impose a productivity or other unreasonable burden on the employer.
 There was nothing that was put to me that would indicate an irreparable breakdown in the trust and confidence relationship between the employer and the Applicants and I am of the view that it is appropriate to order the Applicants’ reinstatement.
 I have determined that, in all the circumstances, reinstatement of Mr Billett, pursuant to s.391(1) of the Act, to the position he held immediately prior to his dismissal, is appropriate, within 21 days of the order. I have also determined it appropriate to maintain the continuity of Mr Billett’s employment in accordance with s.391(2) and to make an order for lost remuneration, pursuant to s.391(3) and (4).
 Section 391(4) provides:
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment to other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
 The evidence before this Commission is that Mr Billett was paid five weeks in lieu of notice on dismissal. That notice period expired on 11 December 2015. He obtained casual employment at approximately the same time as the expiration of the notice period.
 Mr Billett’s income with WCC was $934.51 gross per week. Since 14 December 2015 to the date of hearing on 6 May 2016, Mr Billett earned $16,352.65 which is an average of $778.70 per week gross (for 21 weeks) a difference of $155.81 per week. For the purposes of determining the amount of lost pay in s.391(4)(a) and (b), I have projected that Mr Billett will continue to receive remuneration in the same capacity as he has since 14 December 2016.
 Accordingly I have determined that for the period from the expiration of the five week notice period until the order for reinstatement (29 weeks), WCC are to pay to Mr Billett, as restoration of lost pay, the sum of $4,518.49 (29 weeks x $155.81); and further that WCC are to pay to Mr Billett, the sum of $467.43 being lost pay from the date of the order to the date of actual reinstatement (3 weeks x $155.81); making a total payment of $4,985.92, pursuant to s.391(4)(a) and (b).
 I am satisfied that Mr Billett’s dismissal was unfair and it is appropriate to order reinstatement, maintenance of employment continuity and for the restoration of lost pay as provided for above.
 I recommend that WCC undertake the recommendations suggested by Dr Spearpoint in his initial report to assist Mr Billett in his employment at the Rosebery depot, noting the decision as to whether Dr Spearpoint’s recommendations are implemented are a matter for WCC.
 An order giving effect to this decision will follow.
Mr G Bray, for the Applicant
Ms S Masters, for the Respondent
6 May 2016
13 May 2016
1 Exhibit A1 – Statement of Rodney Billett, dated 8 February 2016, Attachment RB4
2 Exhibit A5 – Outline of Submissions of the Applicant, paragraph 53
3 Exhibit R5, paragraph 33(b)
4 Agreement ID AE407048
5 Exhibit R4, Witness Statement of Eleanor Strang, dated 29/2/2016, Attachment ‘A’,
6 Exhibit A1, paragraph 12
7 Exhibit A1, paragraph 13 and Attachment ‘RB1’
8 Exhibit R4, Attachment ‘G’
9 Exhibit R4, Attachment ‘I’
10 Exhibit A1, Attachment ‘RB2’
11 Exhibit A1, Attachment ‘RB3’
12 Exhibit A1, Attachment ‘RB3’ page 3
13 Exhibit A1, Attachment ‘RB2’ page 7
14 Exhibit A1, Attachment ‘RB2’ page 8
16 Exhibit R4, Attachment ‘K’
17 Exhibit A1, Attachment ‘RB4’
18 Exhibit R4, Attachment ‘A’
19 Exhibit R5, Witness Statement of Dirk Dowling, dated 29/2/2015
21 Exhibit A3, Applicant’s Summary of Timesheets
22 Exhibit R3
25 PN518 and PN520
26 Exhibit R4, paragraphs 42 and 43
28 PN594 & PN596
31 PN667, PN675
33 PN734 and PN737
40 Exhibit R5, paragraph 10-11
50 PN1519 and Exhibit R5, paragraph 33
52 PN1678 & PN1681
57 Exhibit R5, Witness Statement of Dirk Dowling, dated 29 February 2016, Attachment ‘A’
60 Exhibit R2, images 033 and 034
62 Commencing at PN1859
66 PN1969, PN1972
69 Exhibit R2, Timesheets of Mr Billett
76 Exhibit R7, Respondent’s Written Closing Submissions, pages 7-8
77 Transcript, PN2086
78 Elizabeth Furneaux v Peninsular Health t/a MEPACS  FWC 5712 at 
79 Giuseppeina (Josie) Carisano v Sportsmed SA Hospitals Pty Ltd  FWCFB 1523; Ambulance Victoria v Ms V  FWAFB 1616
81 Exhibit R7, page 14
82 Exhibit R7, paragraphs 56 and 57
83 PN2125-2132 and Exhibit R7, page 14
84 Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR938009, 15 June 2004
88 PN693, PN 696 and PN1368-1369
89 Coal and Allied Mining Services Pty Ltd v Lawler  FCAFC 54
90 See Newtronics Pty Ltd v Salenga, AIRC Full Bench, PR4305
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