Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2016] FWC 840 of Deputy President Bartel at Adelaide on 10 February 2016 in matter number U2015/7090 – Whether valid reason relating to capacity – Test for determining whether a valid reason – Relevance of subsequent assessments – Role of Commission in determining valid reason – Fair Work Act 2009, s.387.

Decision of Vice President Watson and Commissioner Wilson

Introduction

[1] On 24 March 2016 this Full Bench granted Lion Dairy and Drinks Milk Limited (Lion Dairy) permission to appeal against the decision of Deputy President Bartel of 10 February 2016 in an unfair dismissal application made by Peter Norman under s.394 of the Fair Work Act 2009 (the Act). 1

[2] The Deputy President held that Mr Norman had been unfairly dismissed as his dismissal was found to be unjust and unreasonable. The Deputy President ordered that Mr Norman be reinstated to his former position and be paid for remuneration lost by him as a result of his dismissal.

[3] At the hearing of the appeal on 22 June 2016, Ms R. Preston of counsel, with Ms D. Katris, appeared on behalf of Lion Dairy and Mr R. Manuel of counsel, with Mr T. Hardie, appeared on behalf of Mr Norman.

[4] A chronology of relevant events is conveniently recorded in the Deputy President’s decision:

“23 February 2014: Applicant’s accident.

19 February 2015: Employer requests that Dr Graham undertake a medical assessment of the applicant and provide recommendations on his capacity to perform his role.

5 March 2015: Dr Graham examines the applicant.

11 March 2015: Dr Graham’s report (“the initial report”) provided to the employer.

25 March 2015: Meeting with the applicant Mr Draper and Ms Liston. Initial report provided to the applicant. This was to be a show cause meeting, but was adjourned after the applicant presented a certificate from Professor Jaarsma clearing him to return to work on 30 March 2015.

27 March 2015: Employer requests a further report from Dr Graham in light of Professor Jaarsma’s clearance.

30 March 2015: Dr Graham provides a further medical report (“the supplementary report”) to the employer.

1 April 2015: ‘Show cause’ meeting with the applicant, Mr Draper and Ms Pool. The applicant is given a copy of the supplementary report. A ‘show cause’ letter is provided to the applicant, giving him until 7 April 2015 to provide further information.

7 April 2015: Applicant responds to show cause letter.

9 April 2015: Employer requests that the applicant provide permission to speak with Professor Jaarsma.

10 April 2015: Applicant responds to employer request.

15 April 2015: Further meeting attended by the applicant, Mr Gordon, Mr Draper, Ms Liston. Ms Pool attends via telephone conference call. The applicant’s employment is terminated.”

[5] The show cause letter included the following passages:

“Dr Graham advises that at the present time you are unfit to perform all the inherent requirements of the job of a Mechanical Technician (Fitter) and it is not possible to say if you will improve to a level which you can undertake normal duties. He also stated that you mentioned in the assessment that “in reality” you could not complete all jobs required of you as a maintenance fitter.

Dr Graham further advises that you will not be able to work in any safety critical situation where balance and stability are important. Furthermore, you should avoid working in awkward positions, avoid squatting, climbing ladders and frequent use of steps.

Based on the information contained in the medical report from Dr Graham, the company has determined that it cannot make any reasonable modifications which would enable you to perform your role as Mechanical Technician (Fitter). We also acknowledge that you are unable to perform the inherent requirements of your role for the foreseeable future.

Unfortunately, due to the nature and degree of the restrictions, the Company is also unable to find any other suitable positions that meet the conditions outlined by Dr Graham.

Taking into account all the information, the Company is in a position where it considers that it may need to terminate your employment, on the basis that you are no longer able to perform the inherent requirements of your position as Mechanical Technician (Fitter).

We would like to give you the opportunity to think of any solutions or roles that you could perform that meet the restrictions outlined. We also ask if there is any other information which we should take into consideration, before the Company makes a final decision in relation to your employment.

Please provide any information to me in writing or by telephoning me the latest by 7 April 2015. …

Please contact me if you have any questions or concerns.”

[6] The letter of termination issued by Lion Dairy included the following:

“This letter confirms our discussion regarding your fitness to complete your normal duties.

After Lion received advice from Occupational Physician, Dr Graham (report dated 11 and 30 March 2015), that you are unable to perform the inherent requirements of your role, I invited you to provide any alternative work solutions or, if there are no alternative roles, to provide me with reasons why your employment should not be terminated.

In your response letter, you requested to consider the medical certificate from your orthopaedic surgeon, which states a return to work date of 30 March 2015. We asked for your permission to contact your surgeon to discuss this certificate, which you didn’t grant. You also stated in your response letter that you have 32 years of experience as a fitter and understand of (sic) how to conduct your tasks in a safe and productive manner.

Based on the medical information we have been provided, we have determined that unfortunately we cannot make any reasonable modifications which would enable you to perform the inherent requirements of your substantive role. Additionally, we are unable to find, and you have not been able to identify, any other suitable positions that meet your medical restrictions.

Taking all of the above into consideration, Lion has decided to terminate your employment, effective today, on the basis that you are no longer able to perform the inherent requirements of your position.

You will receive any accrued leave entitlements that are payable to you on termination. As you are currently on unpaid leave, your payment in lieu of notice is not applicable.”

Valid Reason

[7] The appeal grounds essentially address the finding of the Deputy President that there was not a valid reason for Mr Norman’s dismissal. The Deputy President commenced a consideration of this issue with the following:

“[58] For a reason to be valid it must relate to the capacity or conduct of the person, including the effect of the person’s capacity or conduct on the safety and welfare of other employees. Capacity relates to an employee’s ability to do the work he or she was employed to undertake.

[59] Whether there was a valid reason to dismiss is a matter not only to be considered but to be accorded some significance in determining if the dismissal is harsh, unjust or unreasonable. 2 The Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss.3

[60] In this matter it is the applicant’s capacity, rather than conduct, that is in issue. The Commission is required to consider and make findings on whether, at the time of dismissal, the applicant was able to perform the inherent requirements of his position based on the medical and other evidence. If not, then consideration is to be given to whether he would be able to fulfil his position at some time in the future and whether reasonable modifications could be made to accommodate any restrictions or limitations that he may have. 4”

[8] The decision goes on to summarise the relevant evidence as follows:

“[61] Dr Graham’s conclusion that the applicant was unable to safely perform the inherent requirements of his position as at the date of examination on 5 March 2015 is not in dispute. The controversy concerns Dr Graham’s assessment of the applicant’s future capacity to perform his role. In making this assessment, Dr Graham said his focus was not on the applicant’s recovery from the injuries he suffered in the accident but on the function of his joints. 5 His opinion was significantly influenced by his diagnosis of degenerative change in the applicant’s knees.6

[62] The available radiology indicates that the applicant has arthritis in three of the four knee joints in his left knee. Regardless of whether the degenerative change is characterised as significant or otherwise, and views may differ on this 7, the CT report states that, “A similar appearance was present on Xrays dated 23 February, at the time of the femoral fractures.” That is, there is no radiology that suggests any further degeneration in the applicant’s knee as a result of his accident. I have also taken into account Professor Jaarma’s evidence that the radiology is not determinative of the level of restriction in the joint and that the level of degenerative changes that the applicant has “… are very similar if not normal for a 50-year-old, 51-year-old manual labourer.”8

[63] The other matter of some weight in Dr Graham’s assessment of the applicant’s future capacity to perform his role was the applicant’s own assessment of his restrictions and ability to return to work.

[64] In response to a question about the likelihood that the applicant would improve at a rate greater than he assessed in his initial report, Dr Graham stated that “Mr Norman said clearly to me that he didn’t think that he could return to this job.” 9 This was a matter of some significance in Dr Graham’s assessment and was cited by the employer in the show cause letter issued to the applicant.

[65] However, when the applicant discussed his limitations and his inability to return to work he was speaking of his situation at the time of the assessment on 5 March 2015. This was the applicant’s evidence and is confirmed in Dr Graham’s notes of his examination of the applicant, which record the applicant’s comments under the heading “At present time”. 10 Dr Graham’s initial report also records that the applicant is confident that he will improve to a point where he can perform his role, albeit that Dr Graham did not share his confidence.

[66] Dr Graham’s assessment was that the applicant was at risk of further exacerbating the degenerative change in his knees if he returned to his position. This is in conflict with his conclusion in the initial report that, “The likelihood of risk of further injury is not great.” Dr Graham’s explanation for this apparent conflict is that the conclusion in the initial report referred to the risk to refracturing his femurs. However this is inconsistent with the stated focus of his assessment. At the time of his assessment on 5 March 2015 the applicant had not been cleared by Professor Jaarsma and Dr Graham did not have any radiology on which to support such a conclusion. Accordingly I do not accept Dr Graham’s oral evidence on this matter.

[67] The terms of the request to Dr Graham for a further report advise him to contact the employer if he needs to see the applicant again. In this context there was no barrier to Dr Graham further examining the applicant. His decision not to do so in light of Professor Jaarsma’s clearance and Dr Graham’s own equivocation in relation to the applicant’s prognosis, is surprising. For example, in the initial report Dr Graham stated that “The prognosis is very difficult to suggest”; and “… it is not possible to say whether [his restrictions or reduced functional capacity] are temporary or permanent”. I am also concerned that Dr Graham’s supplementary report was influenced by his misunderstanding of the applicant’s own views about a return to his position.”

[9] The Deputy President then reached the following conclusions:

“[68] Taking all of the above matters into account, I do not accept Dr Graham’s assessment that the applicant would not be fit to return to his position within three months of the examination on 5 March 2015. This does not however automatically lead to a conclusion that the applicant was fit to perform the inherent requirements of his position at the point of dismissal.

[69] In reaching a view as to the applicant’s capacity when he was dismissed I prefer the evidence of Professor Jaarsma to that of Dr Graham where there is a conflict. I have relied upon Professor Jaarsma’s evidence that:

• The applicant had not achieved his pre-injury level of capacity as at 25 March 2015 but that this is rarely achieved where there has been serious injury and an extended absence from work and that, at best, a recovery to 95% - 98% is achievable.



• The degenerative change in the applicant’s left knee was not a barrier to performing his role as maintenance technician;



• The applicant’s femurs had sufficiently healed so that he was not at risk of further injury;



• There was no barrier to the applicant returning to work;



• It was up to the employer and occupational physician to determine how the applicant could be fully integrated into his position.




[70] Accordingly I find that the restrictions suffered by the applicant when assessed by Dr Graham on 5 March 2015 were predominantly connected to the trauma he suffered and the healing process. The applicant could, and I find that he did continue to improve after this date.

[71] In J Boag and Son Brewing v Button (Boag) 11 the worker had permanent restrictions and was unable to fulfil the inherent requirements of his original position. The employer had arranged for other workers to assist Mr Boag in his role over a period of many months. It was held at first instance that Mr Boag performed the inherent requirements of his position as it had been modified by the employer when it made available the assistance of the other workers. On appeal the Full Bench held that it is the substantive role and not any modified, restricted duties or temporary alternative position that must be considered.12

[72] The applicant may have had some residual difficulty with squatting but he was not unable to squat or assume awkward positions, nor was he at risk if he did so. He may well have benefitted from a gradual integration to full duties having regard to the fact that he had suffered a serious trauma and been absent from the workplace for over 12 months. In the circumstances of this case it would be wrong to conclude that, because the applicant may potentially benefit from a reintegration program, he was unable to perform all the inherent requirements of his position. I am satisfied that the applicant could perform the requirements of his position and accordingly there was no valid reason for dismissal.”

[10] The first issue that arises from this analysis is whether the Deputy President properly applied the test for establishing the existence of a valid reason for termination. It has long been established that the decision of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 13 establishes the applicable formulation of the test for a valid reason. Although the case was decided under a different legislative scheme, whereby the existence of a valid reason was a statutory requirement, the test has been consistently applied to the current legislative formulation in which the existence of a valid reason is one, albeit important, consideration in determining whether a dismissal is harsh, unjust or unreasonable. A further difference in the legislative regime is the introduction of the legislative object of ensuring that a “fair go all round” is accorded to both the employer and employee concerned. As Gray J said in Fryar v Systems Services Pty Ltd14, under the previous legislation “the realm of a ‘fair go all round’ …is not a realm that (the Industrial Relations) Court inhabits. The provisions (of the former) Act are not directed to achieving some balance between the interests of employers and employees in particular cases. They constitute a charter of rights for employees.”

[11] Noting these important differences, and the adoption of the Selvachandran test under subsequent legislative provisions, it is important to consider precisely what was said in that case and the way in which it has been adopted and applied. The formulation by Northrop J followed a history of different approaches being adopted by the Industrial Relations Court in first instance decisions. Ultimately an approach which adopted a wider interpretation of the meaning of ‘valid reason’ were overruled by Full Court decisions applying Northrop J’s reasoning. Northrop J said:

“In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). 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 of 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 privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee.”

[12] Northrop J’s formulation was adopted in subsequent Full Court decisions. A useful summary of the scope of the phrase is given by a Full Court in Qantas Airways Limited v Cornwall 15. The Full Court said:

“The meaning to be attributed to s 170DE(1) came up for consideration by a Full Court of this Court in Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127. The case was concerned with a dismissal based on the operational requirements of the employer. In that context, Northrop J said (at 137):

"To be a valid reason, the reason must be lawful in the sense of not being prohibited, and genuinely must be based on those operational requirements. The word `valid' is used as an adjective qualifying the word `reason' and is used in the sense of sound, defensible or well-founded with respect to the foundation, namely, the operational requirements of the employer."

Section 170DE(1) being derived from Article 4 of the Convention, the provision in Articles 8 and 9 for justification of the termination, which, in the context of the Convention, would have to be by reference to Article 4, confirms the interpretation adopted by Northrop J of "valid reason" as one that is sound, defensible or well-founded with respect to the foundation, whether operational requirements, capacity or conduct, established in the particular instance. His Honour went on to make it clear (at 144) that the "court should not, under the guise of `valid reason', have ... regard to matters affecting the employee which previously would have come within the harsh, unjust or unreasonable provisions of the invalid s 170DE(2)". In their joint judgment, Lindgren and Lehane JJ expressed substantial agreement with the reasons of Northrop J. They commented (at 151) on the decision of the High Court in Victoria v The Commonwealth as follows:

"Of particular importance for present purposes is the statement that that which is `harsh, unjust or unreasonable' is not a subset of the characteristics of a reason which render it not `valid'. Thus, if a termination for a reason based on one of the two matters referred to in s 170DE(1) operates, in relation to the employee concerned, in a way that is `harsh, unjust or unreasonable' it does not follow that the reason is not `valid'. A fortiori, a reason for termination, connected with or based on one of the two permitted matters, may be valid even if the termination, though perhaps falling short of being harsh, unjust or unreasonable, may be regarded as unfair. In other words, fairness, reasonableness or justice, as regards the employee, is not the realm of discourse with which `valid' is concerned. No doubt a recognition of that, or at least a fear that it might be so, explains the wish of the parliament to enact s 170DE(2)."

Their Honours continued (at 151-152):

"In our view, `valid' in the Convention context is at least primarily to be regarded as providing a compendious way of excluding those reasons which, under Arts 5 and 6, are not valid. In the statutory context with which we are concerned, the primary work of `valid' is to exclude the reasons listed in s 170DF(1). If there are other reasons for which an employer may not lawfully dismiss an employee, then equally, no doubt, such a reason will not be a `valid' reason. Additionally, perhaps, the word `valid' may serve to emphasise that the reason must be genuinely connected with the employee's capacity or conduct or genuinely based on operational requirements. In our view, both the context and the decision of the High Court in Victoria v Commonwealth require the conclusion that it has no wider operation."

Immediately after this passage, their Honours continued by expressing agreement with Northrop J that certain first instance decisions, "to the extent that [they] hold that the word `valid' should be given a wider meaning, ... should be overruled". The wider meaning suggested in each of the cases referred to was one that embraced considerations going to the question whether the decision was fair, reasonable or just from the point of view of the employee.

The propositions we have extracted from Cosco Holdings were not mere dicta; they express the considerations on the basis of which the appeal in that case was unanimously allowed. Nor do they represent a narrow or artificial construction of s 170DE(1). They reflect the reasoning of the High Court in Victoria v The Commonwealth and the actual language of the provision and of the convention it implements, language which turns on the existence or otherwise of a "valid reason" connected with or based on the matters specified. It was suggested in argument in the present appeal that the view taken in Cosco Holdings gave no weight to the meaning of the word "valid". We think the passages we have quoted are sufficient to demonstrate that this is not so. The judgments in Cosco Holdings, following the majority of the High Court in Victoria v The Commonwealth, simply draw attention to what it is that must be valid. Indeed, Northrop J says (at 145), following the High Court, that the word is "the cornerstone of the Act". But the section requires the employer's reason to be valid, and thereby focuses upon the employer and the basis of his decision, rather than upon its consequences for the employee. What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer. In a case, such as the present, where conduct is relied on, that will entail a consideration of the nature of the conduct in the full context in which it actually occurred. But it will not, according to the decision in Cosco Holdings (and see also Evans v Alto Parts Pty Limited (1998) 77 IR 401 at 404), entail reference to factors personal to the employee, bearing on the nature or extent of the hardship caused by the dismissal. In this, too, Cosco Holdings was following the High Court, the majority of which, in a passage we have quoted, condemned the "harsh, unjust or unreasonable" criterion just because it "goes not to the reason for termination but to the overall effects of the termination", and thereby "does not implement the terms of the Convention".”

[13] Under the current legislative regime it is trite to observe that s.387 requires the Commission to consider each of the matters referred to in paragraphs (a) to (h). Each must be treated as matters of significance in the decision making process insofar as each is relevant to the factual circumstances of the particular case. In the context of a termination related to the conduct of an employee, a Full Bench, relying on a decision of the Federal Court, has expressed the task as follows (in King v Freshmore (Vic) Pty Ltd): 16

“[21] In circumstances where the termination related to the conduct of the employee - as is the case in relation to Mr King - the Commission must make findings in respect of the following matters:

• whether there was a valid reason for the termination (s.170CG(3)(a));



• whether the employee was notified of that reason (s.170CG(3)(b)); and



• whether the employee was given an opportunity to respond to that reason (s.170CG(3)(c)).




[22] Paragraph 170CG(3)(a) relevantly speaks of "whether there was a valid reason . . . related to the . . . conduct of the employee." In Edwards v Giudice, Moore J made the following observations about the Commission's obligations under this paragraph:

"The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason." 17

[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 18”

[14] In the context of capacity, a Full Court of the Federal Court was called upon to consider the approach to determining whether a valid reason exists in Crozier v Australian Industrial Relations Commission. 19 The Court said:

“The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that "the main focus of his position was to generate new business"; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative (at 150 & 152-153). In making these findings it acted within jurisdiction, and we detect no jurisdictional error in its approach.”

[15] A number of Full Benches of the Commission and its predecessor have considered the approach to considering whether a valid reason relating to capacity exists in a given case. In Dundovich v P&O Ports 20 a Full Bench was not satisfied that there was a valid reason for termination because the employee, who was absent on workers compensation, was not assisted enough to return to work. The Full Bench said that the employer acted too quickly in moving to terminate and was not persuaded by the reasons advanced by the employer as to why it acted when it did.

[16] Other cases have considered the question when there was conflicting medical evidence. Senior Deputy President Cartwright in Ermilov v Qantas Flight Catering Limited 21 said the following:

“[29] In my view there was a valid reason for the termination related to the capacity of the Applicant (s.170CG(3)(a)). That reason was that the Applicant was assessed unable to perform the duties of his contracted position as an ASO Level 2 and the Respondent was not able to create a new role for him.

[30] Under the NSW Workplace Injury Management and Workers Compensation Act 1998, an employer liable to pay compensation to an injured worker is obliged to provide "suitable employment", unless it "is not reasonably practicable." 22 "Suitable employment" is defined as "work for which the worker is suited, having regard to..." a number of factors, including (among others) the nature of the worker's incapacity and pre-injury employment, and the details in the medical certificate supplied by the worker. When Allianz denied workers compensation liability in respect of the Applicant's third injury (which the Applicant did not contest), the Respondent was no longer obliged to provide the Applicant "suitable duties". It applied a policy that ASO Level 2 employees are required to perform all the duties of the role and that the Applicant was to be capable to rotate through the various tasks within all sections of the Wash Department. I am satisfied that this was a reasonable policy in deciding how to run its business and no argument has been put that the Respondent was precluded from making such a decision. Rather, the Respondent was faced with an apparent conflict in the medical opinion about whether the Applicant could perform the duties of the role.

[31] As a result of the inconsistency between the medical information and responses of the Applicant's doctors, Mr Sharratt preferred the reports of Dr Ng and Ms Martin. He gave evidence that, having the information of the Applicant's doctors, Allianz, WorkFocus and Dr Ng, he had to "consider all of the information that was put in front of me and make a considered opinion based on all the information." 23 When asked about Dr Kuzmanovski's response, Mr Sharratt said that Dr Kuzmanovski dismissed the WorkFocus report and "failed to comment on the nature of the work that was required" which was the focus of QFCL's concerns.24 Given the medical and occupational therapist's reports and the fact that the Applicant had sustained a third injury to his lower back whilst performing work in the ASO Level 2 position in the context of the determination from the District Court of NSW of a 26% impairment to the Applicant's lower back, Mr Sharratt determined with Ms Stephens that the Applicant's employment was to be terminated.25

[32] The Applicant argued that the Respondent should have preferred the later opinions of the Applicant's treating doctors, Dr Kuzmanovski and Dr Loefler. The Applicant also argued that the Respondent should have found suitable duties for him or that he should have been given a trial to demonstrate his capacity to work. In my view, it was reasonable for the Respondent to have concerns about the Applicant's capacity to do the full duties of an ASO Level 2 in the Wash Department and to resolve the apparent conflict in medical opinion in the manner it did. Dr Loefler's assessment was contained in a single medical certificate and the brief report made available on 31 July, while Dr Kuzmanovski's response on 29 July 2003 was, in my view, difficult to prefer over Dr Ng's reports. It was argumentative and did not address the content of the WorkFocus report to which QFCL sought a response or comment on the nature of the work. In the light of all the reports, the Respondent did not believe that a trial was appropriate to determine whether the Applicant was physically able to perform the work. 26 On the basis of Ms Martin's reports, it determined it had no other role which matched the Applicant's capacity. In the circumstances of this case, it cannot be said that the reason for termination of the Applicant's employment was capricious, fanciful, spiteful or prejudicial. In my view, it was sound, defensible or well founded.27 That view is not changed with the benefit of the additional evidence available to the Commission from the medical practitioners called in this case.28 I find that there was a valid reason for the termination related to the capacity of the Applicant.”

[17] An appeal against His Honour’s decision was unsuccessful. The Full Bench concluded: 29

“[40] In an appeal against the exercise of a discretion the question is whether the decision is materially affected by error. Grounds 2 to 6 each allege that the decision was made in error by reason of the fact that the Commission failed to make a particular finding either about the nature of the appellant's job or about the appellant's ability to perform the job. We find these grounds less than compelling.

[41] The Senior Deputy President had evidence before him regarding the nature of the duties the appellant was expected to perform as well as his capacity to perform them. The Senior Deputy President heard evidence from a number of doctors, much of it conflicting and some of it inconsistent, consultants and company officers. He decided that there was a valid reason for the termination of the appellant's employment based on his incapacity to do the job required of him. He found that the respondent's policy of rotating all of the employees in the wash department through the various tasks in all of the sections of the department was a reasonable one and that the appellant was not able to do all of those tasks. Notwithstanding the submission on appeal, those findings are adequately supported by the evidence to which we were referred by Ms Mckenzie. Nothing put to us in relation to grounds 2 to 6 raises a sufficiently arguable case of error in the decision.”

[18] In the case of Ms V v Ambulance Victoria, Commissioner Smith (as he then was) decided that there was not a valid reason for termination based on capacity. He said: 30

“[40] I turn firstly to consider 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).

[41] The termination of employment related directly to the capacity of Ms V. Ambulance Victoria reached the conclusion that Ms V could not perform the inherent requirements of her role and that her ongoing condition is unlikely to imminently resolve.

[42] This conclusion was said to be based upon the medical evidence. This is not the state of the medical evidence, as it is less certain than that stated by Ambulance Victoria. Whilst Dr McDonough was concerned about a continuing ‘poor mental state’ his conclusion was that a slow, partial return to some duties may be possible. Dr McDonough was of the view that Ms V was not fit to return to full operational duties without restrictions. Those restrictions related to right knee arthritis and the potential for additional stressful workplace situations overwhelming her. The findings of Associate Professor Mendelson are more positive. He concluded that Ms V should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. He further stated that there was no indication of any diagnosable mental disorder. However Associate Professor Mendelson did express some caution as to whether or not she would be particularly sensitive or vulnerable to the usual stressors working as an ambulance paramedic.

[43] This has been a difficult matter for all concerned. I have no doubt that Ambulance Victoria seeks to make the right decision to protect its employees and the public it serves.

[44] However I have not been persuaded that there was a valid reason for the termination of Ms V.

[45] I do so for these reasons:

• There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners;



• There is no finding by the independent medical practitioners that any concerns they expressed will not imminently resolve;



• Ms V has on several occasions, since her accident, returned to operational work without incident; and



• The reason she was suspended from duty (the use of methadone) and from which she didn’t immediately seek to return, was not finally found by Dr Gijbers (sic) as an inhibiting factor to the normal performance of her duties.”

[19] The decision was upheld on appeal. The Full Bench said: 31

“[16] Having regard to the reasons of Commissioner Smith in relation to the medical evidence, read as a whole, we are not persuaded that his conclusion that “There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners” can be characterised as the application by him of an erroneous test in determining whether there was a valid reason for the termination.

[17] It is evident from the Commissioner’s reasons, read as a whole, that the issue arising out of the medical evidence was whether the evidence supported a finding that the respondent could not perform the inherent requirements of her role. He assessed the medical evidence, noting that one specialist was concerned about a continuing “poor mental state”, whilst the other found that that there was no indication of any diagnosable mental disorder. He noted that whilst one found that the respondent was not fit to return to full operational duties without restrictions but that a slow, partial return to some duties may be possible, the other concluded that the respondent should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. Having assessed the medical evidence, the Commissioner was not persuaded that it supported a finding that there was a valid reason for the termination for a number of reasons stated 32 and having regard to the processes which the appellant implemented for managing the resumption of normal operational duties of an employee returning to work after an extended absence. The finding challenged by the appellant is one of the conclusions drawn from the evidence by the Commissioner which supported his finding that there was no valid reason for the termination, rather than a separate and determinative test.”

[20] In J Boag and Son Brewing Pty Ltd v Button a Full Bench said: 33

“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, 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.

[23] In X v Commonwealth 34 the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:35

“[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU 36 a Full Bench noted:

“[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

"A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with." [ibid. at 295]”

[25] In Qantas Airways Ltd v Christie 37 Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”38 Her Honour noted:39

“[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character.

[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”

[26] Gaudron J also noted 40 that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.

[27] McHugh J drew attention to the distinction between an employee’s job and their position: 41

“[72] In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job"[66]. A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.

[73] In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between "a particular position" and "a particular job". In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the "job" of President if that term refers to the work done by the President.”

[28] McHugh J endorsed the proposition that “whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.”

[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. 42 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.43 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.44 But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.45

[21] In the case of Jetstar Airways Pty Limited v Neetson-Lemkes a Full Bench described the test as follows: 46

“[44] It is only necessary for us to consider the first of these appeal submissions. Section 387 of the Act requires the Commission, when considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of specified matters. The first matter is as follows:

“(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);”

[45] The requirement to take this matter into account means that not only must it be considered but it must be treated as a matter of significance in the process of deciding whether the dismissal was unfair. 47 In this matter, as earlier stated, the reason for the dismissal relied upon by Jetstar was a capacity based one, namely that Ms Neeteson-Lemkes was unable to perform the inherent requirements of her safety critical role then or in the future, and that there were no reasonable adjustments which could be made to allow her to perform that role. Section 387(a) therefore required the Commissioner to consider and make findings as to whether, at the time of the dismissal, Ms Neeteson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her and, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her. Those findings then need to be considered and treated as matters of significance in the process of deciding whether Ms Neeteson-Lemkes’s dismissal was, to use the general rubric, unfair.”

[22] After allowing the appeal and in the course of re-determination the Full Bench said:

“[55] …On one view, those post-dismissal expert opinions, if accepted, would demonstrate that at the time of the dismissal Ms Neeteson-Lemkes did have a future capacity to return to her full role, and to that extent Jetstar did not have a valid reason to dismiss her based upon a prediction otherwise. However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. 48 ….Applying this principle, we do not consider it permissible to take into account the expert opinions to which we have referred in assessing the validity of Jetstar’s reason for dismissal because they were clearly founded upon a factual situation which came into existence well after the date of Ms Neeteson-Lemkes’s dismissal, namely her state of health at the time she was assessed. The validity of that part of Jetstar’s reason for dismissal which concerned her future capacity to perform her duties must be assessed by reference to her state of health, and the expert opinions expressed as to her state of health, as they were at the time of her dismissal.

[56] The evidence does not demonstrate that any health professional had positively expressed the view that Ms Neeteson-Lemkes, based upon her state of health at or before the dismissal, would be able to return to full duties at a future time. Dr Walker’s view, to which we have earlier referred, was that she was permanently incapable of returning to her full duties. His opinion was of course contested at the hearing, but even those practitioners who took a contrary view concerning Ms Neeteson-Lemkes’s diagnosis and prognosis had not at the time of dismissal advanced the position that, based on her state of health at that time, she would be able to perform her full role at some future time. As earlier stated, the “Psychological/Counselling Management Plan” prepared by Mr McKinley in about February 2013 49, shortly after the dismissal, stated that in his opinion Ms Neeteson-Lemkes would not have the capacity to return to “pre-injury activity”, although of course by the time of the hearing before the Commissioner he had changed his opinion based upon a later assessment of Ms Neeteson-Lemkes. Dr Saunders had recommended a return to work based on restricted hours, with “gradual increase in hours when certified”, but never gave a positive prognosis for a full return to work prior to the dismissal. Dr Farago did not see Ms Neeteson-Lemkes between 2011 and 2013, and Mr Cohen did not see her before 2013. Therefore it can at least be said that Jetstar’s view at the time of dismissal that Ms Neeteson-Lemkes would not be able to return to work her full duties as a Jetstar flight attendant was not contrary to any medical opinion in existence at or about that time.

[57] The evidence did not identify that there was any reasonable modification to the role of a full-time flight attendant that could be made to facilitate Ms Neeteson-Lemkes’s return to that role. It was the emergency and safety-critical aspects of that role which were of most concern given Ms Neeteson-Lemkes’s work and medical history, and there was no suggestion that any modification in that area was possible.

[58] Therefore we are satisfied that Jetstar had a valid reason for the dismissal of Ms Neeteson-Lemkes based upon the medical advice it had received or which existed at the time of the dismissal. We note that in J Boag and Son Brewing Pty Ltd, the Full Bench said: 50

“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.”

[59] That proposition was not expressed as a hard and fast rule for every case, because as the Full Bench went on to acknowledge there may be particular facts in particular cases which dictate a different conclusion. The nature of the unfair dismissal jurisdiction is such that it is generally not appropriate to try to express binding rules about what conclusions should be reached in respect of the s.387 matters in relation to generalised factual scenarios. That having been said, we consider that the Full Bench’s proposition in J Boag and Son Brewing Pty Ltd can reasonably be applied to the facts of this case.”

[23] Jetstar took into account that, in some cases of an employee’s capacity, it is appropriate to consider the matter of whether reasonable adjustments can be made to a role in order to accommodate an employee. The question of “reasonable adjustments” or “reasonable accomodations” stems, of course, from workers compensation and anti-discrimination jurisdictions. In unfair dismissal matters the questions for consideration by the tribunal are those set out in s.387. The matter of reasonable adjustments or accomodations may be a part of such considerations, but do not replace those questions. In Jetstar, the Full Bench not only applied the principle within J Boag and Son Brewing Pty Ltd 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, but held consideration of any adjustments to be within that constraint:

“[53] We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.”

[24] Such position is consistent with that articulated within Qantas v Christie, in which the question is posed; would the position be essentially the same if a requirement were dispensed with?

[25] It is possible to extract the following principles from the above cases:

• Capacity cases based on medical opinions are different to misconduct cases. In capacity cases the employer is usually required to have regard to an expert opinion or opinions – not to make an independent assessment of what is essentially a medical question. In misconduct cases, an employer is required to make a finding of whether the employee engaged in the conduct concerned.



• In an unfair dismissal case the relevant factual matrix must be considered by the Commission. In a case where the reason for dismissal is misconduct the Commission must consider whether the conduct occurred based on the evidence before the Commission. In a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss.



• The existence of a valid reason for termination based on capacity depends on whether the reason was sound, defensible and well founded – and not capricious, fanciful, spiteful or prejudiced - considered in the context of the object of ensuring a ‘fair go all round’.



• It is appropriate to have regard to medical assessments that relate to the capacity to perform the full duties of the position.



• It is also appropriate to have regard to whether reasonable adjustments may be made to a person’s role in order to accommodate any current or future incapacity. However such consideration of what may be reasonable adjustments will be within the context of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.



• The absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity.



• A decision based on the existence of a medical opinion that an employee cannot perform the inherent requirements of a job is suggestive of a valid reason because such a decision is sound, defensible and well founded.

[26] Consideration of English authorities in unfair dismissal cases should be treated with caution because of some differences in the legislation and a divergence of approach in assessing the reasonableness of a reason for dismissal. However, in the context of capacity issues and the proper role of the tribunal, there is a distinct commonality in approach. In Viridor Waste v Edge, 51 a case concerning capacity, Langstaff J said:

“24. In determining claims of unfair dismissal, the statutory focus of the Tribunal is required to be on the reasoning of the employer.  Where the Tribunal is satisfied that the employer’s belief in the culpability of an employee is genuine the question is then not whether on all the information available to the Tribunal at the time of the hearing that belief had reasonable grounds to support it, but whether the material which was before the employer at the time of its decision was such as to provide a reasonable basis for the belief.  The difference between the two is that the former is capable of taking into account information which the employer did not have.  If the employer’s investigation of what had taken place was reasonable, its belief cannot be assessed on the basis of information which might have come to light if only a wider and more far reaching investigation had been undertaken.  It has to be judged on the material the employer actually had.  It is necessary for a Tribunal to base its decision clearly on that material.  Mr Crosfill is right in his submission that in paragraph 29 of the Reasons here, however, there is no reference to the particular information which was before Mr Newman of Viridor, who took the relevant decisions. 
 
25. The next question for a Tribunal, having identified the material which was considered by the employer in reaching its view, is not what conclusion it would have formed from the information, but whether that information taken as a whole reasonably supported the conclusion to which the employer actually came.  If a Tribunal asks what it would have decided, given the information, it is in danger of substituting its own decision for that of the employer.  Though substitution arguments are all too easily asserted, and it must always be borne in mind that a Tribunal’s task is to make an assessment overall as to whether a dismissal is or is not reasonable – and if it comes to the latter view it will plainly be reaching a decision different from that of the employer – its task is always to assess the employer’s decision, and not to make its own other than by way of commentary upon the employer’s reasoning.  The danger of leaving out of account any specific reference to the material upon which the Respondent actually based its view is that a Tribunal then examines all the material for itself and is drawn into reaching its own opinion not as to what was permissible on the basis of that material, but what it would itself conclude on all the material now available to it.”

[27] The Deputy President’s decision in this matter reveals two significant errors. First, while professing to apply the test formulated in Selvachandran, we do not believe that the test was properly applied. The approach of the Deputy President was to hear evidence from the two doctors and on the basis of their evidence, form a view as to which doctor’s view was preferred. The determination of whether a reason is sound, defensible and well founded, is not a standard of perfection, and does not require the Commission to agree with the reason based on subsequent assessments. To assess the evidence well after the event, and have regard to circumstances and opinions expressed after the termination raises the bar well above the Selvachandran test and pays regard to circumstances that were irrelevant to the assessment of the reason for termination. In other jurisdictions, courts and tribunals need to determine whether an employee can perform the inherent requirements of a job. The task in this case was to determine whether there was a valid reason for the dismissal – whether the employer’s reason was sound, defensible and well-founded.

[28] In our view, this error was compounded by the Deputy President’s treatment of the evidence. Professor Jaarsma was Mr Norman’s treating surgeon. His advice related to Mr Norman’s recovery from the injury he sustained and the surgery performed. He is not an occupational physician. He made no occupational assessment of Mr Norman. He was not given a copy of the job description and paid no regard to the job requirements set out therein. The focus of his report was the risk to Mr Norman’s femurs – which were broken in Mr Norman’s sky diving accident.

[29] Dr Graham, an independent occupational physician was provided with details of the job requirements. He was asked whether, in his assessment, Mr Norman could perform the inherent requirements of the role. Based on an assessment of his overall physical restrictions he said that Mr Norman should “not work in any safety critical situation where balance and stability are important. He should avoid working in awkward positions and avoid squatting. I would also recommend that he avoid climbing ladders and avoid frequent use of steps or stairs.” His assessment provided to the employer prior to the dismissal was that it is unlikely that Mr Norman will be able to perform the inherent requirements of the role in the near future.

[30] After Mr Norman produced a medical certificate from Professor Jaarsma approximately three weeks later, Lion Dairy requested that Dr Graham review his opinion. Dr Graham confirmed his view and assumed that the medical certificate related to recovery from the injury, not the different question of ability to perform the inherent requirements of the job. His assumption was correct. The only medical professional that assessed Mr Norman’s overall capacity in relation to the job requirements of his role was Dr Graham.

[31] Mr Norman was employed by Lion Dairy as a maintenance fitter. In that capacity he was required to

(a) work a three week shift pattern, which involved working morning shifts for one week and afternoon shifts for the remaining two weeks. For the morning shifts, Mr Norman was required to begin work at 6.00 am and provide the site with a 'health check' (which basically required him to ensure the plant started up properly). For the afternoon shifts, Mr Norman began with a handover from the Maintenance Fitter who performed the morning shift and was required to ensure the plant was running, and subsequently shut down, properly;

(b) undertake preventative maintenance tasks, which included valve maintenance, machine servicing, oil change, trade waste plant maintenance, processing area maintenance (which involved maintaining separators, homogenisers and milk processing machines),maintenance of filling and packing machines, as well as the robot in the cold room;

(c) undertake targeted preventative maintenance on 'Maintenance Day';

(d) perform unplanned tasks (for example, when something breaks or fails);

(e) work in confined spaces (for example, inside vessels, tanks or silos); and

(f) undertake manual handling tasks, including lifting equipment up and down stairs.

[32] On any given day there is one maintenance fitter and one electrician maintaining the Salisbury plant (except for Maintenance day when there are two of each).

[33] The Deputy President’s reasoning is set out above. The Deputy President rejected the evidence of Dr Graham that Mr Norman would not be fit to return to work within 3 months of 5 March 2015. As to the ability to perform the inherent requirements of the job the Deputy President preferred the evidence of Professor Jaarsma. The Deputy President indicated the evidence of Professor Jaarsma that she relied upon. However Professor Jaarsma did not give evidence of any reliable kind on Mr Norman’s ability to perform the inherent requirements of the role. His opinion was confined to the recovery from the injury he treated. Dr Graham’s opinion related primarily to a separate degenerative condition.

[34] The errors in the assessment of the evidence highlight the perils of the overall approach of the Deputy President. In cases such as the present, the Commission is not in a position to make an expert medical assessment. An employer is entitled, and expected, to rely on expert assessments. If there is some apparent conflict in medical opinions it will usually be incumbent on the employer to resolve that conflict. In this case the employer asked the occupational physician, Dr Graham, to conduct a reassessment with the benefit of Professor Jaarsma’s medical certificate. Dr Graham confirmed his view that Mr Norman is unlikely to be able to perform the inherent requirements of the role in the near future.

[35] As we have observed, Dr Graham was the only doctor to provide an assessment of Mr Norman’s overall capacity, and the only doctor to provide an assessment about Mr Norman’s capacity to perform the inherent requirements of his role. In the context of providing a “fair go all round” it is difficult to imagine what more an employer could do than Lion Dairy did in this case. Accepting the most relevant and comprehensive medical advice clearly should have led to a conclusion that Lion Dairy’s reason for termination was sound, defensible and well founded.

[36] In our view, the errors in the approach and analysis of the Deputy President vitiated the discretion vested in the Commission. It is clear in our view that the Deputy President should have found that there was a valid reason for the dismissal. It is appropriate therefore that we allow the appeal and quash the decision and order of the Deputy President. We propose to re-determine the question of whether the termination was harsh, unjust or unreasonable.

Redetermination

[37] As we have indicated above we find that there was a valid reason for the dismissal of Mr Norman based on the medical advice that Lion Dairy received. The reason was sound, defensible and well-founded.

[38] That reason is set out in Lion Dairy’s correspondence to Mr Norman dated 15 April 2015 in which it stated that he was no longer able to perform the inherent requirements of his position. That letter referred to its reason being formed after advice from Dr Graham on 11 and 30 March 2015.

[39] The report from Dr Graham dated 11 March 2015 was based on an extensive set of materials about Mr Norman’s duties and the physical requirements for those duties. The evidence shows that Dr Graham took those materials into account and his physical examination of Mr Norman into account in preparing his report. In that report he stated that Mr Norman was unfit to perform all the inherent requirements of the job of a maintenance fitter. The report indicated that Mr Norman’s prognosis was very difficult to suggest and that “[h]e is gradually improving but it is not possible to say how far he will continue to improve. In addition there must be a significant degree of degenerative change in the hips and knees which will limit recovery.” In response to a question posed by Lion Dairy about whether any restrictions or reduced functional capacity might be of either a temporary or permanent nature, Dr Graham advised that “it is not possible to say whether they are temporary or permanent. It is hoped that it will improve further but this cannot be guaranteed.” Dr Graham’s report of 30 March 2015 was sought by Lion Dairy after a meeting between the company and Mr Norman on 25 March 2015 in which Mr Norman brought forward a certificate of sickness from Professor Jaarsma. That certificate stated only that Mr Norman had been suffering from a “femur fracture non-union left” and that he would be able to return to work on 30 March 2015.

[40] Dr Graham’s report of 30 March 2015 indicates surprise at Professor Jaarsma certification that Mr Norman would be fit to resume work on 30 March 2015 and he says “I would assume that he is indicating fitness to return to some form of work but I would not imagine that he is considering Mr Norman fit to return to his full duties as a maintenance technician at that time.”

[41] Although it is not explicitly referred to as being a consideration within Lion Dairy’s termination letter, the evidence allows a finding that it considered the available material from Professor Jaarsma. Further, it sought permission from the applicant to speak directly with Professor Jaarsma but that request was denied.

[42] Lion Dairy’s termination letter records that it had considered whether reasonable modifications could be made in order for Mr Norman to perform the inherent requirements of his role and whether he could be moved to another role, and had concluded that neither could be done. While the basis of that decision was challenged in the original hearing, it was not shown to be an implausible or incorrect statement.

[43] In totality Lion Dairy’s reason for dismissal was a valid reason properly based upon the evidence available to it when it made its decision, having properly taken account of the material contrary to its own views.

[44] We agree with the Deputy President that the factors in s.387 (d), (e), (f) and (g) either have no relevance or do not attract any weight in this case.

[45] The evidence before the Commission establishes that Mr Norman was given the medical reports on which Lion Dairy formed its view and explained that it was considering termination of employment as a result of the reports. The Deputy President found that even though more time to respond was not sought by Mr Norman, his emotional state and the Easter period in which the discussions occurred meant that the deadline it imposed was unreasonable. The Deputy President found that Mr Norman was advised of the reason for dismissal but was not given a reasonable opportunity to respond to those reasons.

[46] With respect, the reasonableness of the opportunity is not part of the criterion in s.387(c) unless the facts indicate that no opportunity at all was given. The insertion of a qualitative assessment into the legislation alters the test in an impermissible way. The test has been described as being an opportunity to defend by providing a response that might result in the employer deciding not to terminate the employment if the defence is of substance. 52 More time was not sought by Mr Norman; there was no request for a week or a month to be provided in order for Professor Jaarsma or another specialist to provide further information for Lion Dairy’s consideration. We find that Mr Norman was given an opportunity to respond to the reason.

[47] The reasonableness of the opportunity can be legitimately taken into account as another matter considered of relevance under s.387(h). In the circumstances of this matter, Mr Norman had been absent form work for over one year, he was sent for medical assessment by an occupational physician. He was provided with a show cause letter indicating the nature of the medical advice. Mr Norman submitted an alternative medical certificate. The employer then conducted a further show cause meeting and provided a copy of Dr Graham’s supplementary report. After receiving Mr Norman’s response it sought to speak with Professor Jaarsma and that request was refused. We do not consider that any further opportunity would have altered the situation.

[48] We agree with the assessment of other matters in paragraphs [85]-[89] of the Deputy President’s decision.

[49] As the termination of employment was for a valid reason, an opportunity to respond to that reason was provided and a consideration of other factors does not render the dismissal harsh, unjust or unreasonable, we find that the dismissal was not harsh, unjust or unreasonable. We would therefore dismiss Mr Norman’s unfair dismissal application.

Conclusions

[50] For the above reasons we allow the appeal, quash the decision of the Deputy President.

[51] On a redetermination of Mr Norman’s unfair dismissal application we determine that his dismissal was not harsh, unjust or unreasonable. His application is therefore dismissed. An order giving effect to these conclusions should be issued.

Decision of Deputy President Gooley

[52] The Full Bench granted permission to appeal to Lion Dairy and Drinks Milk Limited on the grounds that in this matter we were satisfied that a potential significant error of fact may have led the Fair Work Commission to erroneously decide Mr Peter Norman was able to perform the inherent requirements of his position, when his employer took the view the evidence available to it led to a decision to the contrary, enlivens the public interest.

Background

[53] Deputy President Bartel set out the history of this matter and I do not repeat it here save to say that in February 2014 Mr Norman had a skydiving incident which resulted in significant injuries to his left and right femurs and his face. Mr Norman did not return to work and in February 2015 Lion Dairy sought a medical assessment from Dr Geoffrey Graham of Mr Norman.

[54] At the time Lion Dairy made its decision to terminate Mr Norman’s employment it had before it an initial medical report from Dr Graham dated 11 February 2015; a medical certificate from Professor Rudi Jaarsma clearing Mr Norman to return to work dated 25 March 2015; and a letter from Dr Graham dated 30 March 2015.

[55] Dr Graham is a Specialist Occupational Physician and he was asked by Lion Dairy to provide a medical assessment of Mr Norman and to provide recommendations as to his ongoing capacity to perform the inherent requirements of his role as a maintenance fitter. Dr Graham was provided with a list of Mr Norman’s pre-injury duties; a list of the most common tasks he performed as well as a copy of Lion Dairy’s job dictionary. That sets out the critical physical demands and the frequency of those demands in relation to each task performed.

[56] A summary of his report dated 11 February 2015 is set out in Deputy President Bartel’s decision. 53 Dr Graham concluded that it would be unlikely that Mr Norman would be able to perform all the inherent requirements of the role in the near future.

[57] Professor Jaarsma was Mr Norman’s treating Orthopaedic Surgeon. He provided Mr Norman with a clearance to return to work dated 25 March 2015. That medical certificate provided that Mr Norman could resume work on 30 March 2015. Professor Jaarsma explained in his evidence before the Commission that his clearance to restart work was based on the fact that Mr Norman’s injury was sufficiently healed and Mr Norman was not in danger from his environment nor a danger to himself. He had concluded that there was no risk of re-fracturing or negatively affecting their healing process. 54

[58] After Lion Dairy received Professor Jaarsma’s clearance, Lion Dairy provided it to Dr Graham and he advised that he had not changed his opinion. 55

[59] Mr Norman said his dismissal on 15 April 2015 was unfair because at that time he was able to resume his normal duties.

Principles on appeal

[60] The decision of Deputy President Bartel was a discretionary decision and it is not in contest that the principles set out in House v The King apply.

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 56

[61] Lion Diary was only granted permission to appeal in relation to those grounds pivotal to Deputy President Bartel’s preference for Professor Jaarsma’s evidence on the basis of the findings of fact made at [69] of the decision.

The assessment of a valid reason

[62] Deputy President Bartel determined that there was no valid reason for the termination. In doing so she said that the Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss. 57

[63] Deputy President Bartel was here referring to the decision of Northrop J when in considering s.170DE(1) of the Industrial Relations Act 1988 said:

“Subsection 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is "2 Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). 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 of 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 privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, common sense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. Nevertheless, in cases similar to the one before the Court, the application of s170DE(1) should always be considered and decided before consideration is given to the additional limitations on the right of an employer to terminate the employment of an employee imposed by section 170DE(2) and subsection 170DC. The purpose of these two provisions is to confer a greater protection on employees from termination of employment. In this regard the provisions are not very different from the consequences flowing from an award provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 888; (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held to have been imported by implication as well as the substantive protection conferred by the award. The statutory provisions now apply, by reason of the Act, with minor exceptions, to all employees.”

[64] In its submissions Lion Dairy relied on two decisions of Vice President Watson to support its submission that it was not the role of the Commission in deciding whether there was a valid reason for the termination to determine whether Mr Norman was able to perform the inherent requirements of the job. 58

[65] Vice President Watson in Klein v Australian Pharmaceutical Industries Ltd 59 stated in relation to valid reason that “the authorities in relation to this question make it clear that in determining this question, it is not a matter of the Commission putting itself in the place of the employer and determining what it would have done in the circumstances. It is a matter of evaluating the reasons relied upon by the employer and determining whether the reasons were valid, in the sense that they were sound, defensible and well-founded rather than fanciful or not soundly based”.60

[66] The expression referred to by the Vice President that the Commission does not put itself in the place of the employer derives from the decision of Moore J in Walton v Mermaid Dry Cleaners Pty Ltd. 61 In that decision Moore J said:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”

[67] Lion Dairy submitted that capacity cases should be distinguished from conduct cases where it needs to be established that the conduct actually occurred. It submitted that whether or not misconduct occurred is binary. It either did or did not occur. It submitted that a determination of the inherent requirements was different and as reasonable medical minds may differ “an employer should be entitled to rely on medical evidence that it has before them.” 62

[68] The majority agreed with this submission and contend that Deputy President Bartel asked herself the wrong question when she considered, whether on the evidence before her, Mr Norman was, at the time of the dismissal, able to perform the inherent requirements of his position based on the medical and other evidence. If not, then consideration needed to be given to whether he would be in a position to fulfil his position at some time in the future and whether reasonable modifications could be made to accommodate any restrictions or limitations that he may have. 63

[69] Lion Dairy submitted that there were no cases that specifically dealt with this issue. However that is not the case. This issue was considered by the Full Bench in Jetstar Airways Pty Ltd v Neeteson-Lemkes: 64

“[45] In this matter, as earlier stated, the reason for the dismissal relied upon by Jetstar was a capacity based one, namely that Ms Neeteson-Lemkes was unable to perform the inherent requirements of her safety critical role then or in the future, and that there were no reasonable adjustments which could be made to allow her to perform that role. Section 387(a) therefore required the Commissioner to consider and make findings as to whether, at the time of the dismissal, Ms Neeteson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her and, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her. Those findings then need to be considered and treated as matters of significance in the process of deciding whether Ms Neeteson-Lemkes's dismissal was, to use the general rubric, unfair.” (my emphasis)

[70] This approach is consistent with the approach approved by the Full Bench in Ambulance Victoria v Ms V 65 where the Full Bench said that ‘the issue arising out of the medical evidence was whether the evidence supported a finding that the respondent could not perform the inherent requirements of her role…Having assessed the medical evidence the Commissioner was not persuaded that it supported a finding that there was a valid reason for the termination for a number of reasons stated…”

[71] While it was put that this decision supported the proposition being put by Lion Dairy it is difficult to see how that submission can be made.

[72] In that matter, Ambulance Victoria had conflicting medical reports about whether Ms V could safely perform the inherent requirements of her position. Commissioner Smith, as he was then, considered the medical evidence and did not agree with the conclusion of Ambulance Victoria. 66 In the appeal, the Full Bench did not adopt the proposition that “there was some degree of equivocation in the medical evidence [that] should have been resolved in favour of the appellant, given the nature of this industry, as the appellant’s concerns were reasonably based and the appellant was not in a position to be confident in the respondent returning to her job.”67

[73] The Full Bench said in response to that submission that ‘the responsibility of the Commissioner was to determine whether the evidence supported a finding that there was a valid reason for the termination of employment in all the circumstances, including the particular nature of the industry and the respondent’s role.” 68 It found that Commissioner Smith’s conclusion was reasonably open to him on the evidence.

[74] This approach is consistent with the Full Bench decision in Rode v Burwood Mitsubishi 69 which held “the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” The Full Bench said the Commission “is bound to consider, for itself, whether, on the evidence in the proceedings before it the termination was “harsh, unjust or unreasonable.”70

[75] It is also consistent with the decision of the Full Court of Federal Court in Miller v University of New South Wales 71 which held that the validity of the reason for dismissal must be judged by reference to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has done or as to what the employer requires in order to continue its activities.72

[76] This is also consistent with the decision of the Full Court of the Federal Court in Edwards v Justice Giudice 73 which held that for dismissals which rely on the employee’s conduct “the Commission is required to determine whether the conduct occurred as a step in resolving whether there was a valid reason”.74

[77] A valid reason can relate to a person’s conduct or capacity.

[78] I do not accept the submission of Lion Dairy that conduct cases are binary and capacity cases are not. Context in both conduct and capacity cases plays an essential part in determining whether there was a valid reason for the termination of employment. Not every breach of policy for example would be a basis for a finding that there was a valid reason for the dismissal.

[79] The Act does not impose a different test if an employee is dismissed for reasons related to conduct compared to capacity. In capacity cases the Commission is required to determine if the employee has the capacity or not.

[80] It is not sufficient that the employer believed, based on the medical evidence before it, that it had a valid reason for the dismissal. The Commission must be satisfied that there is a valid reason for the dismissal based on the evidence that is before the Commission.

Consideration

[81] For the reasons set out below I would grant the appeal and quash the decision because the finding of fact that Mr Norman was able to perform the inherent requirements of his position at the time of his dismissal was not open to Deputy President Bartel on the evidence before her and it constituted a significant error of fact.

[82] It is important to note that Deputy President Bartel accepted Dr Graham’s conclusion that Mr Norman was unable to safely perform the inherent requirements of his position as at the date of his examination on 5 March 2015. 75

[83] However she then had to decide if Mr Norman was fit to perform his duties at the point of his dismissal. In making the assessment that he was, she relied on her findings at [69].

[84] Deputy President Bartel said at [69] that she preferred Professor Jaarsma’s evidence to that of Dr Graham. She said as follows:

“[69] In reaching a view as to the applicant's capacity when he was dismissed I prefer the evidence of Professor Jaarsma to that of Dr Graham where there is a conflict. I have relied upon Professor Jaarsma's evidence that:

• The applicant had not achieved his pre-injury level of capacity as at 25 March 2015 but that this is rarely achieved where there has been serious injury and an extended absence from work and that, at best, a recovery to 95% - 98% is achievable.



• The degenerative change in the applicant's left knee was not a barrier to performing his role as maintenance technician;



• The applicant's femurs had sufficiently healed so that he was not at risk of further injury;



• There was no barrier to the applicant returning to work;



• It was up to the employer and occupational physician to determine how the applicant could be fully integrated into his position.”

[85] Deputy President Bartel concluded that Mr Norman had improved after Dr Graham’s assessment. 76

[86] She correctly acknowledged that any assessment must be made in relation to Mr Norman’s substantive role and not on any modified, restricted duties or temporary alternative position. 77

[87] She found that there was no valid reason based on the following findings:

1. He had some residual difficulty with squatting but he was not unable to squat or assume awkward positions, nor was he at risk if he did so.

2. He may have benefited from a gradual integration to full duties given he had suffered a significant trauma and had been away from work for over a year.

3. It was wrong to conclude that because he would benefit from reintegration, he was unable to perform the inherent requirements of his position;

4. He could perform the inherent requirements of his position. 78

[88] Lion Diary submitted that Deputy President Bartel erred when she found that there was no valid reason for the dismissal. It contended that Deputy President Bartel erred by failing to take into account a material consideration, namely the fall risk that Mr Norman’s osteoarthritis presented when climbing ladders, which was an inherent requirement of Mr Norman’s position.

[89] In this matter Deputy President Bartel was required to determine if the dismissal was harsh, unjust or unreasonable. In making that assessment the Deputy President had to take into account whether there was a valid reason for the dismissal. That assessment must be assessed by reference to Mr Norman’s state of health and the expert opinions expressed as to his state of health, as they were at the time of his dismissal. 79

[90] What was in dispute was whether he would have been able to fulfil his position sometime in the future and whether reasonable modifications could be made to accommodate any restrictions or limitations that he may have. 80

[91] In reaching her decision Deputy President Bartel had regard to the evidence before her including Mr Norman’s evidence.

[92] In his statement Professor Jaarsma advised that at 25 March 2015 when he examined Mr Norman, Mr Norman briefly described the requirements of his work as a mechanical maintenance technician and explained that he was doing significant work on his farm which included maintaining and repairing trailers and cars. He explained that this included bending, lifting and kneeling. He reported that he was working ten hours per day and that this work closely mimicked his work as a technician. Professor Jaarsma indicated that he had reached a functional range of motion. Professor Jaarsma agreed, based on his examination and what Mr Norman told him, that he could go back to work and he cleared him to start work.

[93] Professor Jaarsma explained that his clearance was in relation to Mr Norman’s injury in other words “there was no further risk of refracturing or negatively affecting their healing process.”

[94] Dr Graham’s evidence focused on the “degenerative changes in [Mr Norman’s] knees, and to a lesser extent some reduced rotation in his hips.” 81 It was the degenerative changes which put Mr Norman at risk if he returned to his pre-injury duties.82 It was his evidence that there was “the potential for the applicant to suffer sharp pain and a feeling of instability in the knee when performing tasks where balance and stability are important.83 It was his evidence that sustained performance would likely result in further degenerative change to his knee.84

[95] Dr Graham did not change his assessment even after being advised of Professor Jaarsma’s clearance. He stated that he assumed that Professor Jaarsma “is indicating a fitness to return to some form of work but I would not imagine that he is considering Mr Norman fit to return to his full duties as a maintenance technician at that time.” 85

[96] Professor Jaarsma did not dispute that Mr Norman had a degenerative change in his left knee but it was his view that this was common in people Mr Norman’s age who performed similar physical work. It was his view that those workers were able to perform their work satisfactorily. It was his evidence that that the level of degeneration was not significant. It was his evidence that Mr Norman had very mild arthritis of the left knee and that was there before the accident. It was his view that this would mean “that any worker, 50 year old manual worker who gets in an accident will probably lose his job then because he has degenerative changes from all the hard work that he’s done before.” 86

[97] Deputy President Bartel’s rejected Dr Graham’s evidence in relation to the risk of further injury. She found that this oral evidence was inconsistent with the report prepared by Dr Graham after seeing Mr Norman on 5 March 2015. Dr Graham said in that report that “the likelihood of risk of further injury is not great.” In his second witness statement, Dr Graham explained that he was not “concerned about any return to work resulting in injury to Mr Norman’s femurs. The focus of my assessment, and my concerns, was on the joints above and below Mr Norman’s fractures.” 87 In his oral evidence he reiterated that this was a reference to the fact that he was not going to re-fracture his femurs.88 Deputy President Bartel rejected this explanation because it was “inconsistent with the focus of his assessment. At the time of his assessment on 5 March 2015 the applicant had not been cleared by Professor Jaarsma and Dr Graham did not have any radiology on which to support such a conclusion.”89 However despite rejecting this evidence she accepted the conclusion in his report that at the time of the assessment Mr Norman was not able to perform the inherent requirements of the position.

[98] The only evidence that Deputy President Bartel had of any change in Mr Norman’s condition was that of Professor Jaarsma who saw Mr Norman on 25 March 2015. Professor Jaarsma cleared Mr Norman to return to work, he did not clear him to return to his pre-injury duties. He accepted that and Deputy President Bartel accepted that “it was up to the employer and occupational physician to determine how the applicant could be fully integrated into his position.”

[99] Professor Jaarsma’s oral evidence before the Commission made it clear that he was not assessing Mr Norman’s capacity to perform the inherent requirements of his position. He was assessing whether Mr Norman’s injuries were sufficiently healed so as to enable him to return to work. He did not make an assessment of whether Mr Norman’s other condition namely his degenerative condition meant that Mr Norman could or could not perform the inherent requirements of his position. Professor Jaarsma did not at that time provide an assessment of Mr Norman’s degenerative condition. Professor Jaarsma did not express an opinion at the time of the dismissal that Mr Norman could safely perform the inherent requirements of his position. He maintained that Mr Norman was fit to return to work because his injuries were healed.

[100] As such there was no evidence on which Deputy President Bartel could conclude that Mr Norman’s condition had changed between the date of Dr Graham’s assessment and his dismissal. As she accepted that he was not fit to perform the inherent requirements of the position at that time then she erred when she found that at the date of his dismissal he was able to perform the inherent requirements of the position.

[101] This finding was a crucial finding in her decision and her finding is a significant factual error.

[102] Accordingly I would uphold the appeal and quash the decision and order of Deputy President Bartel.

The disposition of the application

[103] At the hearing of the appeal it was put that if the Full Bench found that the Deputy President should have found that there was a valid reason then the Full Bench should determine the application itself. Ms Preston accepted this proposition. 90 Mr Manuel advised that he was not prepared to re-argue the matter.91 Mr Manual was advised that we would hear from him on that point. Mr Manuel did not then press the point nor propose that this issue be determined on another occasion.

[104] I consider it appropriate therefore in all the circumstances to determine the question of whether the dismissal was harsh, unjust or unreasonable.

[105] I am satisfied that there was a valid reason for the dismissal. I am satisfied that on the evidence before the Commission, at the date of his dismissal Mr Norman was not able to safely perform the inherent requirements of his position. I am also satisfied that there was no reasonable accommodation that could have been made to enable him to perform the requirements safely.

[106] I do not agree with the decision of the majority that s.387(c) only has relevance if the employee is given no opportunity to respond. The opportunity to respond must be real. For the reasons set out by the majority in relation to s.387(h), I am satisfied that Mr Norman did have an opportunity to respond to the reason.

[107] I agree with the Deputy President Bartel that the factors in s. 387 (d), (f) and (g) either have no relevance or do not attract any weight in this case.

[108] I further agree with the conclusion of Deputy President Bartel at [85]-[89].

[109] I am therefore satisfied that, given there was a valid reason for the dismissal and Mr Norman was afforded procedure fairness, that the termination of his employment was not harsh, unjust or unreasonable.

[110] For those reason I would allow the appeal and quash the decision of Deputy President Bartel. For the reasons set out above I would also dismiss Mr Norman’s application for an unfair dismissal remedy.

VICE PRESIDENT

Appearances:

Ms R. Preston of counsel, with Ms D. Katris, for Lion Dairy.

Mr R. Manuel of counsel, with Mr T. Hardie, for Mr P. Norman.

Hearing details:

2016.

Melbourne – Video Link to Adelaide.

22 June.

Final written submissions:

Lion Dairy on 18 April 2016.

Mr Norman on 26 May and 20 June 2016.

 1   [2016] FWCFB 1887.

 2   Edwards v Justice Guidice [1999] FCA 1836 at [5] per Moore J.

 3   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, (1999) (unreported, AIRC (FB), R4471, 11 May 1999).

 4   Jetstar Airways Pty Limited v Neeteson-Lemkes, [2013] FWCFB 9075; Hatcher VP, Drake SDP and Riordan C; at [53].

 5   Ex R2 at para 15(b).

 6   Ex R2 at para 29.

 7   At PN958.

 8   At PN153-154.

 9   At PN1177.

 10   Ex R4.

 11   (2010) 195 IR 292 at 299.

 12   Ibid at para 22.

 13   (1995) 62 IR 371.

 14   (1995) 130 ALR 168.

 15   (1988) 84 FCR 483.

 16   S4213.

 17   (1999) 169 ALR 89 at 92 per Moore J.

 18   See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 19   2001 FCA 1031.

 20   PR923358.

 21   PR953449.

 22   Section 49.

 23   PN2452 to PN2456.

 24   PN2459 to PN 2463. PN 2512 to 2514.

 25   Para 47, Exhibit R9.

 26   PN 2452.

 27   Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.

 28   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 14.

 29   PR956925.

 30   [2011] FWA 8576.

 31   [2012] FWAFB 1616.

 32   [2011] FWA 8576, at para 45.

 33   [2010] FWAFB 4022.

 34   (1999) 200 CLR 177.

 35   (1999) 200 CLR 177 at 209.

 36   (2004) 143 IR 354 at [124].

 37   (1998) 193 CLR 280.

 38   (1998) 193 CLR 280 at [35].

 39   (1998) 193 CLR 280 at [33] – [34].

 40   (1998) 193 CLR 280 at [37].

 41   (1998) 193 CLR 280 at [72] – [73].

 42   Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.

 43   Ermilov v Qantas Flight Catering Pty Ltd (PR956925, Giudice J, Hamberger SDP and Raffaelli C, 4 April 2005) at [34].

 44   Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1665 (Gray, Branson and Kenny JJ) at [14].

 45   See, for example, Stergioti v Toyota Motor Corporation Australia Limited (PR953320, Duncan SDP, 17 November 2004).

 46   [2013] FWCFB 9075.

 47   Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5] per Moore J; King v Freshmore (Vic) Pty Ltd Print S4213 at [19]-[23].

 48   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8].

 49   PN1158.

 50   [2010] FWAFB 4022 at [29].

 51   UKEAT/0393/14/DM.

 52   Wadey v YMCA Canberra [1996] IRCA 568.

 53   [2016] FWC 840 at [19].

 54   Ibid at [28].

 55   Ibid at [25].

 56   (1936) 55 CLR 499 at 504.

 57   [2016] FWC 840 at [58].

 58   Transcript PN 87-90.

 59   [2014] FWC 7251.

 60   Ibid at [6].

 61   142 ALR 681 at 685 at [25].

 62   Transcript PN 94.

 63   [2016] FWC 840 op cit at [60].

 64   [2013] FWCFB 9075.

 65   [2012] FWAFB 1616.

 66   [2011] FWA 8576 at [44]-[46].

 67   Ibid at [28].

 68   Ibid at [28].

 69   Print R4471 at [19].

 70   Ibid at [20].

 71   132 FCR 147.

 72   Ibid at [13].

 73   169 ALR 89.

 74   Ibid at [7] and [69].

 75   [2016] FWC 840 at [61].

 76   [2016] FWC 840 at [70].

 77   Ibid at [71].

 78   Ibid at [72].

 79   Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075 at [55].

 80   [2016] FWC 840 at [60].

 81   Ibid at [20].

 82   Ibid.

 83   Ibid.

 84   Ibid at [21].

 85   Ibid at [25].

 86   Ibid at [34].

 87   Appeal Book at page 415.

 88   Appeal Book at page 151.

 89   [2016] FWC 840 at [66].

 90   Transcript PN 154-155.

 91   Ibid at PN 158.

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