| [2018] FWC 2119 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Vijayan Kothandan
v
Transdev Melbourne Pty Ltd T/A Transdev
(U2017/12891)
COMMISSIONER MCKINNON |
MELBOURNE, 13 APRIL 2018 |
Application for an unfair dismissal remedy - medical incapacity – inherent requirements of the role.
[1] Vijayan Kothandan (Mr Kothandan) was employed as a Bus Driver by Transdev Melbourne Pty Ltd (Transdev) from 12 January 2015 until 13 November 2017. He suffered a work injury on 8 July 2016 and worked on and off on modified duties until an incident on 28 March 2017, after which he did not work again. On 13 November 2017, his employment was terminated on the grounds that his restricted medical capacity prevented him from safely performing his role.
[2] On 4 December 2017, Mr Kothandan applied to the Commission for an order granting a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act) because Transdev did not provide him with appropriate treatment to recover or support his rehabilitation and failed to provide a safe working environment. He said there was no valid reason for dismissal and that the dismissal was harsh.
[3] On 20 December 2017, Transdev filed a response to the unfair dismissal application asserting that the dismissal was not unfair.
[4] The matter was conciliated on 3 January 2018 and was not settled. On 28 February 2018, I sought the views of the parties about whether a conference or hearing should be held to deal with the matter. Taking those views into account, I decided that a determinative conference would be the most effective and efficient way to resolve the matter.
[5] The conference was convened on 13 March 2018 in Melbourne. Neither party was represented by a lawyer or paid agent for the purposes of section 596 of the Act.
[6] Mr Kothandan gave evidence on his own behalf and called his wife, Vijayashanthi Manoharan, as a witness. An unsworn witness statement of Paul Alexander was also filed in support of Mr Kothandan’s application but Mr Alexander did not attend the hearing and Transdev objected to the statement. The probative value of the statement is doubtful and it does not appear to add much to the evidence provided by Mr Kothandan. I have given it little weight.
[7] Transdev called Kartika Sharma, South Area Manager, and Sandra Code, Health Services Manager, as witnesses.
[8] Written submissions were filed by Mr Kothandan on 4 February 2018, 21 March 2018 and 28 March 2018 and by Transdev on 26 February 2018 and 21 March 2018.
[9] The application was filed within the standard 21 day time limit required by the Act.
[10] Section 382 sets out when a person is protected from unfair dismissal. Under section 382, a person is protected from unfair dismissal if, at the relevant time:
• They have completed at least the minimum employment period; and
• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.
[11] There is no dispute that Mr Kothandan’s period of employment with Transdev was longer than the minimum employment period and that the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014-2018 1 (Agreement) applied to his employment. Accordingly, Mr Kothandan is protected from unfair dismissal.
[12] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, that the dismissal was not consistent with the Small Business Fair Dismissal Code and not a case of genuine redundancy. 2
[13] There is no dispute that Mr Kothandan was dismissed from his employment at a time when Transdev employed approximately 1000 employees. 3 I am satisfied that he was dismissed and that the dismissal could not have been consistent with the Small Business Fair Dismissal Code4, because Transdev was not a small business employer at the time of the dismissal.5
[14] No issue of redundancy arose in this matter and I am satisfied that the dismissal was not a case of genuine redundancy.
[15] The issue to be determined is whether the dismissal was harsh, unjust or unreasonable.
[16] This case has a long history. On 16 January 2016, Mr Kothandan injured his back at work. He was subsequently placed on light duties, including refuelling buses at the depot. 6 He returned to pre-injury duties approximately four weeks later.7
[17] On Friday 8 July 2016, Mr Kothandan experienced pain in his left wrist and thumb while driving a bus. He returned to the depot and later sought treatment at Dandenong Hospital Emergency Department. After a series of tests, he was discharged and advised to see his general practitioner. 8
[18] On Wednesday 13 July 2016 9 Mr Kothandan attended Dr Peter Williams and obtained a medical certificate which he provided to Transdev10 and sought a transfer to temporary light duties. Transdev considered his request but was not persuaded that the matter involved a work injury.11
[19] On 18 July 2016 and again on 18 August 2016, Mr Kothandan obtained certificates of capacity from Dr Jayaprakasam stating that he could not use his injured hand/arm or hold the bus steering wheel and recommending he not “drive buses again until the pain strength and grip has returned”. They confirmed capacity for suitable employment from 8 July 2016 to 3 September 2016. 12
[20] On 20 July 2016, Mr Kothandan made a workers’ compensation claim for his injury. 13 While waiting for it to be approved, he did not receive his ordinary weekly income. This was a stressful period for him, which coincided with the birth of his third child.14
[21] On 25 August 2016, an independent medical assessment of Mr Kothandan was carried out by Dr Doig, Orthopaedic Surgeon. Dr Doig was unable to confirm a diagnosis except to say that from a clinical perspective, Mr Kothandan appeared to have a problem in his cervical spine causing nerve root irritation. He recommended an MRI scan and advised that Mr Kothandan was fit for restricted duties (restricted lifting, bending and twisting) with the duration of incapacity “unknown”. 15
[22] On 5 September 2016, Mr Kothandan obtained a certificate of capacity diagnosing “pain left side of neck radiating down to Lt thumb with occasional paraesthesia (numbness, tingling – currently resolved)”. While it confirmed his capacity for pre-injury employment, it also stated his return to work should be in a role “not involving much neck movement eg: desk job”. It identified that Mr Kothandan was experiencing mental health symptoms including panic attacks and that the “work cover issue was causing anxiety and mild depression”, but declared his mental health capacity “not affected”. 16
[23] On 6 September 2016, Mr Kothandan met with Ms Kartika Sharma and provided her with his recent certificates of capacity. He advised that he was fully cleared to go back on the road, but needed more time to look after his children as his wife had recently given birth by caesarean section. He was asked to provide a carer’s certificate and did so on 15 September 2016. The certificate covered the period from 5 to 18 September 2016. 17 He also advised Ms Sharma that he had stopped taking his medication and that the pain he had been experiencing had returned.18
[24] On 12 September 2016, Mr Kothandan’s workers’ compensation claim was accepted by Allianz Australia. 19
[25] On 18 September 2016, a certificate of capacity for Mr Kothandan certified him fit for suitable employment from 18 September 2016 to 16 October 2016. The work restrictions were consistent with earlier certificates and in addition, recommended treatment by a psychologist. 20
[26] On 19 September 2016, Mr Kothandan’s wife was injured in a fire accident while cooking. Mr Kothandan spent the night at the hospital and was away from work for a period thereafter. Mr Kothandan and Ms Sharma discussed his need to take carers’ leave and to provide a carers’ certificate for the absence on 21 September 2016 and on 26 September 2016, Transdev wrote to Mr Kothandan confirming the discussion about his carer’s leave and requesting a carers’ certificate. 21 No such certificate was provided22 and it is not clear whether he was paid for the absence. While Mr Kothandan was due to return to work on modified duties from 21 September 2016, he did not do so.
[27] On 4 October 2016, a Temporary Return to Work Plan and Offer was prepared for, and agreed to by, Mr Kothandan. It noted that he had not been at work since cleared of a neck injury on 5 September 2016 due to carers leave / family issues and that he had a medical restriction of “work not involving much neck movement”. Suitable duties offered included yard plans, audits, pre- and post-drive bus checks and miscellaneous depot tasks on a full time basis for two weeks.
[28] On 10 November 2016, Mr Kothandan returned to work on modified duties. However, he did not attend work the following week commencing 14 November 2016 and did not provide a medical certificate separate to the relevant certificate of capacity. 23
[29] On 24 November 2016, an independent medical assessment of Mr Kothandan was carried out by Associate Professor Damodaran, Consultant Psychiatrist. Associate Professor Damodaran diagnosed Mr Kothandan with adjustment disorder with anxious mood, possibly resulting from aggravation of pre-existing deep seated anxiety. He reported Mr Kothandan as apprehensive of driving a bus due to his physical difficulties and his poor concentration. He considered Mr Kothandan’s ongoing anxiety, avoidance, panic attacks and rumination to be affecting his ability to perform bus driver duties, which he noted required attention, concentration and motivation along with focus. He expressed the opinion that Mr Kothandan did not have capacity for pre-injury duties but had capacity for modified or alternate pre-injury duties up to his pre-injury hours for four to six weeks and a return to pre-injury duties within his physical limitations. 24
[30] Dr Doig also saw Mr Kothandan again on 24 November 2016. He considered Mr Kothandan’s symptoms unchanged and noted that no MRI had yet been obtained. He diagnosed a soft tissue injury to the left of the cervical spine, with underlying pathology unknown. He certified Mr Kothandan physically fit for return to pre-injury hours but not pre-injury duties. While he considered light bus driving duties achievable for a few hours per day, he felt that psychological issues outside his area of expertise were affecting recovery. 25
[31] Transdev appears to have become concerned about Mr Kothandan’s participation in his return to work plan because on 28 December 2016, there was a formal performance discussion between Mr Kothandan and Ms Sharma about his attendance, punctuality and compliance with the plan. Paul Alexander attended as the Transport Workers’ Union (TWU) delegate. The discussion focused specifically on non-compliance in the week commencing 14 November 2016 and 23 December 2016 (absence without medical certificate) as well as that day, when he was 1 hour and 45 minutes late to work. Mr Kothandan explained that his absences were related to the medication he was taking and his anxiety at the thought of attending work. He asked Transdev to consider providing light duties to everyone fairly. He was advised to give 2 hours’ advance notice if he was not coming to work and to bring medical certificates if he was unable to attend his rostered return to work shifts. 26
[32] On 6 January 2017 a certificate of capacity was issued by Dr Jayaprakasam diagnosing the same neck pain earlier identified and also “anxiety (with panic attacks) & depression secondary to above problem/work cover issues”. Confusingly, it stated that Mr Kothandan was fit for suitable employment (not involving much neck movement) from 10 January 2017 to 6 February 2017 but also that he had no capacity for employment. It referred to the mental health concerns previously identified and recorded Mr Kothandan’s concentration as “affected” during panic attacks. 27
[33] On 5 February 2017, a similar certificate of capacity was issued confirming capacity for suitable employment from 6 February 2017 to 5 March 2017. It recommended return to work “as per RTW case conference plan” and that Mr Kothandan continue physiotherapy and psychology sessions as well as start seeing a psychiatrist. 28
[34] That week, Ms Sharma recorded Mr Kothandan as having been asked both to help with washing buses by driving them through Drive through and driving a car to the North Fitzroy depot, which he declined because he was feeling anxious about driving. Mr Kothandan subsequently provided a medical certificate confirming he was only suitable to work as per his return to work plan. 29 His return to work plan of 4 October 2016 did not include driving tasks. It is not clear if the plan had since been revised, although an email from Workplace Rehabilitation Consultant, Ms Aysegul Martinez to Ms Sharma on 10 February 2017 advised that agreement had been reached for Mr Kothandan to commence re-introducing himself to buses, including parking buses once washed within the depot.30
[35] On 9 March 2017, a certificate of capacity was issued with no change to Mr Kothandan’s diagnosis or recommended treatment and confirming capacity for suitable employment from 6 March 2017 to 2 April 2017. 31
[36] On 17 March 2017, Ms Martinez asked Transdev whether Mr Kothandan had participated in driving and parking buses at the depot and what other graduated bus driving duties might be available. Transdev replied that Mr Kothandan had not been driving any buses and that it planned to start training him in administrative duties. 32
[37] On 21 March 2017, a case conference with Mr Kothandan, Dr Jayaprakasam and Ms Martinez was held to discuss Mr Kothandan’s return to work. Dr Jayaprakasam advised that Mr Kothandan did not have capacity to drive to another depot to park buses due to anxiety. 33
[38] On 28 March 2017, while at work, Mr Kothandan received a phone call from Allianz Australia requesting that he attend an independent medical assessment in the Melbourne CBD, about 50 kilometres from his home. Mr Kothandan asked for the assessment to be closer to his home because of anxiety travelling long distances. 34
[39] The phone call lasted approximately one hour and the independent medical assessment was scheduled by Allianz for 25 May 2017. Toward the end of the call, Mr Kothandan had a panic attack. He asked a number of Transdev employees to help him get home but they were working and unable to assist immediately. He rang his wife and asked her to pick him up and also rang 000 to request an ambulance. Eventually Ms Sharma agreed to drive ahead of him on his way home. 35
[40] Mr Kothandan did not attend for work again after 28 March 2017.
[41] On 29 March 2017, there was an email exchange between Transdev and Ms Martinez about the events of the previous day and the need to obtain the MRI. Ms Martinez advised that Mr Kothandan was “extremely anxious about obtaining it”. 36
[42] On 31 March 2017, a certificate of capacity was issued by Dr Jayaprakasam upgrading Mr Kothandan’s diagnosis to severe anxiety and confirming no capacity for employment from 29 March 2017 to 9 April 2017. 37
[43] On 18 May 2017, there was a return to work meeting with Mr Kothandan, Ms Martinez, Ms Sharma and Ms Code from Transdev, and Allianz and Insurance House representatives. The meeting discussed the events of 28 March 2017. Mr Kothandan explained that his concern about the medical assessment scheduled for 25 May 2017 was not driving, but the distance required to travel because he might have a panic attack on the way. He explained that his anxiety related to not being paid for three months at the early stage of his WorkCover claim and strategies to manage possible panic attacks were discussed. Mr Kothandan advised that he had not been participating in psychological treatment; that he was motivated to return to work but did not have the confidence to drive and would be practising driving the following week. 38
[44] On 25 May 2017, Associate Professor Damodaran saw Mr Kothandan again. He diagnosed adjustment disorder with anxious mood along with panic attack with mild agoraphobia. He advised that from a psychiatric point of view, Mr Kothandan was not capable of returning to work in pre-injury hours and duties at least for the next three to six months. His opinion was that after the telephone call on 28 March 2017, Mr Kothandan was “totally incapacitated for all work from that time”. He noted that a graduated return to work on modified duties and hours could be considered but Mr Kothandan was not able to drive a motor vehicle independently. 39
[45] Dr Doig also saw Mr Kothandan on 25 May 2017, noting that his physical condition was much improved and current treatment (simple analgesics as required) was appropriate. He considered repetitive bus driving to have pre-disposed toward Mr Kothandan’s condition. From a physical perspective, he considered Mr Kothandan should be able to return to restricted hours driving a bus and “build up accordingly”, but that this may prove difficult due to his “significant secondary psychological issues”. 40
[46] On 20 June 2017, there was a medical review involving Mr Kothandan, Dr Jayaprakasam and Ms Martinez to discuss progress with his return to work. 41
[47] On 23 June 2017, Mr Kothandan changed doctors. There is a dispute about the reasons why, but nothing turns on it. Dr Soares issued a certificate indicating that Mr Kothandan had no capacity for employment from 19 June 2017 to 9 July 2017, imposing lifting restrictions and noting that his judgement was affected due to anxiety. 42 The period of incapacity was subsequently extended to 6 August 2017.43
[48] On 17 July 2017, Associate Professor Damodaran provided a supplementary independent medical assessment confirming that Mr Kothandan was able to use public transport independently. 44
[49] On 27 July 2017, there was a medical review involving Mr Kothandan, Dr Soares and Ms Martinez. Mr Kothandan reported neck, arm and lower back pain and advised he had been to the hospital approximately three days prior, where a nerve conduction test had shown carpel tunnel on the left side. A return to work arrangement adopting recommendations from the independent medical assessments was proposed by Ms Martinez and supported by Dr Soares for commencement on 7 August 2017. Mr Kothandan did not sign the plan. 45 While the option of his taking public transport to work was discussed, Mr Kothandan advised that he would prefer, and would be able, to drive to and from work.46
[50] Following the medical review, a six month progress report on Mr Kothandan’s rehabilitation was prepared by Ms Martinez. It indicated no progress toward the return to work goal of “pre-injury hours and pre-injury duties”. However, it supported a graduated return to pre-injury duties and hours. It recommended that Mr Kothandan return to work on 7 August 2017 for four hours, three days per week with continued modified duties, medical treatment and support. 47 Mr Kothandan did not return to work.
[51] On 16 August 2017, Mr Kothandan obtained an MRI which confirmed bone and disc degenerative change and multi-level disc bulging with relatively minor thecal and nerve root encroachment. 48
[52] On 18 August 2017, a certificate of capacity was issued by Dr Soares with restrictions on lifting and driving and noting that Mr Kothandan’s judgement was affected. He was certified with capacity for suitable (office) duties from 21 August 2017 to 17 September 2017. 49 His capacity was subsequently downgraded to “no capacity for employment from 26 August 2017 to 24 September 2017.50
[53] On 18 September 2017, Mr Kothandan was asked to attend a meeting with Transdev on 20 September 2017. 51 He asked for the meeting to be delayed because he “had to leave Melbourne for a couple of weeks”, and delay would allow the meeting to involve Ms Martinez, who was also on leave.52 The meeting was arranged for 16 October 2017.
[54] On 10 October 2017, Dr Soares issued a certificate of capacity confirming Mr Kothandan had no capacity for employment from 25 September 2017 to 22 October 2017. 53
[55] On 16 October 2017, there was a meeting between Mr Kothandan, Ms Sharma, Paul Alexander (support person) and Johann Pereira (Area Manager). Mr Kothandan was given a letter for Dr Soares requesting a medical opinion on his capacity for work. He asked for more time as he had specialist appointments arranged for 4 and 11 November 2017 and Dr Soares needed the results to give her opinion. He also requested a similar letter for Dr Jayaprakasam, as he had only been seeing Dr Soares for three months. Transdev gave him a letter for each doctor and asked for responses from them by 30 October 2017. 54 Following a subsequent discussion between Mr Kothandan and Ms Sharma, the date for response was extended by one week and a further meeting arranged for 8 November 2017.
[56] On 23 October 2017, Dr Soares issued a certificate of capacity with the same diagnosis of “L shoulder injury, anxiety and panic attacks” and lifting restriction and noting that his judgement (ability to make decisions) was “affected”. It recommended Mr Kothandan “to do light duties at work, to work 3 days a week, to drive 30 minutes at a time after 1st week at work” and certified capacity for suitable employment from 23 October 2017 to 19 November 2017. 55
[57] On 8 November 2017, Mr Kothandan attended work for a meeting with Ms Sharma but the meeting did proceed as planned. 56 The meeting was rescheduled for 13 November 2017.57
[58] On 13 November 2017, Mr Kothandan met with Ms Sharma, Bob Lean from the TWU and Duncan Campbell of Transdev. Mr Kothandan was advised that based on the available medical advice, Transdev felt his restricted capacity prevented him working as a bus driver and his employment was to be terminated. A letter of termination was subsequently issued confirming payment in lieu of notice of termination. 58
[59] On 21 December 2017, Dr Doig conducted a further independent medical assessment of Mr Kothandan. He noted his condition appeared unchanged and with the benefit of the MRI, diagnosed aggravation of pre-existing degeneration of the cervical spine. He certified Mr Kothandan as physically fit for alternative duties with lifting restrictions. The secondary psychiatric injury and chronicity of the problem caused him to report that “the worker’s condition may not improve in the future.” 59
[60] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 60 as follows:
“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[61] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria in section 387 of the Act. Those are considered in turn.
Was there a valid reason for the dismissal related to Mr Kothandan’s capacity or conduct?
[62] The reason given to Mr Kothandan for dismissal was that his restricted capacity prevented him from safely performing his contracted duties as a Bus Driver. 61 In other words, he was unable to fulfil the inherent requirements of his role.
The inherent requirements of Mr Kothandan’s role
[63] In J Boag and Son Brewing Pty Ltd v Button 62 (Boag), a Full Bench of the Commission held that when an employer relies upon 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.
[64] In this case, Mr Kothandan’s substantive role was Bus Driver. The parties agreed it is a “safety sensitive position”. Mr Kothandan was required to drive a bus on public roads, transporting passengers safely across pre-determined bus routes. The primary purpose of the role was to handle “all facets of bus driving, ticket sales and customer relations for general service, including school, route service, charter, special event driving eg. Grand Prix, train/tram replacement”. 63
[65] A Transdev document titled “Inherent Requirements – Bus Driver” describes the role as a “predominately sedentary task, which require a number of repetitive and sustained upper limb postures and gross motor movements as well as a high level of fine more [sic] control. In addition, a number of higher order cognitive functions and a sustained level of attention and concentration are essential.” 64 Excellent reasoning and judgement skills are also essential so that drivers can “respond to the environment and traffic conditions and ensure overall safe operation of the bus.” 65
[66] In the area where Mr Kothandan worked, Transdev operated two bus runs – the Orbital Run (approximately 3 to 3.5 hours in duration, between Chelsea and Airport West and between Frankston and Melbourne Airport) and the Track Run (approximately 1 hours’ duration including local runs, school runs and dart runs on the freeway to the city). 66
[67] It is clear from the above that among the inherent requirements of Mr Kothandan’s role was the requirement to regularly drive buses for periods of at least one hour, while applying a sustained level of attention, concentration and judgement.
Did Mr Kothandan have capacity to perform the inherent requirements of his role?
[68] In CSL Limited T/A CSL Behring v Chris Papaioannou, 67 a Full Bench of the Commission found that where a dismissal relates to a person’s capacity, section 387(a) of the Act requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity having regard to the relevant medical and other evidence before the Commission.
[69] The decision directs attention to Mr Kothandan’s capacity for work on 13 November 2017. The certificate of capacity current at that time indicates that Mr Kothandan’s capacity for work was limited. He had a left shoulder injury, anxiety and panic attacks. He was authorised to perform light duties with no lifting for three days a week, could use his injured arm/hand with modification and was authorised to drive for 30 minutes at a time after his first week at work. He had ongoing anxiety and his judgement was affected. 68
[70] The certificate of capacity was generally consistent with the earlier comprehensive medical reports prepared by Dr Doig and Associate Professor Damodaran. It recommended a shorter driving period of 30 minutes initially, taking into account the overall medical condition of Mr Kothandan, his anxiety about driving and the proposed gradual return to pre-injury duties.
[71] Associate Professor Damodaran’s assessment on 25 May 2017 had confirmed that Mr Kothandan would not be capable of returning to work in pre-injury hours and duties at least for the next three to six months. At best, that would have seen Mr Kothandan’s recovery by August 2017 and at the outer limit, would have concluded approximately two weeks after dismissal. As things transpired, there was no such mental health improvement.
[72] Dr Doig’s diagnosis on 25 May 2017 had confirmed that Mr Kothandan should be able to return to restricted hours driving a bus and “build up accordingly”, but that this may prove difficult due to his “significant secondary psychological issues”. 69 This followed an earlier opinion that Mr Kothandan may have physical (as opposed to mental) capacity for light bus driving duties for a few hours per day, but that he was not fit for pre-injury duties.
[73] On 21 December 2017, when Dr Doig subsequently examined Mr Kothandan approximately five weeks after the dismissal, he noted that his condition appeared unchanged from his last consultation in May 2017. He certified Mr Kothandan as physically fit but only for alternative duties with lifting restrictions, not for his substantive role. Mr Kothandan’s secondary psychiatric injury and chronicity of the problem caused him to report that “the worker’s condition may not improve in the future.” 70
[74] The medical assessment of 21 December 2017 occurred after the dismissal, but it was the fourth time Dr Doig had seen Mr Kothandan. He now had the benefit of the MRI and diagnosed “aggravation of some pre-existing degeneration in the cervical spine”. He noted that Mr Kothandan was “only able to drive short distances accompanied by his wife, as he suffers anxiety and panic attacks.”
[75] The overall consistency of Dr Doig’s findings in relation to Mr Kothandan’s capacity over a period of time leads me to conclude that on the day of dismissal, the position would not have been materially different. It is on that basis that I have taken the 21 December 2017 report into account.
[76] In my view, the medical evidence establishes that at the time of dismissal, Mr Kothandan’s medical condition prevented him from regularly driving buses for periods of at least one hour at a time, while applying a sustained level of attention, concentration and judgement.
[77] I find that Mr Kothandan did not have the capacity to perform the inherent requirements of his role as Bus Driver on 13 November 2017.
Was there a valid reason for dismissal?
[78] A Full Court of the Federal Court considered the approach to determining whether a valid reason exists in the context of incapacity in Crozier v Australian Industrial Relations Commission (Crozier). 71 It held:
“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.”
[79] While Crozier was decided under an earlier iteration of Australian workplace law, it has since been applied in matters arising under the Act and it is relevant in this case. 72
[80] As I have found that Mr Kothandan did not have the capacity to work as a Bus Driver at the time he was dismissed on 13 November 2017, it follows that there was a valid reason for his dismissal related to his capacity at that time.
Was Mr Kothandan notified of the reason for dismissal?
[81] On 16 October 2017, Transdev wrote to Mr Kothandan about its concern that his “incapacity may not be temporary” and “may prevent you from safely carrying out the inherent or essential requirements of your pre-injury/illness position.” The letter also said:
“It is important that we have accurate and detailed medical information because it may affect what the Company decides to do about your job. If your incapacity is such that you will not be able to safely carry out your pre-injury/ illness duties in the near future, we will need to give serious consideration as to whether or not to continue your employment.” 73
[82] The letter was given to him in the meeting on 16 October 2017. Mr Kothandan and Ms Sharma subsequently spoke about the need for responses to be provided by his doctors and additional time was provided for that to occur.
[83] On 13 November 2017, Mr Kothandan was advised of his dismissal on the grounds of restricted capacity for work in the meeting with Ms Sharma and Mr Lean from the TWU.
[84] I am satisfied that both before and at the time he was dismissed, Mr Kothandan was notified of the valid reason for his dismissal relating to his capacity for work.
Was Mr Kothandan given an opportunity to respond?
[85] Ms Code gave evidence that by June 2017, she had formed the view that it was unlikely Mr Kothandan would return to pre-injury duties. Despite that view, Transdev continued to work toward a return to work with Mr Kothandan but was unable to achieve that goal.
[86] On 20 September 2017, Transdev began the process of a formal employment review. It advised Mr Kothandan of its concerns in a letter dated 16 October 2017 (which also included a letter to Dr Soares dated 20 September 2017). Mr Kothandan says he received the letter to Dr Soares in the meeting on 16 October 2017 and I find that he did. From that date, he had approximately four weeks to obtain further medical opinion and provide it to Transdev prior to the dismissal.
[87] Mr Kothandan gave evidence that he dropped one of the letters to Dr Jayaprakasam at the clinic but did not speak to her as she had ceased to be his doctor. He attended an appointment with Dr Soares and she issued the certificate of capacity but according to Mr Kothandan, she did not agree to complete the report without further specialist advice and handed it back to him. 74 Ms Sharma gave evidence of a phone call with Mr Kothandan approximately one week later where he told her that he had not given the paperwork to his doctors and she asked him to do so because it was very important for the business “so that correct decision can be made when reviewing his employment.” She advised that without the information, Transdev would make the decision based on his certificates of capacity and the independent medical assessments.75 I accept Ms Sharma’s evidence of this discussion.
[88] It is not in dispute that full copies of the assessment reports were not made available to Mr Kothandan until after the dismissal when Allianz agreed to release them. 76 Mr Kothandan did not trust the short extracts from those reports included in the six month progress report prepared by Ms Martinez and provided to him on 27 July 2017, although I have no reason to believe they were deficient in some way.77 They were consistent with the certificates of capacity issued by his treating doctor over the period. It would have been desirable for the full reports to have been provided to Mr Kothandan for his information, if for no other reason than they would have provided useful information for his own treating doctors. However, I am satisfied that there was adequate information about the opinions of Dr Doig and Associate Professor Damodaran in the reports for Mr Kothandan to respond if he wished.
[89] On the day of dismissal, Ms Sharma asked Mr Kothandan if he had obtained the doctor’s reports and he said no. She advised that the medical information she had showed he would not be able to return to pre-injury duties and asked if there was a reason not to terminate his employment. Mr Kothandan answered no, except that the specialist opinion he was seeking had not been considered. Mr Kothandan asked for specialist opinions he was seeking to be considered. His employment was them terminated. 78
[90] The specialist appointments Mr Kothandan was proposing had been scheduled for 4 and 11 November 2017. The meeting had been delayed until after that time. No further medical opinion was provided to Transdev. Other than Mr Kothandan’s evidence that on 11 November 2017, Dr Khan, Orthopaedic Surgeon, could not start treatment because he had no approval from Allianz, there is no evidence before me that any further medical opinion was obtained by Mr Kothandan either before or after the dismissal which Transdev could have considered had it not acted when it did. 79
[91] I am also not satisfied that additional time, or more information or opinion would have made any difference to the outcome. The medical evidence all tends to the conclusion that at relevant times, Mr Kothandan did not have the medical capacity to work as a bus driver. Dr Doig’s report after the dismissal reinforced that conclusion and it is likely that additional specialist opinions would have done the same.
[92] I am satisfied that Mr Kothandan was given an opportunity to respond to the reason for dismissal relating to his capacity for work as a bus driver.
Was there any unreasonable refusal by Transdev for Mr Kothandan to have a support person to assist with discussions relating to the dismissal?
[93] The evidence establishes that Mr Alexander, TWU delegate, attended the meeting on 16 October 2017 where Mr Kothandan was asked to obtain further medical opinions for Transdev because his employment was under review.
[94] There was a dispute about whether the appropriate support person was provided at the subsequent meeting on 13 November 2017.
[95] The Act does not require an employer to provide a support person in discussions relating to dismissal, or to provide the particular person an employee requests. An employee is free to nominate and arrange for their preferred support person and if that nomination is refused, an issue may well arise. However, that is not what happened here. Ms Sharma took on the task of arranging a support person for Mr Kothandan, and in doing so, sought to accommodate his preference for Mr Alexander to attend. Mr Alexander did not make himself available for the meeting and suggested she call Mr Lean instead, as he usually dealt with employment reviews. She then arranged for Mr Lean to attend the meeting. Mr Kothandan disagreed with Ms Sharma’s account, but he was not party to the conversation between Ms Sharma and Mr Alexander. I accept Ms Sharma’s evidence of what Mr Alexander said.
[96] According to Ms Sharma, Mr Lean is a union official with experience in matters of this kind and I have no reason to doubt it. Mr Lean attended the meeting on 13 November 2017 for Mr Kothandan.
[97] There is no evidence of any refusal by Transdev for Mr Kothandan to have a support person in discussions relating to his dismissal at any time. I am satisfied there was no unreasonable refusal to allow Mr Kothandan to have a support person assist in discussions about the dismissal.
Was Mr Kothandan warned about unsatisfactory performance?
[98] Mr Kothandan’s dismissal was not related to unsatisfactory performance, but rather to his capacity for work. This criteria is not relevant to the consideration of the matter.
The size of the employer’s business and access to dedicated human resources management specialists or expertise
[99] At the time of the dismissal, Transdev employed approximately 1000 employees. It had established systems, policies and processes, 80 as well as relationships with various providers to assist in managing workers’ compensation claims. It employed experienced staff including Ms Code who, as Health Services Manager, was responsible for the management of all aspects of WorkCover, rehabilitation and return to work. Each of these factors together ensured a comprehensive approach to the management of Mr Kothandan’s claim over a period of almost 18 months.
[100] I find the size of Transdev’s enterprise and its access to dedicated human resources management expertise had a positive impact on the procedures followed in effecting the dismissal.
Other relevant matters
[101] Mr Kothandan said he was not given the chance to rehabilitate by Transdev and was not given appropriate medical treatment at all. In light of the history of the matter, I am unable to agree with either proposition. It is true that management of his condition and his claim has taken time. I accept that the time his claim was made and approved would have been a stressful time for Mr Kothandan and his family. He felt at a financial disadvantage and unsupported by Transdev because he was not regularly in contact with his colleagues. However, that is a relatively common experience for employees dealing with workers’ compensation claims because of the time it takes for claims to be assessed and approved. It was a circumstance that was largely out of Transdev’s control.
[102] There was a delay of almost one year in obtaining an MRI, which Mr Kothandan says was because Allianz did not approve funding for it and which Transdev says was due to Mr Kothandan’s anxiety about taking the scan. It is likely that the truth was a combination of the two. Once the MRI was finally obtained, Dr Doig was able to confirm his original diagnosis and pain management treatment was approved. 81
[103] The efforts to rehabilitate Mr Kothandan were substantial but ultimately unsuccessful. Over a period of 18 months, Transdev took reasonable steps to support Mr Kothandan in his return to work when it had the opportunity and the medical treatment he received appears to have been based on, and consistent with, medical advice. Ms Martinez supported him over this time as his rehabilitation consultant. Allianz accepted his claim and he received weekly compensation and payment of his medical bills. 82 Transdev was not obliged to maintain his employment indefinitely in circumstances where he could no longer do the job he was employed to do. I am satisfied that Transdev gave Mr Kothandan a chance to rehabilitate and access to appropriate medical treatment.
[104] Mr Kothandan alleged that Transdev did not provide a safe workplace. He pointed to Transdev’s Safety Charter which includes a phrase along the lines of “to ensure all employees return home from work safely everyday”. That is no doubt an aspirational statement rather than a literal promise to transport employees home each day, as Mr Kothandan appears to have considered in connection with the incident on 28 March 2017.
[105] Mr Kothandan alleged that Transport Safety Victoria and Public Transport Victoria had concerns about the safety of Transdev maintenance and equipment. However, there is no evidence of those concerns before me and I make no findings about them.
[106] Mr Kothandan alleged that the number of WorkCover claims against Transdev and subsequent dismissals reflected the unsafe working environment it provided. Again, there is no evidence of that before me. Each case turns on its own facts and circumstances. I am not satisfied that the allegation is relevant to this case.
[107] Mr Kothandan expressed concerns for his family and both his and their future in connection with his workplace injury. Those are understandable and well-placed concerns which reflect the priority he places on providing for his family. While he feels that Transdev’s failure to provide a safe working environment was the cause of his uncertain future, the evidence in this matter also points to pre-existing conditions which were aggravated during the employment, in the form of degeneration in the cervical spine and anxiety state. 83 Mr Kothandan had worked as a bus driver prior to Transdev.84 As his diagnosis occurred during employment with Transdev, it is unsurprising that he attributes blame to it. Certainly, employment with Transdev was a contributing factor to the condition he is now managing. I am not satisfied Transdev can be said to be wholly and solely responsible.
[108] Mr Kothandan drew a link between his wife’s fire accident and the stress of his situation at work on family members at the time. The accident was no doubt a difficult experience for all concerned. However, it is hard to see how Transdev can be held accountable for the accident in circumstances where Mrs Manoharan was not an employee of Transdev and was injured cooking dinner at home. 85
[109] Mr Kothandan referred to the Disability Discrimination Act 1992 as providing “that an employer will not have unlawfully discriminated against an employee if, because of the disability, the employee would be unable to carry out the inherent” requirements of the role. No further submission was made on this question and it appears to me to be consistent with my findings in this case.
[110] Mr Kothandan said the dismissal was harsh because Transdev did not consider his past work ethics and behaviour profile when making the decision to dismiss him. Other than in connection with his participation in the return to work plan, Mr Kothandan’s prior work ethic or behaviour was not in question in the proceeding and there is no evidence of any concerns about it. Ultimately, it was not relevant to the issue of whether Mr Kothandan could perform the inherent requirements of his role. As difficult as it may be for Mr Kothandan to accept, Transdev was entitled to make the decision that it did. I do not consider that the dismissal was harsh as a result.
[111] Mr Kothandan’s dismissal did not bring his access to workers’ compensation to an end. Despite dismissal, medical treatment was continuing at the time of the hearing and treatment for pain management had recently been made available. He was participating fortnightly in the New Employment Service program to assist in his transition to other employment. 86
[112] Having considered each of the matters specified in section 387, I am satisfied that the dismissal of Mr Kothandan was not harsh, unjust or unreasonable. Accordingly, I find Mr Kothandan’s dismissal was not unfair. The application is dismissed.
COMMISSIONER
Appearances:
V Kothandan on his own behalf
S Baker for the Respondent
Hearing details:
2018.
Melbourne:
March 13.
Printed by authority of the Commonwealth Government Printer
<PR601966>
1 AE412056
2 Fair Work Act 2009 (Cth), s.385
3 Form F3 filed on 20 February 2018
4 Fair Work Act 2009 (Cth), s.388
5 Fair Work Act 2009 (Cth), s.23
6 Exhibit A2
7 Audio recording of hearing, 13 March 2018
8 Exhibit A2
9 Exhibit R4, Medical Certificate from Dr Peter Williams, Duff Street Medical Clinic, 13 July 2016
10 Exhibit R4
11 Exhibit A2; R4, Attachment A
12 Exhibit R4, Attachment B
13 Exhibit A8
14 Exhibit A2; A8
15 Exhibit A8
16 Exhibit R4, Attachment D
17 Exhibit R2
18 Exhibit R4, Attachment A
19 Exhibit A2; R1
20 Exhibit R4, Attachment E
21 Exhibit R3
22 Respondents Response to Directions filed 21 March 2018
23 Exhibit R4, Attachment G
24 Exhibit A8
25 Exhibit A8
26 Exhibit R4, Attachment G
27 Exhibit R4, Attachment Ga
28 Exhibit R4, Attachment Ga
29 Exhibit R1, Attachment C
30 Exhibit R1, Attachment C
31 Exhibit R4, Attachment Ga
32 Exhibit R1, Attachment C
33 Exhibit R1, Attachment D
34 Exhibit A2
35 Exhibit R1, Attachment E
36 Exhibit R1, Attachment E
37 Exhibit R4, Attachment H
38 Exhibit R1, Attachment G
39 Exhibit A8
40 Exhibit R1, Attachments G; K
41 Exhibit R1, Attachment K
42 Exhibit R1, Attachment I
43 Exhibit R1, Attachment K
44 Exhibit R1, Attachment K
45 Exhibit R1, Attachment K
46 Exhibit R1, Attachment K
47 Exhibit R1, Attachment K
48 Exhibit A5
49 Exhibit R1, Attachment L
50 Exhibit R1, Attachment L
51 Exhibit A2, Exhibit R4
52 Exhibit R4, Attachment J
53 Exhibit R1, Attachment L
54 Exhibit A2, Exhibit R4, Attachment I
55 Exhibit R1, Attachment M
56 Exhibit R4
57 Exhibit R4
58 Filed with the Form F2
59 Exhibit A8
60 [1995] HCA 24; (1995) 185 CLR 410 at 465
61 Form F2, Attachment: Letter of termination, 13 November 2017
63 Exhibit R4, Attachment X
64 Exhibit R4, Attachment X
65 Exhibit R4, Attachment X
66 Exhibit R4, Attachment X
68 Exhibit R4, Attachment K
69 Exhibit R1, Attachments G; K
70 Exhibit A8
71 2001 FCA 1031
73 Exhibit R4, Attachment I
74 Exhibit A2
75 Exhibit R4
76 Exhibit A8
77 Exhibit R1, Attachment K
78 Exhibit R4; Audio recording of hearing, 13 March 2018
79 Exhibit R4; Audio recording of hearing, 13 March 2018
80 Exhibit R4, Attachment G
81 Audio recording of hearing, 13 March 2018; Exhibit R1, Attachment E; Exhibit A8
82 Audio recording of hearing, 13 March 2018
83 Exhibit A8
84 Audio recording of hearing, 13 March 2018
85 Exhibit A1
86 Audio recording of hearing, 13 March 2018