[2018] FWC 569
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Ellen Brooks
v
Wambo Open Cut Pty Ltd
(U2017/9660)

COMMISSIONER SAUNDERS

NEWCASTLE, 25 JANUARY 2018

Application for an unfair dismissal remedy – valid reason – incapacity to perform the inherent requirements of a position – whether terminated in a period of protection for injured employees under workers’ compensation legislation – procedural issues – dismissal harsh and unreasonable – compensation ordered.

[1] Ms Ellen Brooks was injured at work on 26 March 2015 when the haul truck she was driving in a coal mine hit a pot hole. As a result of the injury, Ms Brooks was absent from work for some time and undertook suitable duties. Ms Brooks has not performed any work since about 9 August 2016. Wambo terminated Ms Brooks’ employment by a letter dated 21 August 2017, on the basis that she could not perform the inherent requirements of her position.

[2] On 5 September 2017, Ms Ellen Brooks lodged an application pursuant to s.394 of the Fair Work Act 2009 (Act) alleging that the termination of her employment with Wambo Open Cut Pty Ltd (Wambo) was harsh, unjust and unreasonable. Wambo denies those allegations.

Hearing

[3] This matter was heard by me on 5 December 2017. Mr Kentish, National Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU), appeared at the hearing for Ms Brooks. Mr Williams, solicitor, of Minter Ellison Lawyers appeared, with permission, at the hearing for Wambo.

[4] Ms Brooks gave evidence in support of her claim. Wambo adduced evidence in support of its case from Mr Geoff Moore, Open Cut Manager of Wambo Open Cut Mine, and Mr Albert Scheepers, General Manager of the Wambo Mine Complex.

Factual background

[5] Ms Brooks commenced employment with Wambo at the Wambo Open Cut Mine as an Open Cut Operator on 16 December 2013. 1 The Wambo Open Cut Mine has been operated by Peabody Energy Australia Coal Pty Ltd (Peabody Energy) since April 2013 when it took over as the operator of the mine from Downer EDI Mining Pty Ltd.2

[6] Ms Brooks’ employment has been covered by the Peabody Energy Australia Wambo Open Cut Enterprise Agreement 2015 (Enterprise Agreement) since 15 December 2015. 3 Prior to that date Ms Brooks’ employment was covered by the Downer EDI Mining Wambo Enterprise Agreement 2011 (Downer Agreement).

[7] In the role of Open Cut Operator Ms Brooks reported to a Mining Supervisor at the Wambo Open Cut Mine. The Mining Supervisor reported to a Production Superintendent and the Production Superintendent reported to the Open Cut Manager. Mr Moore has been the Open Cut Manager since April 2013. 4 Mr Moore reports to the General Manager. Mr Scheepers has been the General Manager since 1 April 2016.5

[8] Open Cut Operators at the Wambo Open Cut Mine are rostered to work four 10 hour day shifts (6.00am – 4.30pm) or night shifts (4.30pm – 3.00am), with one 30 minute break per shift. In the role of Open Cut Operator Ms Brooks was responsible for operating a haul truck in an open cut environment. She spent approximately 90% of her time driving haul trucks and the remaining 10% of her time performing general pit tasks such as cleaning the trucks and light vehicles, and installing delineators and signage. The work required to be undertaken by an Open Cut Operator at the Wambo Open Cut Mine is continuous, which means there are limited opportunities for breaks other than the 30 minute break which is allocated for each shift. The duties and tasks of an Open Cut Operator include the following:

[9] After being injured at work on 26 March 2015, Ms Brooks continued to work for a period of time and then lodged a workers’ compensation claim in connection with her absence from work as a result of the injury. 7 Ms Brooks’ claim for workers’ compensation was accepted by the insurer and she commenced receiving workers’ compensation payments and accident pay under the Downer Agreement and Enterprise Agreement respectively from 28 July 2015.8

[10] Following Ms Brooks suffering from the work injury she was assigned a Return to Work (RTW) Specialist from Wambo to develop and work with her in relation to her return to work plan. Ms Victoria Hellyer (née Darcy) and Ms Danielle Stein were consecutively assigned as Ms Brooks’ RTW Specialist. 9

[11] During the period 28 July 2015 to about 3 August 2016, Ms Brooks performed suitable duties at Wambo. When Ms Brooks performed suitable duties for less than 40 hours per week she received accident pay for the difference between her regular pay and the pay she received for suitable duties.

[12] Ms Brooks gave evidence that on 3 August 2016 she was advised during a meeting with Mr Moore, Ms Hellyer and Ms Zoe Ansley, CFMEU Site Delegate, that Wambo had determined to withdraw suitable duties from her. Ms Brooks was provided with a letter from Wambo dated 3 August 2016 which provided as follows:

“We refer to our letter to you dated 26/07/16 in which we asked you to obtain a prognosis report from Dr Tame to assist the Company to make an informed decision about your return to work program and employment.

We note your response by email dated 28/07/16 in which you advised that you have "provided authorisation for the company to communicate with Dr Tame ... for the purposes of management of (your) injury and workers compensation claim". Unfortunately this authority is not sufficient to meet our needs as the purpose of the request for a prognosis report is also to assist our Human Resources Department to make decisions regarding your ongoing employment, should it be advised that you will be unable to return to the inherent requirements of your role as an Open Cut Operator.

As such, we reiterate our request that you provide Dr Tame with the authority to respond to our letter dated 26/07/16.

Should you decline to provide this authorisation, we will arrange for you to be assessed by an independent Occupational Physician in order to obtain this advice and the Company will proceed to make a decision based on the information we have on hand for that purpose.

As you are aware, we do not have any permanent light or alternate duties. These are only available as part of the rehabilitation program with the ultimate goal of returning an injured employee to his/her pre-injury duty. As you have been unable to successfully upgrade to your full pre-injury duties over a period of sixteen months, it would appear that unfortunately your rehabilitation program may not be successful. As such, we hereby advise that we no longer have suitable duties available for you and you will be off roster until such a time as you can undertake a reasonable level of pre-injury duties.

You are required to continue to provide medical certificates during this time.”

[13] Mr Moore gave evidence that the withdrawal of suitable duties from Ms Brooks occurred in August 2016 and followed a meeting between Mr Scheepers, Ms Carolyn Lowery, Manager Workers’ Compensation, and himself. Mr Moore says that during the meeting it was agreed that Ms Brooks was not progressing significantly in her return to work plan towards her pre-injury duties or working hours and it was appropriate in the circumstances to withdraw suitable duties from Ms Brooks. 10 Mr Moore says that during the meeting Ms Lowery noted that Ms Brooks was pregnant but denies that her pregnancy had any bearing on the decision to withdraw suitable duties from Ms Brooks. I accept Mr Moore’s evidence in that regard. His evidence is supported by the fact that Ms Brooks had regressed on a number of occasions in terms of her ability to undertake particular tasks and work particular hours, which formed the basis for the decision to withdraw suitable duties and give Ms Brooks an opportunity to focus on her recovery on a full-time basis.

[14] Since about 9 August 2016, Ms Brooks has not performed any duties at Wambo. 11

[15] On 23 November 2016, the payment of the first 39 weeks of weekly workers’ compensation benefits expired, according to Coal Mines Insurances records. 12

[16] On 7 December 2016, Ms Brooks applied for paid parental leave for the period from 7 March 2017 to 11 July 2017. 13 The paid parental leave was sought pursuant to Peabody’s Parental Leave Policy.14

[17] On 24 February 2017, Ms Brooks gave birth to her son and commenced a period of 18 weeks’ paid parental leave.

[18] On 7 March 2017, Coal Mines Insurance wrote to Ms Brooks and advised, inter alia, as follows:

“We refer to your compensation benefits and place you on notice that we will be reducing those payments noting that you have now commenced a period of maternity leave. The legislation allows for an insurer to exercise their discretion to reduce a payment of weekly payments for any period of incapacity where a worker would not have been in employment in any event had they not been injured.

In this regard, your entitlement to weekly compensation for your period of maternity leave will be reduced to $100 per week.” 15

[19] On 9 March 2017, Ms Brooks’ solicitors in relation to her workers’ compensation claim, Slater and Gordon Lawyers, wrote to Coal Mines Insurance querying the interaction between the payment of $100 per week and accident pay. Slater and Gordon Lawyers did not receive a reply from Coal Mines Insurance in relation to the query despite a number of follow up emails being sent to Coal Mines Insurance. 16

[20] On 30 June 2017, Ms Brooks’ period of paid parental leave ceased. In the period from 30 June 2017 to 13 July 2017 Ms Brooks was certified by her general practitioner as fit for suitable duties for eight hours per day three days per week but, in accordance with the previous determination made by Wambo, no suitable duties were provided to her during that time. 17

[21] Ms Brooks provided Wambo with a medical certificate dated 13 July 2017 from her general practitioner, Dr Omer Amir. That certificate did not certify Ms Brooks as fit for pre-injury duties, but it did refer to the fact that Ms Brooks was “awaiting surgery” and stated that she had capacity for some type of employment from 13 July 2017 to 31 August 2017 for eight hours, three days per week. The certificate also imposed various conditions and restrictions on her capacity to undertake particular tasks and set a next review date for Ms Brooks as 31 August 2017.

[22] On 21 July 2017, Mr Moore gave evidence that he caused a letter to be sent to Ms Brooks in the following terms:

“We note since 4th April 2015 you have been unable to perform your full work duties without any ongoing restrictions.

Since this date you have been engaged in a rehabilitation program with the objective to return you to your full work duties.

As you are aware, we do not have any permanent light or alternate duties. These are only available as part of the rehabilitation program with the ultimate goal of returning an injured employee to his/her pre-injury duty.

Upgrades in your capacity over the last twenty-seven months have been varied. On occasion slowly progressive [sic] such as an increase in truck operator hours. Then also regressive such as decline in hours of work, with a request from the Doctor to seek permanent office duties.

On the 17th of January the District Court registered and communicated your actions in seeking damages for loss of earnings as a result of your inability to return to your current role as a plant operator.

Therefore we request that you provide us by 4:00pm on Friday 11th August with information from your medical provider about your prognosis for returning to your full unrestricted employment duties including when this will occur, together with a medical certificate supporting your working capacity.

If you are unable to advise us by this date when you will be in a position to return to your full work duties, we will have no alternative but to review our ability to provide you with suitable duties…”

[23] I accept Ms Brooks’ evidence that she did not receive the letter from Wambo addressed to her dated 21 July 2017. Ms Brooks gave evidence, which I accept, that the address on the letter dated 21 July 2017 is her previous address at which she has not lived since about June or July 2015. Ms Brooks contends, and I accept, Wambo was aware of her current address (as at 21 July 2017) because she had received correspondence from Wambo at her current address and Ms Melissa Harris, Production Clerk, had confirmed on 8 July 2016 by email that Ms Brooks’ new address was in Wambo’s records. 18

[24] Mr Moore gave evidence that the letter dated 21 July 2017 was prepared by Ms Stein and he reviewed and made some changes to it before signing the letter. Mr Moore says he then handed the signed letter back to Ms Stein and she posted it to Ms Brooks. 19 Mr Moore maintains that he is not aware where the address on the letter came from and says that he was not aware at the time if or when Ms Brooks had changed address, however he now accepts that the letter was incorrectly sent to Ms Brooks’ previous address.20 Mr Moore gave evidence that to the best of his recollection the letter was not returned to Wambo.21

[25] As a result of Ms Brooks not receiving the letter dated 21 July 2017 she did not provide Wambo with information from her doctor or any other source about her prognosis for returning to full unrestricted employment duties including when this would likely occur, nor did she provide any other material or information in response to the letter.

[26] On 14 August 2017, Ms Brooks underwent a microsurgical discectomy in relation to her back injury. 22 Mr Moore and Mr Scheepers contend that they were not aware that Ms Brooks was undergoing surgery at that time. Ms Brooks points to the fact that her medical certificate dated 13 July 2017, which was provided to Wambo, stated she was “awaiting surgery” and she had also informed Ms Stein in an email dated 1 August 2017 that she was having surgery on 14 August 2017.23 Although I accept the truth of the evidence given by Mr Moore and Mr Scheepers that they were not aware Ms Brooks was undergoing surgery on 14 August 2017, I am satisfied that Ms Brooks took reasonable steps to, and did, inform Wambo that she was going in for surgery on 14 August 2017.

[27] Mr Moore gave evidence that in late-August 2017 he had a meeting with Mr Scheepers and Ms Lowery regarding Ms Brooks’ employment. He says that at that time he considered Ms Brooks had not demonstrated an ability to return to her pre-injury duties and there was no suitable alternative position at Wambo that Ms Brooks could perform on a permanent basis having regard to her skills and experience and there were no adjustments that could be made to the Open Cut Operator role that would have enabled Ms Brooks to return to her position, particularly in circumstances where truck driving accounted for 90% of her duties. 24 Mr Scheepers gave evidence to a similar effect.

[28] Coal Mines Insurance informed Wambo that Ms Brooks’ 78 week period of incapacity would end on 23 August 2017.

[29] On 21 August 2017, Mr Scheepers sent a termination letter to Ms Brooks which relevantly provided as follows:

“As you are aware, you have been unable to perform your role as an Open Cut Operator at the Wambo Open Cut mine for an extended period of time, due to medical incapacity.

During this time, Peabody Energy Australia Coal Pty Ltd and Wambo Coal Pty Ltd (together, Peabody) has been working with you with the goal of you returning to the position of Open Cut Operator. Your most recent medical certificate, prepared by Dr Omar Amir, concludes that you are still not fit for pre injury duties.

In light of this medical certificate, Peabody has explored whether there are any suitable alterative positions to which you could be redeployed, however, there are no suitable positions available at this time.

As you are currently unable to perform the inherent requirements of the position of Open Cut Operator, and no reasonable adjustments can be made by Peabody, which would enable you to perform the inherent requirements of the position of Open Cut Operator, it becomes impossible for the obligations under the employment contract to be performed causing the contract to be frustrated. As a result of this, Peabody has decided to terminate your employment, effective Wednesday, 23 August 2017.

In accordance with the Peabody Energy Wambo Open Cut Enterprise Agreement 2015, Peabody will pay three weeks in lieu of notice, as well as any other entitlements you may have into your nominated bank account.

I would like to emphasise that the termination of your employment is due to the circumstances mentioned above, and in no way reflects your work performance…” 25

[30] While the letter was dated 21 August 2017, I accept that it was not received by Ms Brooks at her home until 25 August 2017. 26 A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.27 By reason of Ms Brooks not receiving the letter until 25 August 2017, I find that the dismissal took effect on 25 August 2017.

Initial matters to be considered

[31] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Brooks’ application.

[32] There is no dispute between the parties and I am satisfied on the evidence that:

Was Ms Brooks’ dismissal unfair?

[33] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Brooks’ dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Ms Brooks’ dismissal (s.387(a))?

Legal principles

[34] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 28 The reason for the dismissal should be “sound, defensible and well founded”29 and should not be “capricious, fanciful, spiteful or prejudiced.”30

[35] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 31 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).32

[36] In J Boag and Son Brewing Pty Ltd v Allan John Button 33 a Full Bench of the Commission set out the proper approach to be taken in determining whether there is a valid reason based on the employee’s incapacity to perform the inherent requirements of the job:

“[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.

...

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

[37] In Jetstar Airways Pty Ltd v Neeteson-Lemkes34 a Full Bench of the Commission held (at [53]-[59]) as follows (references omitted):

“[53] …Consideration of the validity of that reason [related to capacity] 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…

[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. Thus in Dundovich v P&O Ports - a case which concerned the dismissal of an injured employee who was dismissed because, for the foreseeable future, he would not be able to perform all the duties of his position - a Full Bench of the Commission found that it was necessary to take into account a court judgment that the employee’s injury was work related, even though that judgment post-dated the dismissal, because the judgment was declaratory of facts and legal rights in existence at the time of dismissal. 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, 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:

“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.”

Valid reasons contended for by Wambo

[38] Wambo submits that it had a valid reason for Ms Brooks’ dismissal because:

[39] One of the reasons Ms Brooks submits that Wambo did not have a valid reason for her dismissal was because at the time of her dismissal she contends that she was protected from dismissal by Part VIII of the Workers Compensation Act 1987 (NSW) (WC Act). 36

Was Ms Brooks dismissed during a period of protection under the WC Act?

[40] Ms Brooks’ claim for workers’ compensation was accepted by the insurer and she commenced receiving workers’ compensation payments and accident pay under the Enterprise Agreement on 28 July 2015.

[41] Section 248 of the WC Act provides injured workers with protection against the termination of their employment within a defined period from their injury. It relevantly provides as follows:

248 Dismissal within 6 months of injury an offence

(1) An employer of an injured worker who dismisses the worker is guilty of an offence if:

(a) the worker is dismissed because the worker is not fit for employment as a result of the injury, and

(b) the worker is dismissed during the relevant period after the worker first became unfit for employment.

Maximum penalty: 100 penalty units.

(2) For the purposes of subsection (1), the

"relevant period" is:

(a) the period of 6 months after the worker first became unfit for employment, except as provided by paragraphs (b), (c) and (d), or

(d) if the worker (other than a worker referred to in paragraph (c)) is entitled under a Commonwealth industrial instrument (or was entitled under a Commonwealth industrial instrument as in force immediately before the commencement of Schedule 7 to the Workplace Relations Act 1996 of the Commonwealth) to accident pay as a result of the injury for a period exceeding that period of 6 months--the period during which the worker is (or the period during which the worker was) entitled to accident pay, whichever is the greater period.

"Accident pay" is an entitlement of the worker to payment by the employer, while the worker is unfit for employment, that is described as accident pay in the relevant industrial instrument.”

Relevant provisions of the Enterprise Agreement

[42] Clause 33 of the Enterprise Agreement provides as follows:

33. WORKERS' COMPENSATION AND ACCIDENT PAY

Any workers' compensation entitlements will be made directly from the workers' compensation insurer to the Company.

33.1 Entitlement

An Employee in receipt of weekly payment under the provisions of the applicable workers' compensation legislation as it relates to the coal industry will be entitled to receive accident pay from the Company subject to the following conditions and limitations.

33.2 Payment to be made during incapacity

The Company shall pay, or cause to be paid accident pay during the incapacity of the Employee, within the meaning of the applicable workers' compensation legislation:

a) Until such incapacity ceases; or

b) Until the expiration of a period of seventy eight weeks from the date of injury.

Whichever event will first occur, even if the Company terminates the Employee's employment within the period.

Where the Company gives notice of termination of employment to an incapacitated Employee on accident pay, the termination of employment may take place within the 78 week period, as long as the full 78 week period is paid out to the injured Employee.

33.3 Meaning of accident Pay

For the purpose of this clause accident pay from the date of signing of the Agreement means:

a) For the initial period of thirty nine weeks from the date of injury a weekly payment representing the difference between the weekly amounts of compensation paid to the Employee under the applicable workers' compensation legislation and the weekly amount that would have been received by virtue of this Agreement had the Employee been at work (Projected Roster Earnings) at the date of the injury.

b) For a further period of thirty nine weeks a weekly payment, representing the difference between the weekly amount of compensation paid to the Employee under the applicable workers' compensation legislation and the rate prescribed from time to time for the classification of the incapacitated Employee (i.e. Aggregated Annualised Wage) at the date of the injury (provided the latter amount is greater than the former amount).

33.4 Pro-rata payments

In respect of incapacity for part of a week the amount payable to the Employee as accident pay will be a direct pro rata payment.

33.5 When not entitled to payment

An Employee will not be entitled to any payment under this clause in respect of any period of paid or unpaid annual leave or long service leave or for any paid public holiday.

33.6 Redemptions

In the event that an Employee receives a lump sum in redemption of weekly payments under the applicable workers' compensation legislation, the liability of the Company to pay accident pay as herein provided shall cease from the date of such redemption.

33.7 Damages independent of the Acts

Where an Employee recovers damages from the Company or from a third party in respect of the said injury independently of the applicable workers' compensation legislation, such Employee shall be liable to repay to the Company the amount of accident pay which the Company has paid under this clause and the Employee shall not be entitled to any further accident pay hereafter.

33.8 Calculation of period

The seventy eight week period commences from the first day of incapacity for work which may be subsequent to the date of injury. Intermittent absences arising from the one injury are to be cumulative in the assessment of the seventy eight week limitation.”

[43] An “Employee” is defined in clause 7 of the Enterprise Agreement to mean “an Employee of Wambo Open Cut Pty Ltd, located at the Mine, to whom this Agreement applies.” The term “Mine” is defined in clause 7 of the Enterprise Agreement to mean “Wambo Open Cut”. There is no dispute that Mrs Brooks was, at the relevant time, an “Employee” within the meaning of the Enterprise Agreement.

[44] An equivalent provision to clause 33 of the Enterprise Agreement was set out at clause 5 the Downer Agreement, which was in operation at the date Ms Brooks’ started receiving accident pay on 28 July 2015.

Applicable principles of construction

[45] The principles that apply to the proper construction of an enterprise agreement were summarised by the Full Bench in AMWU v Berri Pty Limited 37 (at [114]) as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

Issue in dispute regarding period of protection

[46] There is no doubt that Ms Brooks was dismissed because she was “not fit for employment as a result of” a workplace injury within the meaning of s.248(1)(a) of the WC Act. There is, however, a dispute between the parties as to whether Ms Brooks was dismissed during the “relevant period” within the meaning of s.248(1)(b) of the WC Act, on the basis that she was entitled, so she contends, to a further period of accident pay under clause 33 of the Enterprise Agreement at the time she was dismissed. If so, it would follow that Ms Brooks’ dismissal was an offence within the meaning of s.248 of the WC Act, notwithstanding that clause 33.2 of the Enterprise Agreement contemplates the possibility of termination of employment within the 78 week period. A finding of such an offence would have a significant impact on whether there was a valid reason for Ms Brooks’ dismissal. 38

[47] It is not in dispute between the parties that as at the date of Ms Brooks’ dismissal on 25 August 2017 she had been paid an amount in respect of accident pay under the Enterprise Agreement that equates to 60 weeks’ pay. What is in dispute is whether the 18 weeks of paid parental leave that Ms Brooks took between 24 February 2017 and 30 June 2017 had the effect of extending her entitlement to accident pay under the Enterprise Agreement for the period of that leave. If the 18 weeks of paid parental leave had the effect of extending Ms Brooks’ entitlement to accident pay, then the parties agree that at the date of Ms Brooks’ dismissal she was entitled to be paid a further period of accident pay. Alternatively, if the 18 weeks of paid parental leave did not have the effect of extending Ms Brooks’ entitlement to accident pay, then the parties agree that the 78 week (“relevant”) period to which clause 33 of the Enterprise Agreement refers expired prior to her dismissal.

Submissions on period of protection

[48] Ms Brooks submits that pursuant to clause 33.8 of the Enterprise Agreement intermittent absences arising from the one injury are cumulative in calculating the 78 week accident pay period. 39 Ms Brooks contends that she had a number of intermittent absences from work that were not counted as part of the calculation of the number of weeks of accident pay to which she was entitled, including where she worked reduced hours performing suitable duties or where she had taken annual leave, compassionate leave or personal leave for a reason other than her work related injury.40 Ms Brooks submits that the period she was on paid parental leave should be dealt with in the same manner as those other intermittent absences.

[49] Wambo submits that it was not obligated to pay Ms Brooks’ accident pay pursuant to clause 33 of the Enterprise Agreement during the period she was on paid parental leave and the 78 week period of accident pay was not suspended or extended by the period Ms Brooks was on paid parental leave. Wambo relies on the following contentions in support of this submission:

[50] Wambo further submits that while the entitlement under clause 33 of the Enterprise Agreement is an industry standard, it is a very generous entitlement when compared to those which might apply in another industry. Wambo submits that in this case the ‘fairness’ of the dismissal should be determined against objective community standards, not just by reference to the standard in the coal mining industry. Wambo maintains that Ms Brooks’ dismissal was objectively fair when consideration is given to the following matters:

Consideration

[51] The combined effect of s.248 of the WC Act and clause 33 of the Enterprise Agreement is to afford an employee injured at work, such as Ms Brooks, with protection during the “relevant period” against the termination of her employment on the ground that she is not fit for employment as a result of the injury. The “relevant period” for Ms Brooks is the period during which she was entitled to “accident pay”. An employee has an entitlement under an applicable industrial instrument to “accident pay” from their employer while they are “unfit for employment” if the industrial instrument confers an entitlement “that is described as accident pay” on the employee.

[52] Clause 33.1 of the Enterprise Agreement confers an entitlement to “accident pay” on employees to whom the Enterprise Agreement applies, such as Ms Brooks, if the employee is “in receipt of weekly payment under the provisions of the applicable workers’ compensation legislation as it relates to the coal industry” subject to the conditions and limitations set out in clauses 33.3 to 33.8 of the Enterprise Agreement. Ms Brooks was in receipt of weekly payments from the workers’ compensation insurer during the relevant period. Ms Brooks even received $100 per week from the workers’ compensation insurer when she was in receipt of parental leave pay from Wambo pursuant to its policy. Neither party could explain why those $100 weekly payments were made by the insurer when Ms Brooks was on paid parental leave.

[53] It is apparent from clause 33.2 of the Enterprise Agreement that the obligation on an employer to pay “accident pay” to an employee only arises “during the incapacity of the Employee, within the meaning of the applicable workers’ compensation legislation”. There is no dispute between the parties and I accept on the evidence that Ms Brooks was, at the relevant times, incapacitated within the meaning of the WC Act. If Ms Brooks was not so incapacitated, she had no entitlement to accident pay and her dismissal could not have been an offence under s.248 of the WC Act.

[54] The obligation on Wambo to pay “accident pay” under clause 33 of the Enterprise Agreement ceases at the earlier of the cessation of the employee’s incapacity or the expiration of a “period of seventy eight weeks” (clause 33.2). There are issues of construction as to when the 78 week period commences and ends.

[55] As to the commencement of the 78 week period, clauses 33.2(b) and 33.3(a) refer to the “date of injury” as the commencement time, whereas clause 33.8 expressly states that the “seventy eight week period commences from the first day of incapacity for work which may be subsequent to the date of injury”. There is an obvious tension between these parts of clause 33, giving rise to an ambiguity in the construction of the provision. I agree with the submissions of both parties that the 78 week period commences, on the proper construction of the Enterprise Agreement, “from the first day of incapacity for work which may be subsequent to the date of injury”, for the following reasons:

[56] The parties agree that Ms Brooks’ first day of incapacity for work following the incident on 26 March 2015 was 28 July 2015. Accordingly, 28 July 2015 was the commencement of the 78 week maximum period of incapacity for Ms Brooks.

[57] As to the when the 78 week period ends, it is plain from the reference in clause 33.8 to the accumulation of “intermittent absences arising from the one injury … in the assessment of the seventy eight week limitation” that the 78 week period may be comprised of several absences, as distinct from a single continuous absence, and may therefore end later than 78 weeks after the “first day of incapacity for work”. However, the clause is ambiguous because it does not specifically address a situation in which an employee is, in effect, absent from work for two reasons, one of which is an incapacity due to injury and the other being an approved form of leave such as paid or unpaid annual leave or long service leave or paid parental leave.

[58] As one might expect, clause 33 of the Enterprise Agreement is not unique to the Wambo Open Cut Mine. Clause 33 is in almost identical terms to clause 18 of the Black Coal Mining Industry Award (Black Coal Award). The only material difference between the provisions is the inclusion of unpaid annual or long service leave (as well as paid annual or long service leave) in clause 33.5 of the Enterprise Agreement.

[59] Clause 18 of the Black Coal Award has a long history. From as early as 1973, the Coal Mining Industry (Miners) Award 1973, New South Wales 45 included accident pay provisions in clause 25 thereof. The maximum period of accident pay for incapacity at that time was 26 weeks. The provisions in that award did not address intermittent absences arising from the one injury, nor did they contemplate an extension of the end of the 26 week maximum period.

[60] On 26 June 1973, the Coal Industry Tribunal made the following ruling in relation to accident pay provisions in the coal mining industry award in New South Wales: 46

“6. Ordinarily injury and incapacity are concurrent and the maximum period of 26 weeks for which accident pay is required to be made in respect of any injury commences to run from the date of injury. However, in a case where the incapacity for work arises on a date subsequent to the date of injury the period of 26 weeks is to run on and from the first day of such incapacity. Intermittent absences arising from the one injury are to be taken into account in the assessment of the 26 week limitation. But where there is a fresh injury the period of 26 weeks shall commence to run from the date of such fresh injury.”

[61] On 19 February 1980, the Coal Industry Tribunal made an order extending the accident pay provisions in coal mining awards in New South Wales and Queensland on the basis that “accidents of a serious nature are an unfortunate feature of the industry, and adequate provision for a person injured in the industry is a proper feature of the employer/employee relationship.” 47 The order extended the maximum period of accident pay for incapacity to 78 weeks.

[62] On 25 September 1980, the Coal Industry Tribunal considered arguments in relation to the accident pay provisions in clause 44 of the Coal Mining Industry (Miners) Award 1973 Queensland48 One argument raised in those proceedings by Mr Lawrie on behalf of the Queensland Coal Owners Association was “whether the period of 78 weeks was fixed from the day of injury or incapacity as contended for by Mr Lawrie or whether the 78 weeks might be an intermittent period, that is the incapacity might abate then return and as a result payments under the clause, while not exceeding 78 weeks overall, might nevertheless extend over the calendar period greater than 78 weeks.” The Coal Industry Tribunal found against Mr Lawrie’s interpretation and instead accepted an argument put forward by Mr Peterson behalf of the Coal & Shale Employees Federation. The Coal Industry Tribunal referred to the decision made by it on 26 June 1973 in relation to the coal mining award in New South Wales and “intermittent absences arising from the one injury”49 and, for the same reasons, directed that the Queensland award “be applied so as to provide for intermittency of incapacity over a period totalling 78 weeks”.50

[63] The prohibition on the termination of an employee’s employment during the accident pay period was removed as a term of the black coal mining industry award by an award simplification decision made by Justice Boulton on 26 May 1998 51 because it was not a permitted matter. The prohibition on termination in the award was replaced with a requirement that the employer had the right to terminate an employee’s employment when the employee was in receipt of accident pay but the employer was required in the circumstances to continue to pay accident pay for the duration of the incapacity or 78 weeks, whichever came first.

[64] Although the prohibition on termination during the accident pay period was removed from the award, in 2000 the New South Wales and Queensland governments amended the relevant provisions of state industrial statutes to increase the period of protection for an injured employee from 26 weeks to any longer period of accident pay to which the injured employee was entitled under an industrial instrument. The protection of injured workers provisions in the Industrial Relations Act 1996 (NSW) were later moved to the workers compensation legislation as a result of the introduction of the Federal government’s WorkChoices legislation.

[65] It is clear from the foregoing summary of the history of the relevant provision 52 that the intermittent absence provision53 was introduced for the purpose of addressing the question of whether the end of the 78 week maximum period of incapacity should be extended in circumstances where “the incapacity might abate then return”. Given this historical context and the absence of any other provision in the Enterprise Agreement specifically addressing the impact of approved leave on the end date of the maximum 78 week period,54 the second sentence of clause 33.8 of the Enterprise Agreement should not now be given a wider purpose than that which gave rise to its origin, thereby extending the end date of the maximum 78 week period by any period of approved leave such as parental leave, annual leave or long service leave at a time when the employee remains incapacitated.

[66] The following aspects of clause 33 also support Wambo’s contention that periods of parental leave, annual leave and long service leave during a period of incapacity do not extend the end date of the maximum 78 week period:

[67] There is no evidence to support a finding that Ms Brooks’ incapacity arising from her injury abated when she was on paid maternity leave and then returned after the conclusion of that period of paid maternity leave. I am satisfied on the evidence that Ms Brooks remained incapacitated for work as a result of her workplace injury during her period of paid parental leave in 2017, just as the parties agreed she had since August 2016. Indeed, if Ms Brooks had not been incapacitated since August 2016 she would not have been paid, nor entitled to be paid, accident pay during that time. The evidence in relation to Ms Brooks’ ongoing incapacity from August 2016 to her dismissal about a year later includes medical certificates provided by Ms Brooks to Wambo, Ms Brooks own evidence about her ongoing injury and inability to undertake her role as an Open Cut Operator, and the ongoing payments made to Ms Brooks by the workers’ compensation insurer. In the alternative, even if I held that there was insufficient evidence to support a finding that Ms Brooks remained incapacitated for work as a result of her workplace injury during her period of paid parental leave in 2017, the outcome of this issue would be the same. In particular, Ms Brooks is the party contending that she was dismissed during a period in which she was protected from dismissal under s.248 of the WC Act; she has the evidentiary onus to establish that she remained entitled to accident pay at the time of her dismissal. A lack of evidence as to ongoing incapacity during the period of parental leave would result in a finding that Ms Brooks had not satisfied that evidentiary onus.

[68] For the reasons set out in paragraphs [51] to [67] above, I find that the 18 week period during which Ms Brooks took paid parental leave and was also incapacitated from working by reason of her workplace injury did not extend the 78 week maximum period of incapacity. It follows that the period during which Ms Brooks was entitled to accident pay pursuant to clause 33 of the Enterprise Agreement expired prior to her dismissal. It is thus not necessary, in the context of this issue concerning whether Ms Brooks’ dismissal was an offence under s.248 of the WC Act, to make any findings about whether Wambo’s conduct in not ‘counting’ towards Ms Brooks’ accident pay entitlement any days for which she was engaged on suitable duties and was being paid for those duties and any days on which she was on paid annual or other leave (save for paid parental leave) was, as submitted by it, not in accordance with its strict requirements.

Other issues concerning valid reason

[69] I accept Mr Scheepers’ evidence that Ms Brooks provided Wambo with a medical certificate dated 18 August 2017 confirming that she had no capacity for work from 14 August 2017 to 27 September 2017. 55 Notwithstanding that the medical certificate to which Mr Scheepers refers was not tendered by either party, Mr Scheepers’ evidence in relation to it was unchallenged and was consistent with the following evidence:

[70] Accordingly, I am satisfied that Ms Brooks was not capable of performing the inherent requirements of her role as an Open Cut Operator at the date of her dismissal.

[71] As to whether Ms Brooks would be able to perform the inherent requirements of her role as an Open Cut Examiner at some time in the future, the evidence does not demonstrate that any health professional had positively expressed the view that Ms Brooks, based on her state of health at or before the dismissal, would be able to return to full duties at a future time. A vocational assessment report prepared by Rehab Management Pty Ltd was tendered by Ms Brooks. 58 That report is dated 19 September 2016 and was based in part on an assessment of Ms Brooks on 24 August 2016. It refers to her diagnosis as “Back Injury, L4 L5 disc protrusion with compression of L5 nerve root” and includes the following comments concerning her “expected recovery”:

[72] Given that the report by Rehab Management Pty Ltd was prepared about one year prior to Ms Brooks’ dismissal, it can only be given limited weight in the assessment of whether Ms Brooks would be able to perform the inherent requirements of her role as an Open Cut Examiner at some time in the future after her dismissal on 25 August 2017.

[73] In assessing the likelihood of Ms Brooks being able to perform the inherent requirements of her role at some time in the future after her dismissal it is not permissible to consider medical certificates prepared by Ms Brooks’ general practitioner after the date of her dismissal which relate to her capacity for work for a period of time commencing from the date of those certificates. Such medical certificates were founded upon a factual situation which came into existence after the date of Ms Brooks’ dismissal, namely her state of health at the time she was assessed and the medical certificates were prepared. The validity of that part of Wambo’s reason for dismissal which concerned Ms Brooks’ future capacity to perform her duties must be assessed by reference to her state of health, and any expert opinions expressed as to her state of health, as they were at the time of her dismissal. 59

[74] I am satisfied on the balance of probabilities that Ms Brooks was not likely to be able to perform the inherent requirements of her role as an Open Cut Examiner in the foreseeable future after her dismissal on 25 August 2017. The following facts support this conclusion:

[75] I accept Wambo’s evidence that there were no reasonable modifications to the role of Open Cut Operator that could have been made to facilitate Ms Brooks’ return to that role. The driving of haul trucks is the major component of that role and I accept Wambo’s evidence that there are no modifications that could reasonably be made to enable an employee with a serious and long-standing back injury, such as Ms Brooks, to return to work as an Open Cut Operator. I also accept Wambo’s evidence that there were no other suitable alternative roles into which Ms Brooks could have been redeployed.

Conclusion on valid reason

[76] For the reasons set out in paragraphs [34] to [75] above, I am satisfied Wambo had a sound, defensible and well-founded reason to dismiss Ms Brooks on 25 August 2017. I am therefore satisfied that Wambo had a valid reason to dismiss Ms Brooks related to her capacity.

Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))

[77] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 60, and in explicit61 and plain and clear terms.62 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[78] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 63

[79] Ms Brooks did not receive the letter dated 21 July 2017 sent by Mr Moore requesting her to provide information from her medical provider about her capacity by 4pm on 11 August 2017. 64 As a result of Ms Brooks not receiving the letter dated 21 July 2017 she was not given an opportunity to respond either in a meeting or in writing to Wambo’s concerns about her capacity.

[80] Ms Brooks was informed of the reasons for her dismissal in the letter of termination dated 21 August 2017, which she received on 25 August 2017. However, that was the first occasion on which Ms Brooks was notified that Wambo was considering terminating her employment on the basis of her capacity to perform the inherent requirements of the role of Open Cut Operator.  65

[81] On the basis of the facts set out above I am satisfied that Ms Brooks was not notified of the reasons for the termination of her employment before the decision was made to dismiss her, nor was she provided with an opportunity to respond to Wambo’s reasons for her dismissal related to her capacity.

Any unreasonable refusal to allow Ms Brooks to have a support person present (s.387(d))

[82] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[83] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”66

[84] There were no discussions held between Wambo and Ms Brooks relating to her dismissal. Accordingly, Ms Brooks did not have any occasion to request that a support person be present during any such discussions. It follows that there was no unreasonable refusal by Wambo to allow Ms Brooks to have a support person present to assist at any discussions relating to her dismissal.

Warnings about unsatisfactory performance (s.387(e))

[85] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[86] In this case, the reasons for dismissal related to Ms Brooks’ capacity, rather than her performance, so this consideration is not relevant.

Impact of size of Wambo on procedures followed in effecting the dismissal (s.387(f))

[87] Wambo operates an open-cut coal mine and, at the time of Ms Brooks’ dismissal, employed about 216 employees.

[88] I do not consider that the size of Wambo’s enterprise would be likely to impact on the procedures followed in effecting Ms Brooks’ dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[89] Wambo employed a number of human resource employees at the time of Ms Brooks’ dismissal, so this consideration is not relevant.

Other relevant matters (s.387(h))

[90] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[91] The procedure adopted by Wambo in the period leading up to Ms Brooks’ dismissal was deficient in a number of respects. Wambo was notified that Ms Brooks had changed her personal address well before her dismissal. Wambo had even sent correspondence to Ms Brooks’ new address. In those circumstances, there was no reasonable excuse for Wambo sending the letter dated 21 July 2017 to Ms Brooks’ previous personal address. In addition, given the importance of the decision Wambo was about to make in relation to Ms Brooks’ ongoing employment, an attempt should have been made to contact Ms Brooks by telephone or otherwise after Wambo did not receive any response from her to its letter dated 21 July 2017. Ms Brooks had maintained contact with Wambo during her absence from the workplace, including by providing a series of medical certificates, and it would have been a simple task for one of the human resources staff or a manager to telephone Ms Brooks before the decision was made to terminate her employment. Further, Ms Brooks notified Wambo in writing that she was due to undergo surgery on 14 August 2014, yet this fact was not conveyed to Mr Moore or Mr Scheepers, the principal decision makers in relation to the termination of Ms Brooks’ employment. These procedural deficiencies are significant in the context of this case because they resulted in a situation where Ms Brooks was not afforded an opportunity to provide Wambo with a report or other information from one or more of her treating doctors in relation to her capacity for work and prospect of returning to her role in the foreseeable future and Wambo made the decision to dismiss Ms Brooks without appreciating that she underwent back surgery about 11 days prior to her dismissal. I am satisfied that a reasonable employer in the position of Wambo would have delayed making a decision about whether or not to dismiss Ms Brooks until after her surgery on 14 August 2017 and a reasonable time post-surgery for Ms Brooks’ specialist, or some other appropriate medical practitioner, to provide an opinion as to the success or otherwise of the surgery and the likelihood of Ms Brooks recovering sufficiently to resume her duties as an Open Cut Operator in the foreseeable future.

[92] The impact of the dismissal has impacted negatively on Ms Brooks’ personal and economic circumstances. I accept Ms Brooks’ contention that due to her dismissal as a result of her work related injury she will find it difficult to obtain further employment, particularly in the mining industry. Ms Brooks is 28 years of age and is married with one child. 67

[93] Wambo submits that it did not take any action to dismiss Ms Brooks until about two and a half years after the incident on 26 March 2017, during which time Ms Brooks was paid, notwithstanding that Ms Brooks could not perform her usual duties during that time. Wambo contends that it provided extensive support to Ms Brooks after the injury occurred, including the payment of accident pay over a significant period of time. I accept that Wambo did provide support to Ms Brooks following the workplace incident on 26 March 2015, including by administering the accident pay scheme in a favourable way to Ms Brooks (e.g. Wambo did not ‘count’ towards Ms Brooks’ accident pay period any days for which she was engaged on light duties and paid for those duties), and did not rush to make a decision to dismiss Ms Brooks. These matters weigh in Wambo’s favour when assessing the fairness of the dismissal.

[94] There is no question that in the black coal mining industry accident pay benefits and the protections afforded to injured employees under the WC Act are more generous than in other industries. However, the fact that Wambo complied with its legal obligations thereunder does not, in my view, weigh in Wambo’s favour against a finding of unfairness in relation to Ms Brooks’ dismissal.

[95] Ms Brooks contends that Wambo failed to provide her with suitable duties in the period from about August 2016 to her dismissal in August 2017, save for the period when she was on maternity leave, and this failure impacted on the fairness of her dismissal. I do not accept this argument. I am satisfied that Wambo acted reasonably and in accordance with its obligations in providing suitable duties to Ms Brooks for a significant period of time, but then ultimately withdrawing those duties after Ms Brooks had regressed in terms of the duties and hours she was capable of working. For example, the provision of ongoing restricted duties for Ms Brooks beyond August 2016 in circumstances where she had been on such restricted duties for a significant period of time, had regressed in terms of the duties and hours she was capable of working, and overall was not moving forward towards a return to her pre-injury duties or pre-injury working hours was not “suitable employment” within the meaning of s 32A of the WC Act, was not “reasonably practicable” within the meaning of s 49(3) of the WC Act), was not “appropriate” within the meaning of clause 3.4 of Wambo’s Injury Management and Return to Work Program.

Conclusion as to whether the dismissal was unfair

[96] Having considered each of the matters specified in section 387 of the Act, my evaluative judgment is that Wambo’s dismissal of Ms Brooks on 25 August 2017 was harsh and unreasonable. Although Wambo had a valid reason for its decision to dismiss Ms Brooks, the procedural deficiencies associated with the procedure followed leading up to the dismissal 68 gave rise to substantive and practical unfairness for Ms Brooks. As a result of those procedural deficiencies, the decision to dismiss Ms Brooks was made on the basis of incomplete information and at a time shortly after she had undergone surgery, with the result that it would be difficult, if not impossible, at that time to make an assessment of the likelihood of Ms Brooks returning to her role as an Open Cut Operator in the foreseeable future. I am satisfied that an employer acting reasonably in the circumstances and with knowledge that Ms Brooks underwent surgery on 14 August 2017 would not have dismissed Ms Brooks on 25 August 2017.

Remedy

[97] In light of my findings that Ms Brooks was protected from unfair dismissal, and that her dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to her.

[98] Ms Brooks submits that reinstatement is appropriate in the circumstances. She is hopeful she will be able to return to work in some capacity however accepts that she cannot state exactly what duties she would be able to perform on her return to work because it would depend on the effectiveness of her surgery and her recovery. 69 Ms Brooks was certified by her general practitioner as having no work capacity for any employment in the period from 27 September 2017 to 25 October 2017.70 At the date of the hearing of this matter Ms Brooks was still in quite a lot of pain,71 was certified by her doctor as unfit for employment from 20 November 2017 until 18 December 2017, and had a series of appointments organised with a range of health professionals in the period between December 2017 and late March 2018.72

[99] Wambo submits that reinstatement would be inappropriate because:

[100] I am satisfied that reinstatement would be inappropriate in this case because it is clear on the evidence before the Commission that Ms Brooks did not, in December 2017, have any capacity to return to work with Wambo and the evidence suggests that it is not likely she would be able to return to work with Wambo in the foreseeable future.

[101] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 74

[102] Having regard to the fact that Ms Brooks has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate in all the circumstances of this case.

Compensation

[103] It is necessary therefore to assess the amount of compensation that should be ordered to be paid to Ms Brooks. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[104] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 75 The approach to calculating compensation in accordance with these authorities is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration Ms Brooks would have received, or would have been likely to receive, if she had not been dismissed (s.392(2)(c))

Ms Brooks’ anticipated employment period

[105] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 76

[106] Ms Brooks submits that if the Commission finds that an order for payment of compensation to her is appropriate in all the circumstances of this case she should be compensated for the 18 weeks’ of lost accident pay to which she claims an entitlement, together with an amount equal to the lost accumulated annual leave, personal leave and long service leave to which she would have been entitled if she remained in employment during that 18 week period. 77

[107] I find, in all the circumstances, that but for the termination of Ms Brooks’ employment on 25 August 2017 she would have remained in employment with Wambo for a period of 9 weeks from 25 August 2017 (i.e. until 27 October 2017). I make that finding for the following reasons:

Ms Brooks’ earnings in the anticipated period of employment

[108] Had Ms Brooks remained in employment from 25 August 2017 until 27 October 2017 she would have been absent from work because she did not have capacity for work and would have received statutory workers’ compensation benefits. Ms Brooks would not have received accident pay during that time because, according to my earlier findings, she was no longer entitled to accident pay at the time of her dismissal on 25 August 2017.

[109] In addition to receipt of statutory workers’ compensation benefits in the period from 25 August 2017 until 27 October 2017, during that time Ms Brooks would have continued to accrue annual leave and long service leave had she remained in employment with Wambo. As an employee in the black coal mining industry, Ms Brooks’ entitlement to long service leave is governed by the Coal Mining Industry (Long Service Leave) Administration Act 1992, the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992, and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 199279 That legislation creates a portable industry long service leave scheme. Both parties accept, and I find, that it would be appropriate to include as part of any compensation order an amount which reflects an additional period of qualifying service for long service leave in respect of the anticipated period of employment.

[110] In view of my finding that Ms Brooks would have remained in employment until 27 October 2017 had she not been dismissed on 25 August 2017, she would not have accrued any additional personal/carer’s leave under the terms of the Enterprise Agreement because such leave accrues on the employee’s anniversary date, 80 which for Ms Brooks was on 16 December 2017. Ms Brooks was paid out her accrued personal/carer’s leave on her termination in August 2017 in accordance with the terms of the Enterprise Agreement.81

[111] In the nine week period from 25 August 2017 to 27 October 2017, Ms Brooks would have accrued:

[112] I consider it appropriate to take the annual leave and long service leave Ms Brooks would have accrued in the anticipated period of employment from 25 August 2017 to 27 October 2017 into account as part of the remuneration Ms Brooks would have received, or would have been likely to receive, if she had not been dismissed under s.392(2)(c) of the Act. However, even if Ms Brooks’ accrued annual leave and/or long service leave during this period was not considered to be part of her remuneration under s.392(2)(c) of the Act, it would be relevant and appropriate to take such accrued annual leave and long service leave into account under s.392(2)(b) or (g) of the Act and the end result in terms of calculation of compensation would not change.

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f) and (g))

[113] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e). Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 83

[114] Ms Brooks received three weeks’ payment of wages in lieu of notice on the termination of her employment in August 2017 ($6,426.34). Given that Ms Brooks was paid three weeks’ wages in lieu of notice on her dismissal on 25 August 2017, I am satisfied on the balance of probabilities that Wambo would have paid her three weeks’ wages in lieu of notice if she had remained in employment until 27 October 2017 and been dismissed at that time. For that reason, the three weeks’ wages in lieu of notice ought not be subtracted from the compensation payable to Ms Brooks.

[115] Ms Brooks in fact received workers’ compensation payments in the period between the termination of her employment with Wambo on 25 August 2017 and the last date of hearing of this matter on 5 December 2017. They are the same weekly workers’ compensation payments Ms Brooks would have received had she remained employed by Wambo until in the period from 25 August 2017 to 27 October 2017. 84

[116] Accordingly, to put Ms Brooks in the position she would have been in but for the termination of her employment on 25 August 2017, 85 she should be paid $2,138.62.

Any other relevant matter (s.392(2)(g))

Discount for contingencies

[117] It is necessary to consider whether to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Brooks was subject might have brought about some change in earning capacity or earnings. 86 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[118] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 87

[119] Because I am looking in this matter at an anticipated period of employment which has already passed (25 August 2017 to 27 October 2017), there is no uncertainty about Ms Brooks’ earnings, capacity or any other matters during that period of time. In all the circumstances I have decided that it is not appropriate to discount or increase the figure of $2,138.62 for contingencies.

Other relevant matters

[120] Save for the matters to which I have referred in paragraphs [105] to [119] above, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.

[121] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

Viability (s.392(2)(a))

[122] No submission was made nor was any evidence adduced on behalf of Wambo, that any particular amount of compensation would affect the viability of Wambo’s business. No adjustment will be made on this account.

Length of service (s.392(2)(b))

[123] In all the circumstances, I consider that Ms Brooks’ relatively moderate period of service with Wambo (just over three years and eight months) does not in all the circumstances justify any increase or reduction to any amount of compensation otherwise calculated.

Mitigation efforts (s.392(2)(d))

[124] I am satisfied that Ms Brooks was not fit to work during the period 25 August 2017 to 27 October 2017 because of her ongoing medical condition. I will make no adjustment on this score.

Misconduct (s.392(3))

[125] Based on the findings I have made in this matter, Ms Brooks did not commit any misconduct, so this has no relevance of the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s.392(4))

[126] I note that in accordance with s.392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)-(6))

[127] The amount of $2,138.62 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Ms Brooks was entitled in her employment with Wambo during the 26 weeks immediately before her dismissal.

[128] In those circumstances, I am satisfied that there is no basis to reduce the amount of $2,138.62 by reason of s.392(5) of the Act.

Instalments (s.393)

[129] No application was made by Wambo for any amount of compensation awarded to be paid in the form of instalments, and I do not consider that payment by instalments is warranted.

Conclusion on remedy

[130] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $2,138.62. 88

[131] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $2,138.62 in favour of Ms Brooks is appropriate in the circumstances of this case. I will issue an order PR599880 to that effect.

tle: Seal of the Fair Work Commission with Member's signature - Description: Seal of the Fair Work Commission with Member's signature

COMMISSIONER

Appearances:

Mr A Kentish of the CFMEU for the Applicant.

Mr D Williams of Minter Ellison Lawyers for the Respondent.

Hearing details:

2017.

Newcastle:

December 5.

 1   Exhibit A1 at [3]

 2   Exhibit R1 at [2]

 3   Exhibit A1 at [5]

 4   Exhibit R1 at [6]

 5   Exhibit R2 at [1]

 6   Exhibit R1 at [8]-[13]

 7   Exhibit A1 at [7]; Exhibit R1 at [15]

 8   Exhibit R1 at [17]

 9   Exhibit A2 at [3]

 10   Exhibit R1 at [23]-[24]

 11   Exhibit A1 at [13iii]; Exhibit

 12   Exhibit A1, Attachment EB-7

 13   Exhibit A1, Attachment EB-11

 14   Exhibit A1, Attachment EB-13

 15   Exhibit A1, Attachment EB-18

 16   Exhibit A1 at [30]

 17   Exhibit A2, Attachment EB-G

 18   Exhibit A2 at [10]

 19   Transcript at PN378-392

 20   Transcript at PN374; Exhibit R1 at [35]

 21   Exhibit R1 at [34]

 22   Exhibit A1 at [2]

 23   Exhibit A2 at [22]

 24   Exhibit R1 at [38]-[39]

 25   Exhibit A1, Attachment EB-1

 26   Exhibit A1 at [3]

 27   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24]

 28   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 29   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 30   Ibid

 31   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

32 Ibid

 33   [2010] FWAFB 4022

 34   [2013] FWCFB 9075

 35   Respondent’s Outline of Submissions at [11(a)]

 36   Applicant’s Outline of Submissions at [28]-[31]

 37   [2017] FWCFB 3005

 38   J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022 at [29]

 39   Applicant’s Outline of Submissions

 40   Exhibit A1 at [12]

 41   Respondent’s Outline of Submissions at [73]

 42   Respondent’s Outline of Submissions at [75]-[77]

 43   WC Act, s.248(2)(a)

 44   CFMEU v Hadgkiss [2009] FCAFC 17 at [77]

 45   CR 2200

 46   CR 2233

 47   CR 2807

 48   CR 2903

 49   CR 2233; see paragraph [60] above

 50   CR 2903 (final paragraph)

 51   Print Q1205

 52   Clause 33 of the Enterprise Agreement

 53   Second sentence of clause 33.8 of the Enterprise Agreement

 54   As to which, see paragraph [66] below.

 55   Exhibit R2 at [28]

 56   Exhibit A2 at attachment EB-G

 57   Exhibit A1 at [13(v)]; Exhibit A2 at [18]

 58   Exhibit A2 at attachment EB-D

 59   Jetstar Airways Pty Ltd v Neeteson-Lemkes [2013] FWCFB 9075 at [55]

 60   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 61   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 62   Previsic v Australian Quarantine Inspection Services Print Q3730

 63   RMIT v Asher (2010) 194 IR 1 at 14-15

 64   See paragraph [23] above

 65   Exhibit A1 at [25]

66 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]

 67   Exhibit A1 at [1]

 68   As to which, see paragraph [90] above

 69   Exhibit A1 at [27]

 70   Exhibit A1 at attachment EB-4

 71   Transcript at PN111

 72   Transcript at PN85-91

 73   Respondent’s Outline of Submissions at [16]

 74   Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

 75   Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

 76   Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]

 77   Applicant’s Outline of Submissions dated 24 October 2017 at [54]

 78   Transcript at PN680-687

 79   See, too, clause 29.1 of the Enterprise Agreement

 80   Clause 27.1 of the Enterprise Agreement

 81   Exhibit A3

 82   Ms Brooks’ schedule of compensation claimed 0.5662 weeks’ pay for long service leave accrued over 18 weeks. 0.5662/18 = 0.031455/week

 83   Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [31]

 84   Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [19] & [27]

 85   Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

 86   Ellawala v Australian Postal Corporation Print S5109 at [36]

 87   Enhance Systems Pty Ltd v Cox PR910779 at [39]

 88   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].

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