[2018] FWC 7469
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Elaina Tito
v
Pilbara Iron Company (Services) Pty Limited
(U2018/9550)

DEPUTY PRESIDENT BEAUMONT

PERTH, 21 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 27 August 2018, Pilbara Iron Company (Services) Pty Limited (Rio) dismissed Ms Elaina Tito (Ms Tito) on the grounds of ill health. Subsequently, on 17 September 2018, Ms Tito made an application to the Fair Work Commission (the Commission) for a remedy in respect of her dismissal (the Application).

[2] Ms Tito had worked at Rio’s Robe Valley Operations as a full-time mobile plant operator driving haul trucks since September 2011. Initially, the position was residential, however, after a period Ms Tito requested to change to a Fly in – Fly out (FIFO) arrangement.

[3] In September 2013, Ms Tito sustained a neck injury whilst operating mobile plant. She returned to full fitness, and by January 2014 recommenced driving. However, by July 2016 she sustained a further neck injury, and shortly after had surgery. Post-surgery Ms Tito returned to work in her substantive role for a very short period (1 1/2hrs), but was unable to continue due to discomfort. Ms Tito was certified fit for alternative duties and during the period from July 2016 until May 2018 participated in three ‘return to work programs’ and successfully performed administrative duties.

[4] In the same period of July 2016 until May 2018, Ms Tito was reviewed by several medical specialists and general practitioners. Having considered the medical assessments, advice, and recommendations of these specialists and practitioners, Rio concluded Ms Tito could not safely drive a haul truck. On 10 May 2018, Rio initiated a redeployment process to place Ms Tito in an alternative position within its business. A position was found for which Ms Tito was fit and suitable and on 14 August 2018 it was offered to her. Ms Tito declined the position because the roster conflicted with her parental responsibilities.

[5] I have taken into account each of the matters specified in s 387 of the Fair Work Act 2009 (Cth) (the Act) and I am satisfied that based on Ms Tito’s incapacity, Rio had a valid reason for dismissing Ms Tito. I have not found that Ms Tito’s dismissal was unjust, unreasonable or harsh. Therefore, the Application is dismissed. My reasons for dismissing the Application are as follows.

Background

[6] From May 2013, Ms Tito worked in the Operations Department at the Mesa A mine site on an 8:6 FIFO roster working an average of 46 hours per week. 1

General duties of a mobile plant operator

[7] The role of a mobile plant operator included operating mobile equipment, such as haul trucks, loaders, dozers, excavators, graders, and water trucks. Mr David Robinson, Ms Tito’s Superintendent who managed her return to work after her neck injury and corrective surgery (Mr Robinson), said that generally speaking, the mobile plant operators worked an eight days on six days off, and seven nights on and seven nights off roster, on 12.5 hour shifts, and their duties included:

[8] The Standard Role Profile document for an Operator II – Mining Operations outlined the key accountabilities as:

Rio injury management policy

[9] Rio’s ‘Injury Management Work Practice’ stated that it provided ‘the mandatory requirements to support the implementation and conformance with Rio Tinto Health, Safety, Environment and Quality (HSEQ) Management Standard …’. 4 Its purpose was to outline the practices involved in the management of injuries and illnesses within Rio Tinto WA.5 It is a reasonably long document but suffice to say it contains key commitments and the minimum requirements to be met when managing illness or injury.

A cast of medical practitioners

[10] Before embarking on the chronology of Ms Tito’s injury management and her employment, it is timely to observe that there were several medical practitioners that assessed Ms Tito during the relevant period. While none were called to give evidence, their reports, medical certificates, and other correspondence was referred to during the course of the proceedings. To assist the reader, and in truth me, I have listed the names and titles of the medical practitioners below:

Medical and work history

[11] In late July 2016, Ms Tito sustained a neck injury. For the sake of completeness, it is observed that Ms Tito had previously injured her neck in 2013 operating a truck, but had fully recovered from that injury. In his report dated 25 January 2017, Mr Phillips of he described the injury as follows:

[12] Because of Ms Tito’s neck injury, Dr Kuan certified Ms Tito as unfit for the period 10 August to 22 August 2016, inclusive.

[13] On 7 September 2016, Dr Lewis performed surgery on Ms Tito’s neck and subsequently provided Dr Kuan with a summary of the operation by way of an operative note. Dr Kuan issued a medical certificate for Ms Tito dated 19 September 2016, that certified her unfit for the period 19 September until 28 September 2016. 7 A letter dated 7 October 2016 was later sent by Dr Lewis to Dr Kuan that stated, amongst other things, ‘Ms Tito has done very well following her procedure. She is cleared to return to her full usual duties’.8

[14] By medical certificate dated 14 October 2016, Dr Kuan certified that Ms Tito as ‘fit for work but should commence on 1 hour driving alternative with 1 hour rest for 1 week’. 9 Approximately 5 weeks after her surgery Ms Tito returned to work driving a haul truck but was able to only work on the truck for 1 1/2hrs. The work trial was unsuccessful, according to Ms Tito, because it had only been 5 weeks post surgery.10 This episode was the only time that Ms Tito drove a haul truck between July 2016 and her dismissal in August 2018.11

[15] Rio received a letter from Dr Kuan of 8 November 2016, in which he observed that Ms Tito had substantively recovered, but her injury had been part of a pattern of chronic neck pain and restriction that he considered arose from her original injury in 2013. 12 Dr Kuan expressed that he believed that the episode commencing on 24 July 2016 was as a result of her original injury.13

[16] On 11 November 2016, Dr Connaughton addressed correspondence to Rio stating, amongst other things, that:

[17] Dr Connaughton sent further correspondence, dated 3 January 2017, to Mr Matthew McDowell, Case Manager, CGU Insurance (Mr McDowell). CGU were handling Ms Tito’s workers’ compensation claim. In that letter Dr Connaughton stated that, amongst other things:

[18] Mr McDowell referred Ms Tito to Mr Phillips for assessment and to obtain a medical report. By letter dated 25 January 2017, Mr Phillips responded to Mr McDowell’s referral and prepared a medical report, which included the following evaluation:

[19] By letter dated 21 February 2017, Mr Zane Norman (Trewin Norman & Co Personal Injury Lawyers) sent a report prepared by Mr Watson to CGU Insurance. This report included the following:

[20] Rio then referred Ms Tito to Dr Connaughton for further assessment and on 22 February 2017, Dr Connaughton sent a letter to Ms Teresa Welch, Injury Management Advisor Rio (Ms Welch), that stated, amongst other things:

[21] During the period of November 2016 to February 2017, Ms Tito performed administrative support duties in the Operating Centre in Perth. In order to successfully manage Ms Tito’s return to work between March 2017 and October 2017, Mr Robinson gave evidence that, in consultation with Rio’s Injury Management Team, three ‘return to work plans’ were implemented for Ms Tito.

[22] The first return to work plan started on 22 March 2017 and ended on 22 June 2017 (RTWP 1). 19 RTWP 1 noted Ms Tito’s restrictions as being operator duties until 12 months post-surgery (7 September 2017) and limited lifting to 5-10kg as tolerated.20 The work duties proposed were administrative duties in line with restrictions.21 There was a staggered start to the duties with hours gradually increasing.22 During this time (2 March 2017 until September 2017), Ms Tito performed technical writer duties compiling ‘SWPs’ in Rio’s offices at the Robe Valley site gradually increasing her hours from 8 hours a day to 12 hours.23

[23] Mr Robinson reported that for a period of two months while RTWP 1 was on foot he visited Ms Tito once a week to check how she was feeling and progressing. During one visit Mr Robinson recalls that Ms Tito informed him that she experienced pain travelling to and from site on the plane and bus, and therefore wore a neck brace and took pain medication. 24 After two months, Mr Robinson reduced the visits as Ms Tito appeared to be coping well with the work.

[24] During RTWP 1, by letter dated 27 June 2017, Dr Connaughton advised Ms Welch that:

[25] On 5 September 2017, Ms Tito commenced a second return to work plan (RTWP 2) that ran through until 31 December 2017. The restriction on performing operator duties was to remain in place until a review with Dr Connaughton. Accordingly, the RTWP 2 prescribed duties were confined to administrative duties.

[26] Dr Connaughton provided a letter dated 29 September 2017, to Calli Markham, Injury Management Advisor, stating amongst other things:

[27] Following Dr Connaughton’s review, a third return to work plan was commenced on 16 October 2017, and concluded on 27 November 2018 (RTWP 3). RTWP 3 included a proposed work hardening program that involved, in addition to the administrative duties, the introduction of spending limited time each shift on various mobile plant. 27 However, from September 2017 until May 2018, Ms Tito supported the Maintenance Team by undertaking various tasks including inputting faults into the maintenance system, collecting reports, pre-starts and various other administrative support duties.28 Work hardening was not pursued and Ms Tito continued to work in an administrative support capacity.

[28] During a series of correspondence between the Rio Workers’ Compensation Specialist, and the Senior Case Manager CGU, it was observed that Mr Bala, Consultant Neurosurgeon, having assessed Ms Tito on 18 December 2018, reported the following:

[29] Rio referred Ms Tito to her general practitioner, Dr Jones, for medical certification regarding her fitness. Dr Jones responded by letter dated 26 February 2018 and stated:

[30] By email dated 6 March 2018, Ms Tito forwarded Dr Jones’ letter of 26 February 2018 to Mr Robinson and noted ‘[H]ere is my medical certificate to start back this week as an operator’. On receiving Dr Jones’ letter, Mr Robinson emailed Ms Joanna Lyall, Rio Tinto Iron Ore Injury Management Advisor, Robe Valley (Ms Lyall), stating ‘Hi Jo, I received this from Elaina Tito yesterday, as you will see its very abrupt from the Dr, I will not be placing her on a truck until I get feedback from yourself on a plan to RTW, if she can ever return?...’.

[31] On or about 7 March 2018, Rio’s Workers Compensation Specialist discussed Dr Jones’ letter of 26 February 2018 with Mr Robinson, and whether it would be possible to return Ms Tito to her pre-injury role.

[32] Between 8 and 9 March 2018, Ms Lyall liaised with Ms Tito to arrange an appointment with Dr Connaughton for a review regarding her ability to return to her pre-injury role. An appointment was arranged and Dr Connaughton subsequently wrote to Ms Lyall by letter dated 13 March 2018, stating, amongst other things, that:

[33] On 15 March 2018, Ms Lyall contacted Rio’s Workers’ Compensation Specialist to provide Dr Connaughton’s report of 13 March 2018. Ms Lyall confirmed to the Workers’ Compensation Specialist that Dr Connaughton’s advice was that Ms Tito could commence a return to work plan, however, he believed that the likelihood of success was low, and it would be more effective for her to be redeployed. Ms Lyall confirmed that she had attempted to contact Dr Jones, without success, regarding Ms Tito’s progress, and certificate of capacity. Ms Lyall advised that it was time to consider Ms Tito’s rehabilitation goals, and to look at either redeployment, or a medical separation.

[34] On 23 March 2018, Ms Tito presented to the onsite Emergency Medical Office reporting severe pain and was assisted with physiotherapy treatment. Injury Management personnel reported that Ms Tito was bent over holding her arm and was in tears. It was said that the onsite physiotherapist spent 2 hours with Ms Tito while her symptoms settled. There was said to be no specific cause for her pain. 32

[35] On 22 April 2018, after Dr Jones is said to have had a period of leave, he contacted Ms Lyall by email in response to a request that he release a letter dated 26 February 2018 regarding Ms Tito, to Rio. In the email Dr Jones wrote:

[36] During the period from Ms Tito’s neck injury in 2016 until her dismissal, several WorkCover certificates were issued by Ms Tito’s treating medical practitioners. They are as follows:

[37] During the course of the hearing, Ms Tito gave evidence that during 2016 and 2017 she spoke to Mr Dean Partridge, Supervisor A-Crew, about returning to work to drive haul trucks. Similarly she asked Ms Stacey Clark, Step Up Supervisor, C-Crew, in or around February 2017 about a return. 35 In addition, Ms Tito said that she spoke to Mr Robinson about returning to driving in mid-2017.36

Redeployment

[38] Mr Robinson’s evidence was that while working as a Superintendent from March 2018, Ms Tito did not, to his knowledge, perform any work for the Production Team other than collecting and inputting pre-start information; she did not perform any pit controller roles.

[39] Leading up to the decision to commence a formal redeployment process for Ms Tito, Mr Robinson gave evidence of the factors he considered:

[40] On 10 May 2018 a meeting (telephone conference) was held with Ms Tito and her support person, Mr Darren Goff, Superintendent Track Machine Workshop (Mr Goff). 38 Ms Gloria Gu, HR Advisor (Ms Gu), and Mr Robinson were in attendance, and Mr Robinson led the meeting.39

[41] In short, Mr Robinson communicated to Ms Tito that Rio had no further non-safety critical work and that her temporary work as a Technical Writer had ceased. 40 Mr Robinson thereafter referred to the assessments of Doctors Jones and Connaughton, explaining that the medical advice indicated that Ms Tito’s return to her pre-injury role was not indicated, and there was a raised risk of re-aggravation of her injury if she did attempt to return.41 Mr Robinson said that he explained to Ms Tito that one of the options to support her moving forward was to commence a redeployment process for her in attempt to secure an alternative role and Mr Robinson asked Ms Tito what roles she would be interested in.42 Mr Robinson said that Ms Tito referred to the position of pit controller in the Operating Centre.43

[42] Ms Tito’s recollection of the meeting on 10 May 2018, given through her witness statement, differed to that of Mr Robinson and Ms Gu. Ms Tito gave evidence in that statement that during the telephone conference she was told that her role ‘with the MEMSWP development team had ceased and that Rio Tinto was not willing to commence a program to return me to haul truck driving.’ 44 Ms Tito stated that she voiced a complaint to Mr Robinson that she had not been afforded a chance to return to work as a truck driver and that Mr Robinson responded by telling her ‘the decision was made by Rio Tinto because of “medical evidence”’.45 Further, Ms Tito stated that she challenged Mr Robinson’s claim that the ‘MEMSWP development team role had ceased’.46

[43] In cross examination when asked about the redeployment phase and the meeting on 10 May 2018, Ms Tito responded as follows:

[44] On 16 May 2018, a follow up meeting was held and attended by the same individuals. 48 Ms Tito was informed that the redeployment process would last five weeks, and within that period she would be actively identifying and applying for suitable Rio vacancies.49 Ms Gu would email open vacancies to her weekly, and would maintain regular contact with the recruitment team.50 If a suitable role was identified, Ms Tito would commence in that role as soon as practicable, but if no suitable role was found in the period, Ms Tito would be dismissed on the grounds of ill health.51 Mr Robinson observed that Ms Tito indicated that she understood what had been communicated, and further noted that Ms Tito did not refute the assessment that she was not fit for her pre-injury role.52

[45] During the course of the two meetings in May 2018, Mr Robinson’s evidence was that Rio had not informed Ms Tito that it was not willing to commence a program to return her to a haul truck driving and that Ms Tito did not complain at any time to Mr Robinson that she had not been given a chance to do so. 53

[46] By letter of 11 June 2018, Ms Tito requested a further meeting to discuss the redeployment process noting ‘it is still my preference to find internal redeployment within Rio Tinto’. Mr Robinson’s evidence was that to the best of his understanding, while he was on annual leave, Mr Jeremy Chan, Acting Superintendent, met with Ms Tito twice to discuss the concerns she had raised in the letter. 54

[47] Toward the end of the redeployment process, Mr Goff raised a Speak Out complaint about the manner in which Ms Tito had been treated. This delayed the finalisation of the redeployment process as the complaint required investigation. It is observed that Ms Tito had no complaints about how Mr Robinson or Ms Gu approached, or ran the redeployment process. The complaint was investigated, however, nothing further arose from it.

[48] On or around 31 July 2018, a possible role became available for Ms Tito in Mr Robinson’s team due to the resignation of the person filling that position. It was an administrative role for a period of 12 month secondment. Mr Robinson said that on 14 August 2018 he called Ms Tito and invited her to apply for the role noting that by the end of the 12 month secondment the goal would be to return to her pre-injury role or secure another permanent role within the business. 55 Ms Tito declined the position due to her parental responsibilities. Evidence was given that Ms Tito’s ex-husband works for Rio and would be on the same swing as her. This would mean that there would be no one available to care for her children. Ms Tito reports that her ex-husband declined to change the custody arrangements which would have allowed Ms Tito to work in the secondment role. Mr Robinson gave evidence that Ms Tito did not ask him to change the roster and, if she had, he would have informed Ms Tito it was not practical because more than one person would be impacted by a single roster change.

[49] On 27 August 2018 a further telephone meeting was held with Ms Tito, Ms Gu and Mr Robinson. During the meeting, Mr Robinson acknowledged that given an alternative role had not been found and accepted, Ms Tito’s employment with Rio would be terminated effective 27 August 2018; a letter confirming Ms Tito’s termination of employment was provided on that same date.

Ms Tito’s case

[50] To summarise, Ms Tito advanced she was dismissed absent a valid reason because there was no medical evidence to say she could not fulfil the inherent requirements of her job, at the time of the dismissal. Second, the medical evidence relied upon did not communicate that Ms Tito could not do the job in the future.

[51] With regard to the second contention it is relevant to observe from the outset that it was not Rio’s position that Ms Tito would not have capacity to perform the job in the future. As was advanced by Mr Wade, counsel for Rio (Mr Wade), Rio accepted that the medical evidence did not point to Ms Tito being unable to drive a haul truck in the future. 56

[52] Mr Stojanoski, counsel for Ms Tito (Mr Stojanoski), said that the specialist medical evidence would show that in effect, ‘there is a risk to further injury, but now that she has had the operation, that risk is low.’ With regard to the medical evidence of general practitioners, Mr Stojanoski submitted that they were not medical specialists. He continued that it was the evidence of Mr Watson, the specialist who was the surgeon, and Dr Connaughton an occupational physician who had specialised in returning people to work, which should be preferred.

[53] Mr Stojanoski submitted that there was no conflicting medical specialist advice or evidence. The medical evidence pointed largely to the same assessment which, according to Dr Connaughton and Mr Watson, was that Ms Tito was improving and continued to improve up until Dr Connaughton’s final report in March 2018. Mr Stojanoski asserted that the evidence would show that at the time of Ms Tito’s dismissal, even though there was a medical report to say she could do a graded return to work on trucks, there was nothing to say she could not drive haul trucks, nor that she could never drive haul trucks in the future.

[54] With regard to Ms Tito’s motivation to return to her pre-injury position, Mr Stojanoski said that the evidence would show that Ms Tito had always wanted to return to haul truck driving, her pre-injury role.

[55] Mr Stojanoski advanced that there were procedural failings by Rio regarding its non-conformance with its own policy, and in light of its own Human Resource Specialists, a better process should have been followed.

[56] Regarding the evidence led by Rio, or rather Rio’s omission to call Dr Connaughton and Ms Lyall to provide evidence, Mr Stojanoski submitted the Commission should infer that the evidence of Dr Connaughton and Ms Lyall would not have assisted Rio’s case that there was a valid reason to dismiss Ms Tito.

[57] The contents of Dr Connaughton’s report of 13 March 2018, was, according to Mr Stojanoski, evidence that Ms Tito was ready and able to commence a graded return to normal duties as a haul truck driver. However, in that same report Mr Stojanoski identifies that Dr Connaughton expressed some doubt that Ms Tito could sustain a return to normal duties, notwithstanding, he had opined it ‘not unreasonable’ to progress with a graded return to work. Mr Stojanoski contended that Rio’s position was at direct odds with Dr Connaughton’s report given that Dr Connaughton had expressed an opinion that a return to work was reasonable. He submitted that Rio had adopted an unequivocal stance that Ms Tito was not able to resume duties as a truck driver.

[58] Mr Stojanoski submitted that Dr Connaughton was an available and expected witness of Rio, his evidence could reasonably be expected to assist the Commission to determine whether Ms Tito was able to perform the inherent requirements of her role at the date of dismissal, and Rio did not explain, or provide evidence as to why it did not call evidence from Dr Connaughton.

[59] Concerning Ms Lyall, Mr Stojanoski observed that she had noted that Dr Connaughton’s report contained a statement to the effect that Ms Tito ‘can commence a RTW Plan as he reported previously’. However, Ms Lyall went on to note in her emails that she wished to obtain a further opinion from Dr Jones, but he had not called back. Mr Stojanoski surmised that Ms Lyall was uncertain and had questions about the meaning and effect of the findings of Dr Connaughton as set out in his report of 13 March 2018. It was advanced that given Ms Lyall was the primary decision-maker and initially responsible for the decision not to allow Ms Tito to commence a return to work plan, she was a natural and expected witness of Rio.

Rio’s case

[60] In short, Rio submitted that at all relevant times, and on the balance of probabilities, Ms Tito was not fit to perform her substantive role and, importantly, that this was something that she herself accepted.

[61] The second key submission for Rio was that in the context of the policy that applied, there were genuine efforts, to secure her an alternative role.  Those efforts amounted to nought, in spite of Rio offering a position to Ms Tito towards the end of the three-month redeployment process. The position offered was a role that Ms Tito was unable to accept, and therefore she declined the offer.

Matters in dispute

[62] There was not a significant factual dispute regarding the sequence of events outlined in the background part of this decision. However, there was dispute over the import of the medical evidence, and the picture it painted. In addition, the dispute extended to the content of certain meetings, including what was raised in those meetings, and whether Ms Tito took issue with what Rio referred to as its ‘holistic interpretation’, of the overall import of the medial advice. According to Mr Wade, the holistic interpretation was that the medical evidence pointed to the fact that if Rio allowed Ms Tito to drive a haul truck, she would run the risk of a significant injury. Mr Wade submitted that Ms Tito was aware of, and accepted that.

Agreed Matters

[63] It is not in contest and I am satisfied on the evidence that:

(a) Ms Tito is a person protected from unfair dismissal because, at the time of her dismissal, she had completed a period of employment with Rio of at least the minimum employment period, and her income was less than the high income threshold; 57

(b) Ms Tito was dismissed by Rio; 58

(c) Rio was not a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was inapplicable; 59

(d) Ms Tito’s dismissal was not a case of genuine redundancy; 60 and

(e) the Application was made within the period required. 61

Section 387 of the Act

[64] When considering whether a dismissal was ‘harsh, unjust or unreasonable’, s 387 requires the Commission to ‘take into account’ the matters that are set out in the paragraphs (a)-(h) of that section.

[65] As was observed by the Full Bench in CSL Limited T/A CSL Behring v Chris Papaioannou (CSL), 62 to take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense.63 The decision maker is bound to take into account the matters, and therefore the matters in (a)-(h) must be treated as significant in the decision making process. However, they are not necessarily a determinative consideration.64 I turn to those matters now.

Valid reason for the dismissal – s 387(a)

[66] Whether there was a valid reason for dismissal relating to the employee’s capacity or conduct, is a matter the Commission is to take into account. 65 ‘Capacity’, is considered because there was never any issue concerning Ms Tito’s conduct.

[67] ‘Capacity’ in the context of s 387(a) means the employee’s ability to do the job as required by the employer. 66 It also includes the employee’s ability to do the work they were employed to do.67

[68] In Jetstar Airways Ltd v Neeteson-Lemkes (Jetstar), 68 the Full Bench clarified that in an unfair dismissal application, the Commission is required to make certain findings concerning an employee’s capacity. What is required was explained in the following passage:

[69] Subsequently, in CSL the Full Bench, adopted the approach in Jetstar, and explained in short, that when the dismissal related to the person’s capacity, s 387(a) required the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Those findings were to be based on both the relevant medical and other evidence before the Commission. 70

[70] Understandably, it is not the Commission’s function to stand in the shoes of the employer, in this case Rio, and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether Rio had a valid reason connected with Ms Tito’s capacity. 71

[71] It is uncontroversial that a valid reason is one that is sound, defensible or well founded, and the reason is to be applicable in a practical, common-sense way to ensure that the employer and the employee are treated fairly. The reason must be valid in the context of the employee’s capacity. 72 Further, when considering whether a reason is valid, the requirement applies in the practical sphere of the relationship between employer and an employee where each has rights and privileges, and duties and obligations, conferred and imposed on them.73

Consideration

[72] With regard to ‘capacity’, I am required to make findings as to whether, at the time of dismissal, Ms Tito suffered from the alleged incapacity. 74 The findings are to be based on the relevant medical and other evidence before the Commission.75

[73] However, I consider that a good starting point is to consider the job, role, or position Ms Tito held. With regard to these terms, ‘job, role, or position’, I use them interchangeably whilst appreciating that some authorities have distinguished between the concepts. When reference is made to Ms Tito’s position it is a reference to her substantive pre-injury position. Not any modified position, restricted duties or temporary alternative position. 76 The focus then is whether Ms Tito’s capacity at the time of dismissal was such that she could meet or perform the inherent requirements of her position.

[74] Whether an employee can perform the inherent requirements of their position has been considered in the context of legislation addressing disability discrimination. 77 In X v Commonwealth,78 the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) (DDA). The DDA at that time contained an exemption from liability, if the person ‘would be unable to carry out the inherent requirements of the particular employment’. Gummow and Hayne JJ addressed the phrase ‘inherent’ requirements in this context:

[75] Although the analysis in X v Commonwealth considered the phrase ‘inherent’ requirements in the context of the DDA, the analysis remains applicable to the consideration of ‘inherent’ requirements in the context of the Act. 79

[76] In Hail Creek Coal Pty Ltd v CFMEU, the Full Bench of the Commission considered an application for relief from a preference order under the Workplace Relations Act 1996 (Cth), a predecessor to the Act. 80 The preference order operated to ensure that the employer gave preference in employment to the persons listed in the order. However, the employer could seek relief from the order on the basis that persons on the list were unsuitable. During the course of the decision, consideration turned to whether the persons listed could meet the inherent requirements of the vacant positions, the Full Bench noted:

[77] In J Boag & Son Brewing Pty Ltd v Button, the Full Bench of the Commission considered the term ‘inherent’ requirements in the context of a valid reason for dismissal and elaborated on the analysis that was necessary in the following way, first making reference to the High Court’s judgment in Qantas Airways Ltd v Christie:

[78] Ms Tito’s job was to drive mobile plant, in particular haul trucks, on a full-time basis. When referring to full-time basis it is important to clarify that ‘full-time’ describes a roster pattern of working 12.5 hours a day on a roster of eight days on and six days off and thereafter seven nights on and seven nights off.

[79] Unlike driving a car, the evidence was that driving a haul truck involved operating mobile equipment in a safe and efficient manner in order to load, haul, and dump materials in accordance with work plans. It is therefore understandable that in one of her medical assessments prepared by Dr Connaughton on 29 September 2017, Ms Tito is reported to having expressed ‘…that she still has a disc prolapse at C2/3 and she has concerns if her haul truck was struck by a shovel’.

[80] When attention is turned to what the characteristics or essential requirements were for Ms Tito’s position, and adopting an approach that the essential requirements should be determined by the dictates of common sense and as a matter of objective fact, I have found that an essential or inherent requirement of Ms Tito’s position was for Ms Tito to operate, or drive, as the case may be, mobile plant; predominately haul trucks.

[81] The inherent requirement, however, is not limited to only operating or driving mobile plant per se. It is clearly an inherent requirement of the job that the mobile plant, inclusive of a haul truck, is to be operated for the period stipulated by Rio. In this case, Ms Tito’s roster required her to work 12.5 hour shifts on the roster swing previously cited.

[82] Now it may not be the case that Ms Tito would be operating or driving the haul truck for the duration of 12.5 hours. Clearly, there were breaks to be had and the Standard Role Profile for an Operator II, in addition to Mr Robinson’s evidence of what the job entailed, referred to carrying out inspections, performing pre-starts, and maintaining processing of records and reports in amongst other tasks. However, predominately an essential requirement was operating or driving mobile plant for long periods.

[83] Concerning Ms Tito’s capacity to perform the inherent requirements of her position, I note that the last opinion provided by a medical specialist before Ms Tito was dismissed, was that of Dr Connaughton on 13 March 2018. On this point, it is important to acknowledge that Ms Tito squarely placed some criticism on Rio for placing reliance on a medical report that was not contemporaneous at the time of her dismissal. It was submitted that Rio did not seek an updated medical opinion as to Ms Tito’s current and future capacity prior to making the decision to dismiss her. However, I consider that there is an acceptable explanation why Rio did not seek to obtain yet another medical assessment from a specialist regarding Ms Tito’s capacity to perform the inherent requirements of her position, before dismissing her.

[84] By letter to Ms Lyall dated 13 March 2018, Dr Connaughton had reported, amongst other observations, the assessment outlined at paragraph 32 of this decision. Reference is made to this report initially because it is the last medical assessment by a ‘specialist’ before Ms Tito’s dismissal on 27 August 2018.

[85] While I have outlined the assessment of Dr Connaughton in his letter to Ms Lyall on 13 March 2018, I observe that with regard to Ms Tito’s ‘current status’ as titled in the letter, he stated:

[86] Mr Stojanoski submitted that Dr Connaughton’s report to Ms Lyall on 13 March 2018 disclosed, in brief, that Ms Tito was improving, she had received specialist medical advice that she could return to operating a truck if she wanted to, she wanted to return to operating haul trucks, she accepted there were risks but they were no different to risks taken by people each day, that is was not unreasonable for Ms Tito to progress with a graded return to haul truck driving and while the chance of success with a graded return to work plan was low, Dr Connaughton accepted it was not an unreasonable undertaking.

[87] With regard to Mr Stojanoski’s submission that Ms Tito had received medical advice that she could return to operating a haul truck if she wanted to, it is relevant to make some observations.

[88] On 25 January 2017, Mr Phillips produced a report in which he opined that ‘I believe that [Ms Tito] has current capacity to return to pre-injury duties. I would not apply any restrictions. There is a risk of further injury, but I consider the increased risk compared to an uninjured cervical spine is now minimal’. Not long after the report of Mr Phillips, on 21 February 2017, Mr Watson reported his opinion. That opinion was that Ms Tito could one day return to her pre-injury role and he recommended an opportunity to undertake a graduated and hardening return to her full-time normal duties.

[89] However, post 21 February 2017, the evidence does not support a view that Ms Tito had capacity to return to her position. It is noted that in his report of 21 February 2017, Mr Watson’s opinion was that Ms Tito would have reached her maximum medical improvement by a year following her surgery on September 2017. 83 In his letter of 22 February 2017 to Ms Welch, Dr Connaughton advised Rio that Mr Watson had recommended to Ms Tito that she not return to driving a haul truck until one year after her neck surgery (September 2017).

[90] Dr Connaughton, by his report of 29 September 2017, recommended that it was not unreasonable to commence a return to work plan but cautioned Rio that in his opinion the chance of success with the return to work plan was low. 84 It is thereafter reported that on 18 December 2017, Mr Bala, Consultant Neurosurgeon, said, while there were no real medical contradictions for Ms Tito attempting to return to pre-injury duties, he was not confident that she would return to her pre-injury duties for fear of perhaps aggravation of similar problems at other levels.85

[91] In February 2018, Rio sought a medical clearance for Ms Tito to participate in a graduated return to pre-injury duties. While it is the case that the clearance was provided, Rio was informed that such clearance was provided from her treating General Practitioner with ‘resistance’. This resistance was perhaps well founded given that on 23 March 2018, whilst not undertaking a graduated return to duties but working in her alternative duties, Ms Tito presented to the Emergency Medical Office reporting severe pain in her arm, was in tears, and required 2 hours of physiotherapy treatment.

[92] In his letter dated 13 March 2018, Dr Connaughton, stated that it was not ‘unreasonable to commence that plan’; this was in reference to the work hardening return to work program. However, it was not the case that he purported that Ms Tito was fit to resume her job or position. As observed, Dr Connaughton’s specialist medical report was not contemporaneous with the dismissal. In fact, it was some 5 months old. However, as was apparent from the opinion of Mr Watson, it was considered that Ms Tito would have reached maximum medical improvement in or around September 2017.

[93] While it is the case that the reports of Dr Connaughton show that there had been an improvement in Ms Tito’s OMPQ and NDI from September 2017 to March 2018, his opinion regarding her capacity to return to her pre-injury position was unchanged. While he expressed it was not unreasonable for a graduated return to work to be implemented, he cautioned Rio regarding the prospects of such a program succeeding. In addition, he had not certified Ms Tito fit for her position. There was no suggestion, or recommendation made, that Ms Tito could perform her job with reasonable adjustments.

[94] In fact, Dr Connaughton’s assessment on 13 March 2018 showed that Ms Tito remained symptomatic concerning her neck injury, she was taking medication to manage neuropathic pain, and her symptoms increased on travel to and from site. This was some six months after Mr Watson had opined that Ms Tito would have reached her maximum medical improvement and at a time where not long after Dr Connaughton presented his report, Ms Tito presented on site to the Emergency Medical Office with an acute episode of arm pain. A symptom which had previously manifested as a result of her neck injury.

[95] Nevertheless, Rio pressed on with the plan to implement a graduated return to pre-injury duties for Ms Tito and sort to ascertain whether Ms Tito was fit for ‘work hardening’. Just prior to the redeployment phase, Dr Jones provided the following commentary in the WorkCoverWA Progress certificate of capacity date 9 May 2018:

[96] Mr Stojanoski advanced that the reports of the medical specialists should be preferred to that of the provided by general practitioners. Mr Stojanoski continued that the Commission should treat the evidence of general practitioners with great caution given they were not medical specialists, and that one general practitioner expressed that if Rio was seeking duties/role restrictions analysis then Rio should engage an occupational therapist or physician. To clarify, Dr Jones had responded by email to a request from Ms Lyall to release a letter that Dr Jones had provided to Ms Tito on 26 February 2018. In that email he stated:

[97] As of 9 May 2018, Dr Jones medically certified Ms Tito has having ‘some capacity for work’ until he deemed her fit for prior duties. Ms Tito was not, as of 9 May 2018, certified fit to perform the duties of her position and again there was no suggestion, recommendation, or medical opinion expressed that her job could be performed with reasonable adjustments.

[98] While Mr Stojanoski advanced that the Commission should prefer the reports of medical specialists to that of general practitioners, I am of the view that there is a commonality between both. That commonality was that following what was said to have been reported by Mr Bala on 18 December 2017, the medical evidence showed that Ms Tito was not fit to perform the inherent requirements of her position, and no evidence demonstrated that reasonable adjustments would have made a difference to this assessment.
[99] Other evidence showed that on 23 March 2018, Ms Tito presented to the Rio Emergency Medical Office in severe pain in her arm. While it may have been the case that Dr Connaughton considered it not unreasonable for a graduated return to work to be implemented, this does not in turn mean that Ms Tito was able to meet the inherent requirements of her position. Further, it is correct that Mr Bala was reported as having said that there were no real medical contradictions for Ms Tito to attempt a return to pre-injury duties, however, he had not assessed Ms Tito to the extent that Dr Connaughton had.

[100] It was emphasised by Mr Stojanoski, and I agree with his submission, that with regard to the circumstances of this case, reliance on medical certificates provided by general practitioners should be confined to the period in which the certificate was certified to apply. With regard to the certificate that Dr Jones issued on 9 May 2018, it is observed that Ms Tito was not fit for her prior duties until Dr Jones deemed her so. There is no reason advanced to suggest invalidity regarding such certificate, and from the evidence before me it appears that Dr Jones did not deem her fit subsequent to that medical certificate.

[101] In the period from Dr Connaughton’s letter of 13 March 2018 until Ms Tito’s dismissal, there had been two medical assessments conducted by Dr Jones. Additionally, Rio undertook a redeployment phase which lasted approximately 3 months. I consider that in the circumstances of this matter, these factors sufficiently explain why Rio relied on the medical and other evidence it did when deciding to dismiss Ms Tito, and why it did not seek further opinion from a medical specialist.

[102] It was advanced on behalf of Ms Tito that even where the medical evidence identifies risks with the injured employee being placed on a return to pre-injury duties program, if that employee wishes to return to work and medical practitioners have not said that it is not possible, then that employee should be given the opportunity to be placed on a return to pre-injury duties work plan.

[103] I consider that Rio made it clear to Ms Tito why it considered embarking on a redeployment phase was the more appropriate option. Ms Tito confirmed that Rio informed her to the effect:

[104] Mr Stojanoski directed attention to the decision in Ms V v Ambulance Victoria, 88 and expressed there was an expectation of the community that the aim of the employer should be to assist people who have been the subject of illness or injury to return to work, if that is possible. This submission aligns with the key commitments in the Rio Injury Management and Work Practice policy. The evidence before me does not substantiate that there was non-compliance with the same. While it was submitted that Rio did not consider or make reasonable attempts to follow its own policy and/or properly consider practical alternatives to dismissal, such as suitable redeployment, this is not borne out of the evidence. Ultimately, Ms Tito was offered a position, which she declined.

[105] Ms Tito’s case was that she could perform the full duties of her position subject to the completion of a graded return to work plan. Further, Ms Tito advanced that the sum total of specialist evidence was that if given the chance to participate in a graded return to work plan then she would eventually returned to her pre-injury duties driving a haul truck. Neither party disputed the evidence provided in the letters or reports of Dr Connaughton. Dr Connaughton was clear that the chance of success with the above return to work plan was low and that he doubted that she would cope with, achieve, or sustain a return to normal duties as a haul truck driver.

[106] Mr Robinson gave evidence, based on his review of the recent medical advice, that he felt Ms Tito was ‘not able to safely return to her pre-injury role, and would not be capable of doing so for the foreseeable future’. The conclusion was sound. Whilst a difficult decision to make, due to the potential economic and social impact it had on Ms Tito, Rio was obliged to put the health and well-being of Ms Tito first. This is not to say that the decision did not affect Ms Tito’s well-being from a mental health perspective. But, it would have been ill-conceived to have placed Ms Tito in a position where a medical specialist had made it abundantly clear that his opinion was that her chances of success with the work hardening return to work plan was low and he doubted that she would cope.

[107] With regard to the absence of Dr Connaughton as a witness, Mr Stojanoski submitted that the Commission ought to infer that the evidence of Dr Connaughton would not have assisted Rio’s case that there was a valid reason to dismiss Ms Tito based on her capacity and that the rule in Jones v Dunkel had application. 89

[108] In Mr Richard Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited (Hyde), 90 the Full Bench observed that the rule in Jones v Dunkel is ‘a rule of common sense and fairness in relation to the fact finding process’, and acknowledged that the rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo).91 I do not intend to repeat in detail what was expressed in Hyde or Tamayo apart from observing a few points. The rule provides that the inference may be drawn in certain circumstances, but there is no requirement that it must be drawn.92 The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case.93 It is not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case.94

[109] Concerning Dr Connaughton there was no submission before me that his evidence was in contention or dispute. 95 Dr Connaughton’s assessment of Ms Tito was clearly articulated and it is apparent that Rio relied upon his assessments when forming its decision to take the steps that it did. Rio submitted that while it engaged Dr Connaughton, he is a medical practitioner who is bound by his professional and ethical obligations to provide impartial advice and his views are not beholden to Rio.96 Further, as Mr Stojanoski was reminded at hearing, there was no barrier to his calling Dr Connaughton as a witness had he considered this necessary. I do not consider that it was ‘natural’ for Rio to have called Dr Connaughton or that somehow it was expected.

[110] With regard to Ms Lyall, Mr Stojanoski submitted that the Commission similarly should infer that her evidence would not have assisted Rio’s case. It was Mr Stojanoski’s view that while Ms Lyall had acknowledged Dr Connaughton recommended on 15 March 2018 that Ms Tito could commence a return to work plan, Ms Lyall advised in her emails that she wished to obtain a further opinion from Dr Jones. Mr Stojanoski advanced that Ms Lyall was a natural and expected witness of Rio because she was the primary decision maker who did not allow Ms Tito to commence a return to work plan.

[111] I am not persuaded that there is a breach in the rule in Jones v Dunkel that leads to the drawing of an adverse inference regarding Ms Lyall not being called. So far as determining whether there was a valid reason for Ms Tito’s dismissal, the critical consideration is whether, at the time of dismissal, Ms Tito suffered from the alleged incapacity based on the medical and other evidence before the Commission. The evidence of Ms Lyall sheds no light on this, and therefore the inference advanced by Mr Stojanoski is not drawn.

[112] The existence of a valid reason is important in assessing the overall fairness of the termination of an applicant’s employment. In Parmlat Food Products Pty Ltd v Wililo, the Full Bench held:

[113] Having considered all of the evidence before me and the submissions made, I have found that there was a valid reason for dismissal.

Notification of the valid reason – s 387(b) and an opportunity to respond – s 387(c)

[114] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made, 98 and in explicit,99 plain, and clear terms. It is accepted that this is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.100

Consideration

[115] Rio has submitted that Ms Tito has not taken issue with its compliance with this requirement. However, it is observed that s 387(b) is a factor that is to be taken into consideration, and is not a requirement with which compliance is required. Nevertheless, it is apparent that Ms Tito was notified of the reasons why Rio was considering terminating her employment and she was afforded the opportunity to respond to those reasons; this is uncontroversial.

Unreasonable refusal of a support person – s 387(d)

[116] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

Consideration

[117] Rio again submitted this consideration is uncontroversial and at all relevant times Mr Goff acted as Ms Tito’s support person. There is no argument to the contrary from Ms Tito.

Warnings regarding unsatisfactory performance – s 387(e)

[118] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.

[119] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct. 101 The Commission must take into account whether there was a period between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period gives the employee the opportunity to understand their employment is at risk and to try to improve their performance.102

Consideration

[120] This factor is neutral in light of the finding that the reason for Ms Tito’s dismissal was her incapacity at the time of dismissal as evidenced by her inability to meet the inherent requirements of the job.

Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed – s 387(f)-(g)

[121] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (f) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Consideration

[122] In short, Ms Tito has contended that Rio did not adequately consider or make reasonable attempts to identify alternatives to dismissal, medically retire her, obtain suitable medical evidence, or reflect upon the severity of the dismissal upon her or consider her ‘exemplary work performance and history’.

[123] On 10 May 2018, Mr Robinson and Ms Gu held the first meeting with Ms Tito where redeployment was considered as an option. Ms Gu’s evidence, which was unchallenged, was that Rio did not treat Ms Tito’s situation as a standard redeployment process with a strict commencement and completion date. Ms Gu stated:

[124] Ms Gu gave evidence that at the meeting on 10 May 2018, Mr Robinson referred Ms Tito to the medical advice provided by Dr Jones on 26 February 2018, 15 March 2018, and 9 May 2018 in addition to the advice of Dr Connaughton. 104 Ms Tito acknowledged that she had copies of the medical reports. Ms Gu reports that Ms Tito said to the effect ‘it is a little bit shocking that I can’t return to work at all in any role’.105

[125] Ms Gu reported that Mr Robinson then informed Ms Tito that the medical advice clearly showed that Ms Tito’s return to her pre-injury role was not indicated and that there was a raised risk of re-aggravation of her injury if she did attempt to return. Mr Robinson informed Ms Tito that Rio did not feel it could safely return her to her pre-injury role as this would go against medical advice. 106 Ms Gu said that she explained to Ms Tito that a way forward might be a redeployment process whereby Rio would assist her to apply for vacant positions. Ms Tito expressed she was interested in a controller position working in the Operating Centre.107

[126] In light of the meeting on 10 May, a further meeting was held on 16 May 2018 and a redeployment period of 5 weeks commenced. That period was subsequently extended to approximately 3 months as a result of the Speak Out complaint. During that period, Ms Tito is understood to have applied for five positions, which she was considered unsuitable for. Ms Gu cited comprehensive reasons for Ms Tito’s unsuitability. 108 Ms Gu also gave evidence that she provided Ms Tito with weekly open role reports.

[127] During the redeployment process, Ms Tito requested additional meetings with a representative from CGU and a Rio Tinto Injury Management Advisor. 109 Two meetings were held on 22 June 2018 and 27 June 2018. In the first meeting, matters such as the roles of various people were explained, and feedback was given concerning job applications.110 In the meeting on 27 June 2018, in response to Ms Tito’s enquiry about a ‘work trial’, it was explained that she had already participated in a ‘work trial’; amongst other matters, vocational rehabilitation was discussed.111

[128] While Ms Tito gave evidence that she enquired about a medical retirement, Ms Gu refutes that this was the case and that she only became aware of this enquiry through Ms Tito’s witness statement in these proceedings. 112 As it was, the evidence showed that Ms Tito was ineligible for a medical retirement as she was not of ‘retirement’ age.

[129] A further meeting was held on 27 June 2018 to finalise Ms Tito’s redeployment; she was informed that it had been unsuccessful. 113 Ms Tito was given 24 hours to provide reasons why her employment should not be terminated. Ms Tito provided a written response, outlining reasons why the employment relationship should be kept on foot.114 However, by 29 June 2018 a discussion was held between the Acting Superintendent and Ms Gu, and they considered nothing further could realistically be done.115

[130] The Speak Out complaint was received on 29 June 2018 and therefore the redeployment process was extended while Rio conducted its investigation. 116 That investigation was closed by 21 August 2018. However, prior to closing out the Speak Out complaint, Mr Robinson identified an administrator role which he subsequently offered to Ms Tito on or about 14 August 2018. Ms Tito declined the 12 month secondment role for reasons already traversed.

[131] Having considered all of the evidence before me I have formed the view that Rio followed its Injury Management Work Practice. In addition, it is evident that Ms Gu and Mr Robinson held genuine concern for Ms Tito with regard to her capacity and diligently sought to place her in an alternative position.

Other relevant matters – s 387(h)

[132] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[133] It is accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation the Full Bench stated that:

[134] The private or personal circumstances of the employee are relevant to the extent that they bear upon the substantive fairness of the dismissal. 118 Ms Tito is a single parent and, having lost her job, through no fault of her own, but because of her incapacity, she has had to sell her house and car to support her family. She faces job insecurity having only secured casual work, and her financial circumstances are difficult. There was never any issue raised regarding Ms Tito’s conduct, work ethic or performance of duties. Ms Tito was, by all accounts, a good employee and would still be working with Rio had she been able to work the roster of the position offered. There were legitimate reasons for the roster associated with the position, and it is entirely regrettable that Ms Tito’s personal circumstances did not lend themselves to availing herself of the job. However, this does not render her dismissal unfair.

[135] Ms Tito asserted that she had been treated inconsistently in comparison to another employee who was incapacitated. However, during the course of cross examination Rio’s witnesses were not cross examined on relevant facts directed at either establishing inconsistent treatment, or otherwise justifying an inference of unfairness. Further, there was no evidence introduced to suggest that there were any other relevant similarities or points of comparison between Ms Tito’s situation and that of the other employee. While the other employee was able to be accommodated in an alternative permanent position this in and of itself did not demonstrate inconsistent treatment or demonstrate a lack of effort on Rio’s behalf to place Ms Tito into a position within its business.

[136] Differential treatment of employees can render a termination harsh, unjust or unreasonable. However, the evidence before me does not enable a proper comparison to be made between the circumstances of the other employee and that of Ms Tito. 119

Conclusion

[137] I have taken into account each of the matters specified in s 387 of the Act. I am satisfied that Rio had a valid reason for Ms Tito’s dismissal and that her dismissal was not unjust, unreasonable, or harsh.

[138] Accordingly, I am obliged to dismiss this Application. An Order to that effect is issued concurrently with this decision.  120

al of Deputy President Beaumont of the Fair Work Commission

DEPUTY PRESIDENT

Appearances:

Mr D Stojanoski for the Applicant

Mr R Wade for the Respondent

Hearing details:

Friday, 7 December 2018

Final written submissions:

Monday, 17 December 2018

Printed by authority of the Commonwealth Government Printer

<PR702981>

 1   Witness Statement of Mr David Robinson (Robinson’s Statement) [12].

 2   Ibid [16].

 3   Exhibit R2, Attachment 3.

 4   Ibid Attachment 69.

 5   Ibid Attachment 69.

 6   Ibid Attachment 14.

 7   Ibid Attachment 9.

 8   Ibid Attachment 6.

 9   Ibid 2 Attachment 10.

 10   Transcript PN194-198.

 11   Ibid PN199.

 12   Exhibit R2 Attachment 11.

 13   Ibid.

 14   Robinson’s Statement [24(g)]; Exhibit R2 Attachment 12.

 15   Robinson’s Statement [24(h)]; Exhibit R2 Attachment 13.

 16   Robinson’s Statement [24(i)]; Exhibit R2 Attachment 14.

 17   Robinson’s Statement [24(j)]

 18   Exhibit R2 Attachment 16.

 19   Robinson’s Statement [27(a)].

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Ibid [33(b)].

 24   Ibid [29].

 25   Ibid [24(l)]; Exhibit R2 Attachment 17.

 26   Robinson’s Statement [24(m)]; Exhibit R2 Attachment 18.

 27   Robinson’s Statement [27(c)].

 28   Ibid [33(c)].

 29   Ibid [32(c)]; Exhibit R2 Attachment 33.

 30   Exhibit R2 Attachment 19.

 31   Ibid Attachment 38.

 32   Ibid p121.

 33   Ibid Attachment 40.

 34   Robinson’s Statement [25].

 35   Transcript PN519-534.

 36   Ibid PN527.

 37   Robinson’s Statement [35]-[37].

 38   Ibid [39].

 39   Ibid.

 40   Ibid.

 41   Ibid.

 42   Ibid.

 43   Ibid.

 44   Witness Statement of Ms Elaina Tito (Tito’s Statement) [42].

 45   Ibid [44].

 46   Ibid [45].

 47   Transcript PN208, 210.

 48   Robinson’s Statement [42].

 49   Ibid [46].

 50   Ibid [47].

 51   Ibid.

 52   Ibid.

 53   Ibid [56(a)].

 54   Ibid [60].

 55   Ibid [68].

 56   Transcript PN756.

 57   Fair Work Act 2009 (Cth) s 382.

 58   Ibid s 385(a).

 59   Ibid s 385(c).

 60   Ibid s 385(d).

 61   Ibid s 394(2).

 62   [2018] FWCFB 1005.

 63   Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

 64   [2018] FWCFB 1005, [45].

 65   Fair Work Act 2009 (Cth) s 387(a).

 66   Walton Mermaid Dry Cleaners Pty Limited (1996) 142 ALR 681, 684.

 67   Webb v RMIT University [2011] FWAFB 8336

 68   [2013] FWCFB 9075.

 69   Ibid [45].

 70   [2018] FWCFB 1005, [77].

 71   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 72   Selvechandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

 73   Ibid.

 74   CSL Limited v Chris Papaiannou [2018] FWCFB 1005 [36], [50], [77].

 75   Ibid [77].

 76   J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292, [22].

 77   Ibid [22].

 78   (1999) 200 CLR 177 (X v Commonwealth).

 79   J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292, [24].

 80   (2004) 143 IR 354, 124

 81   J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292, [28] – [30].

 82   Exhibit R2 Attachment 38.

 83   Ibid Attachment 15.

 84   Ibid Attachment 18.

 85   Ibid Attachment 33.

 86   Ibid Attachment 40.

 87   Transcript PN208, 210.

 88   [2011] FWA 8576.

 89   (1959) 101 CLR 298 (Jones v Dunkel).

 90   [2018] FWCFB 3989 [102].

 91   (Unreported, AIRC (FB), P1859, 4 November 1997).

 92   [2018] FWCFB 3989 [102].

 93   Ibid [104].

 94   Ibid [104].

 95   Applicant’s Closing Submissions [34]; Respondent’s Closing Submissions [14], [15], [24] – [28].

 96   Respondent’s Submissions in reply to the Applicant’s Closing Submissions [9].

 97   Parmlat Food Products Pty Ltd v Wililo (2011) 207 IR 243.

 98   Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 99   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services (Unreported, AIRC, Holmes C, Q3730, 6 October 1998).

 100   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.

 101   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 102   Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2, [58].

 103   Witness Statement of Ms Gloria Gu (Gu’s Statement) [18(d)].

 104   Ibid [19(c)].

 105   Ibid [19(d)].

 106   Ibid [19(e)].

 107   Ibid [19(g)].

 108   Ibid [24].

 109   Ibid [26].

 110   Ibid [29].

 111   Ibid [29(e)].

 112   Ibid [30].

 113   Ibid [31].

 114   Ibid [33].

 115   Ibid [34].

 116   Ibid [35].

 117   (2013) 238 IR 1, [41].

 118   Ibid [42].

 119   Darvell v Australian Postal Corporation (2010) 195 IR 307.

 120   PR703521.