AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Gary Broad
and
Pacific Coal Pty Ltd
(U2002/6651)
COMMISSIONER SPENCER |
BRISBANE, 30 OCTOBER 2003 |
Termination of employment.
DECISION
INTRODUCTION
[1] This is a determination of an application made by Mr Gary Broad (the Applicant) pursuant to subsection 170CE(1)(a) of the Workplace Relations Act 1996 (the Act) following the termination of his employment by Pacific Coal Pty Ltd (the Respondent). The Applicant contended in his application that the termination was harsh, unjust or unreasonable.
[2] This application was lodged with the Commission on 28 November 2002. On 18 December 2002, Mr Bougoure conducted a conciliation conference by telephone; however, the parties failed to reach agreement. A Certificate was issued by Commissioner Tolley on 13 January 2003, and the Applicant lodged the Notice of Election to Proceed to Arbitration on 17 January 2003.
[3] In the hearing of this matter, the Applicant was represented by Mr J. Merrell, of Counsel, and the Respondent by Mr A. See of Freehills Lawyers. The following individuals appeared as witnesses before the Commission:
Witnesses for the Applicant:
WITNESS |
TITLE |
Mr Gary Broad |
Applicant |
Dr John Schneider |
Specialist in occupational medicine |
Mr Steven Pierce |
District Vice-President, CFMEU, Mining and Energy Division, Queensland |
Witnesses for the Respondent:
Mr Paul Fox |
Manager, Employee Services |
Mr Alex Walters |
Senior Safety Adviser, Blair Athol Coal Mine |
Dr Peter Fenner |
Nominated Medical Adviser (NMA) to the Blair Athol Coal Mine |
[4] Witness statements on behalf of each of the witnesses were tendered in evidence, in addition to a series of other documents. After the evidence in this matter was heard, each party prepared closing written submissions. Oral submissions were then provided, with reference to the written materials.
[5] Whilst specific reference has not been made to all of the evidence, documents and submissions provided in this matter before the Commission, all such material has been given full consideration.
RELEVANT LEGISLATION
[6] Subsection 170CE(1)(a) of the Act provides:
"(1) Subject to subsections (5) and (5A), an Employee whose employment has been terminated by the Employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable..."
[7] In dealing with such an application, the Commission must ensure that the objectives of Division 3 of Part VIA of the Act are met. This places an onus on the Commission, in accordance with s. 170CA(2):
"...to ensure that, in consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the Employer and Employee concerned."
[8] Further to this, subsection 170CG(3) of the Act provides:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the Employee or to the operational requirements of the Employer's undertaking, establishment or service; and
(b) whether the Employee was notified of that reason; and
(c) whether the Employee was given an opportunity to respond to any reason related to the capacity or conduct of the Employee; and
(d) if the termination related to unsatisfactory performance by the Employee-whether the Employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the Employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant."
BACKGROUND
[9] The Respondent operates an open cut coal mine at Blair Athol. The Applicant commenced employment with the Respondent at Blair Athol on 24 October 1983 as a production Employee in the position of Plant Operator. This position involved the operation of various machines on the mine, including a loader, a dozer, excavators, haul trucks, an electric face shovel and the occasional use of a sledge hammer.1
[10] The Applicant's employment was terminated on 15 November 2002 due to his incapacity to work since November 2001. This incapacity resulted from a back injury sustained away from work.2 The Respondent noted in the termination advice that the decision to terminate was based on medical advice received from the Nominated Medical Adviser (NMA) that the Applicant was permanently unfit to perform the requirements of his position as a result of his medical condition. It also stated that the Applicant was considered unfit to perform any suitable alternative roles with the Respondent.
[11] The Applicant is 58 years of age. He had been employed with the Respondent for 19 years prior to the termination of his employment. The Respondent conceded that the termination did not relate to performance, but to his physical incapacity to perform his role.3
[12] The Applicant was informed, by a letter dated 30 September 2002, that if the Respondent was not able to identify a satisfactory solution to accommodate his medical restrictions, his employment may be terminated.4 The Applicant and his representatives from the Construction, Forestry, Mining and Energy Union (the Union) put forward alternative options to termination, but these were not acceptable to the Respondent given the medical restrictions. The Respondent then advised the Applicant on 7 November 2002 that it was considering terminating his employment.5 On 13 November 2002, the Applicant's Union restated that the Applicant should be returned to his previous role, or be used as a supervisor.
[13] The termination of the Applicant's employment was communicated by a letter dated 15 November 20026 and a follow-up telephone call from Mr Fox (Manager, Employee Services) to the Applicant.
THE INJURY
[14] The Applicant stated that he first experienced some pain in his back whilst bending over to put on his shoes in July 2001, when he was on long service leave. The Applicant consequently visited a doctor, whereupon a scan ruled out a possible kidney stone, but revealed a gall stone, which was not subsequently removed. The Applicant said that he suffered intermittent pain in the lower left hand side of his back between mid-July and mid-August, but was then pain-free. He returned to work in September 2001 and did not experience any back pain in operating the designated machinery and in performing associated tasks between September and November 2001.
[15] The Applicant stated that whilst at home on 20 November 2001, he experienced lower back pain once again. The pain was less than previously experienced, but caused him difficulty in walking, and accordingly, he called in sick for his rostered night shift on that date.
[16] As the back pain had continued, the Applicant attended his local General Practitioner, Dr Ramhan, on 21 November 2001. Dr Ramhan certified him unfit to work from 21-27 November 2001, and advised him to undertake an x-ray in Emerald.7
[17] The Applicant attended for the x-ray, even though he was not experiencing any pain and had therefore considered not proceeding. Dr Ramhan assessed that the x-ray showed disc movement of the lower vertebrae and advised the Applicant that he should not lift or drive machinery, and that he should consult a specialist.8
[18] The Applicant attended Dr Shaw, an Orthopaedic Surgeon in Mackay, on the earliest available appointment date of 24 January 2002. Dr Shaw required additional x-rays of the Applicant's lower left side to be taken on that day. Dr Shaw provided a medical certificate allowing the Applicant to return to work on full duties9 on Monday 28 January 2002, but also advised the Applicant that he should not drive vibrating vehicles or lift heavy weights, and that he should consult a physiotherapist.
[19] The back pain returned on 25 January 2002. Accordingly, the Applicant obtained a referral from Dr Ramhan to consult an Orthopaedic Surgeon, Dr Cooke. The Applicant consulted Dr Cooke on 26 January 2002. The Applicant stated that after examining the x-rays, Dr Cooke increased his anti-inflammatory medication dosage to 500 grams twice daily, and advised him to return to work, stating that "...the damage was already done, and no more damage could be done."10
[20] The Applicant consulted Dr Ramhan on 28 January 2002, who examined the x-rays. The Applicant stated that Dr Ramhan conceded to the expert opinions of the Orthopaedic Surgeons to authorise a return to work.11
[21] When the Applicant returned to work on 30 January 2002, he provided his return to work certificate for the consideration of Mr Geoff Butler (Shift Foreman) and Ms Fredericks (Occupational Health Officer). In accordance with the Fitness for Duty Standard, the Applicant also told Ms Fredericks that Dr Shaw had advised him that he should not do any heavy lifting or ride on vibrating machinery.12 In addition, the Applicant informed Ms Fredericks that he was experiencing intermittent back pain, and on request from Ms Fredericks, he agreed to permit her to contact Dr Shaw. Ms Fredericks was unable to contact Dr Shaw, and the Applicant stated that she advised him not to drive any machinery that day. In fact, due to his period of absence from work he proceeded to a refresher course on mine rules with the foreman, and was then advised to return home on sick leave.
[22] The Applicant stated that he was prescribed back exercises by two separate physiotherapists which he attended on 1 February 2002 and 4 February 2002.
HEALTH ASSESSMENT
[23] Health assessments13 of the Applicant were conducted under the Coal Mine Workers Health Scheme (the Scheme) as set out in the Coal Mining Health and Safety Regulation 2001 (the Coal Regulation). These were undertaken to determine whether the Applicant was able to carry out his tasks at the mine.
[24] The Respondent forwarded a letter to the Applicant dated 6 February 2002, advising him to attend a Coal Board medical with Dr Fenner.14 The reasons for the medical were noted as follows:-
"-Dr Shaw provided you with a Medical Certificate clearing you to return to work on normal duties.
-You reported that Dr Shaw stated you should avoid vibrating machinery and heavy lifting.
-As your normal duties involve operating vibrating machinery and some lifting, Dr Shaw was contacted for clarification. Dr Shaw stated you were fit for your normal duties however you were to avoid vibrating equipment and heavy lifting wherever possible.
-As the information received was conflicting, ie your normal duties involve operating vibrating machinery and some lifting, a discussion was held with Dr Peter Fenner (Nominated Medical Adviser for Blair Athol Coal). Dr Fenner has a knowledge and interest in Occupational Medicine and is aware of your role at Blair Athol Coal. He would like you to have a Coal Board Medical to provide us with information on your current status and your ability to perform your normal duties.
-Your previous Coal Board Medical was December 2000. You were assessed (according to BAC Medical Frequency Assessment & Record Chart) as requiring your next medical in December 2001."15
[25] The Applicant, in completing a questionnaire for the medical assessment with Dr Fenner, confirmed that his work did not cause his back to ache.16
[26] The conclusion of this medical assessment with Dr Fenner conducted on 7 February 2002 was that the Applicant was "Permanently unfit for plant operator". His heart, blood pressure, back, knees and cholesterol level were cited as reasons for this conclusion.
[27] Dr Schneider provided a second health assessment in accordance with s48(2) of the Coal Regulation on 27 March 2002, which stated that the Applicant was fit to undertake his current position with restrictions noted for his vision, operation of heavy vehicles and heavy manual handling.
[28] In correspondence from Dr Fenner to the Applicant dated 2 May 2002, Dr Fenner stated:
"There is a difference of opinion between Dr Schneider and myself. With this in mind, I have decided you should undergo a Functional Capacity Evaluation".17
[29] The Union objected to this additional testing on the basis that it was not a step included in the review of a health assessment under the Coal Regulation.18 In response to this objection, Mr Fox replied to Mr Barnes as follows:
"Dear Mr Barnes/Mr Broad
Re: Gary Broad Senior
I refer to your letter dated 13 May 2002.
The request for Mr Broad to attend an appointment with Jenny Legge, Occupational Therapist, was made by Dr Fenner. We received a copy of Dr Fenner's letter to Mr Broad of 2 May 2002. We have not seen a copy of Dr Schneider's assessment or discussed it with Dr Fenner.
It is clear from Dr Fenner's letter that he is aware of his obligation under s 48(4)(b) of the Regulations to review his original assessment having regard to the further assessment and make a decision in respect of Mr Broad's fitness for work and notify BAC accordingly. It also appears that he would like further information before making a final decision. While the Act does not require that approach we would not have thought it is precluded.
Given Mr Broad's condition, we are surprised with his decision and that he would not be keen to take advantage of the opportunity for specialist review. However, it is ultimately a matter for Mr Broad as to whether he wishes to attend on Jenny Legge or not.
In any event, if Mr Broad refuses to attend as requested, Dr Fenner will have to proceed to come to a decision and advise BAC. You should be aware that if Dr Fenner does not change his view that Mr Broad is permanently unfit for his role, then BAC will be considering terminating Mr Broad's employment.
BAC has met its obligations under s.48(2) of the Act. We have at all times acted in accordance with correct safety and injury management practices and in the best interests of Mr Broad. We would be happy to meet with Mr Broad to discuss these issues and encourage him to attend on Jenny Legge, as requested by Dr Fenner.
I would be happy to hear from Mr Broad as to a convenient time to meet with him in the week of 3 to 7 June 2002. I have set this timeframe, as I will be away from 22 May to 3 June. If at that time, Mr Broad still does not wish to attend for further assessment, we will request Dr Fenner to make a decision as to Mr Broad's fitness for work. In the meantime, if Mr Broad changes his mind and wishes to arrange an appointment with Ms Legge, he should proceed to do so."19
[30] The Applicant subsequently agreed to undergo the Functional Capacity Evaluation. That Evaluation, undertaken on 6 June 2002, recorded the following information on the Applicant's medical history from an interview conducted at that time:
"..Past medical history is significant for ORIF Left tibia/fibula fracture in 1961 and Right wrist fracture in 1997. Gary reported a previous episode of lower back pain after he rolled a dozer about 3yrs ago. He did not require any treatment or time off work. He reports over a 20yr history of intermittent lower back pain. Gary also reported a gradual onset in neck pain over the last few months.
Current complaints
Gary reports that he has "a bit of back pain but not stopping me from doing my job". He describes a generalised lower back pain, particularly over the lower Left, of a deep ache nature. It is aggravated by sitting >3hrs, standing >½ hr and lying down after a few hours. He reported no difficulty with walking or driving. Pain is relieved by changing position or taking Naprosyn. Gary also reported an intermittent sharp Left-sided neck pain without any specific aggravating factors and relieved with Panadol. Gary reported no other complaints. He denied any pins and needles or numbness, leg pain or weakness or clicks and pops in his back...
...Functional Capacity Evaluation was performed to assist in determining Mr Broad's ability to safely perform the key requirements of his job...
...With respect to Gary's ability to safely perform the key requirements of his job, the following comments can be made:
a. Gary could safely access and egress the required equipment
b. Gary would be restricted in his ability to rotate for enhancing visibility whilst in a seated position.
c. Gary's tolerance to sustained sitting, particularly with the addition of vibration, rocking, rolling and jerking is questionable. Based on his diagnosis and radiological findings it would not be recommended for him to return to operating plant at high likelihood of these circumstances (e.g. dozer, grader, excavator). Operation of the shovel and haul trucks would also put him in this category whilst digging and loading respectively, however, it would not be to the same degree.
d. Gary's ability to safely handle the shovel cable and teeth will be considered once exact requirements are made available."20
[31] In correspondence to Mr Fox dated 12 June 2002, Dr Fenner reported on the restrictions of the Coal Board Medical as follows:
"After the recent Functional Capacity Evaluation by JL Rehab:-
It is apparent that Gary is unfit to do his current job of machinery operator as the roughness and vibration would irritate his back and he does not have sufficient rotation of his back to observe the whole area around the machine.
Gary is fit to lift weights to 23kg but I would suggest a maximum of 20kg and that this be strictly policed.
Gary has very weak abdominal muscles and this will make him very prone to further back injuries.
Gary cannot effectively fully squat to do work or prepare equipment although he is able to briefly stoop to the floor to lift.
He is somewhat unfit and as such should not be placed in any area of recurrent climbing or walking up an incline or any hard physical labour until he achieves a higher standard of aerobic fitness.
Suggestions:
Gary should undertake a fitness campaign on abdominal strength training to make himself as fit as possible for tasks at the mine. I feel that before Jenny Legge or myself place him into any position in the mine the job description should be assessed before approval is given.
Fit for work?
Gary would currently be unfit until I have some further information on possible medical risks. I require further information on these from his Doctor and have requested these directly from Gary. If these results are satisfactory Gary would be fit for work within the above restrictions."21
[32] Dr Schneider, in correspondence to the Union dated 4 July 2002, critiqued the review of Dr Fenner's communication to Mr P Fox dated 12 June 2002. With regard to restrictions on the Applicant operating heavy machinery due to vibrating and rotational difficulties, he stated that the standard suspension seating on the heavy vehicles at the mine site would adequately support the Applicant's frame. He considered that the Applicant would not be:
"..at any greater risk than any other machine operator of his age operating the same vehicle in the same conditions."22
[33] Dr Schneider also noted that the operation of the stationary equipment should not present problems for the Applicant. He identified that the Applicant had mild restriction in rotation, but not gross deficiencies. In this regard, Dr Schneider considered that the external mirrors fitted to the equipment to improve the field of vision of operations would assist even if there was severe impairment in the Applicant's neck and trunk.
[34] With respect to restrictions on heavy lifting to a maximum of 20 kilograms, Dr Schneider indicated that this could be accommodated by manual handling training.
[35] Dr Fenner concluded that the Applicant had very weak abdominal muscles which would make him prone to further back injuries. Dr Schneider concurred with this assessment; however, he expected that the Applicant's commencement of an exercise program would improve his muscle strength.
[36] With respect to the Applicant's difficulty in squatting to prepare equipment, Dr Schneider did not assess this restriction, but stated that he had not seen the Functional Capacity Evaluation.
[37] With regard to the Applicant's reduced level of aerobic fitness, which was noted by Dr Fenner as restricting any recurrent climbing if required, Dr Schneider stated that high levels of aerobic fitness are not required in mobile equipment operators, and generally such is not found.
[38] The Report by Dr Fenner of 5 August 2002 following the review of Dr Schneider's health assessment report ("the second opinion") and other material, including the Functional Capacity Evaluation, stated:
"...Dr Schneider's assessment
I will cover his report under the same dot points:
Dr Schneider feels that using heavy vehicles on the mine site that had suspension seating to reduce vibration would be acceptable. However, he must also consider that Gary needs to climb into these vehicles and machinery and this may put him at risk of injury.
If Gary is able to access certain equipment easily then it is essential that he is tested to see that he can view all area fore, aft [sic] and both sides of his equipment, to ensure that the mirrors give sufficient coverage, as Gary is unable to twist around -- with the condition of his spine it would be most inadvisable to twist and move at the same time as any bump or jerk whilst his spine was rotated would place him at an even greater risk.
Although Dr Schneider feels there were no gross deficiencies in rotation both KL Rehab and myself disagree with his assessment. Dr Schneider is not in possession of Gary's CT scan. The CT scan shows fairly severe degenerative changes and narrowing of the spinal canal. These two factors together place him at high risk of injury whilst twisting and lifting or jerking if these occur either independently and especially so if they occur at the same time...
...Having reviewed the BAC job requirements, my final and overall assessment of the whole situation is that Gary cannot carry out his required work tasks without a highly significant risk of back injury. Because of this I believe that it is an unacceptable risk for the mine to allow Gary to work in anything other than non-physical work.
I believe that it must be strongly emphasised to Gary that any inadvisable physical activity, whether it is at work or in his own pastimes or hobbies, puts him at great risk of injury." 23
[39] In correspondence to Mr Paul Fox, dated 23 August 2002, the Union proposed a list of possible roles at the site that the Applicant could perform. The Report of 31 August 2002, which followed an extensive site review and consideration of alternative positions by Dr Fenner, stated:
"...I still feel that Gary remains at high risk of back injuries in all the work and tasks that I have seen at Blair Athol over the past two days. He is at severe risk to himself and a lifetime of chronic pain and reduced quality of life and I do not feel that he should be exposed to it."24
[40] Dr Fenner undertook an assessment of the proposed roles for the Applicant after the "re-assessment" of the mine site equipment, environment and positions.25 He concluded, after taking into account the job demands manual for Blair Athol and the task assessments done by the Occupational Therapist for various roles on the site, that each position involved recurrent bending, twisting or lifting requirements in excess of the Applicant's limitations. He maintained his conclusion, after considering the whole situation, that the Applicant remained at a high risk of back injuries in all the work and tasks that he had viewed at the Blair Athol Mine site re-assessment.
[41] In correspondence dated 30 September 2002, the Respondent advised the Applicant that it had considered the proposed roles26 in consultation with the NMA, and assessed options for special assistance, job modification and the existence of any alternative positions that would accommodate the Applicant's medical restrictions, but it had not been able to identify any feasible options, and therefore wished to canvass any alternatives with the Applicant. Discussions were held between the Applicant and the Union with the Respondent. The Union contended that based on the medical report which it had, the Applicant would be best employed either in the position he had held, or as a supervisor, given that he had some relevant experience in this regard.27
[42] After a consideration of these roles, the Respondent forwarded the letter of termination to the Applicant dated 15 November 2002. This correspondence stated that the Applicant had been prevented from working since November 2001 due to a back injury sustained outside of work, and that the NMA had diagnosed him as permanently unfit to perform the requirements of his position due to the medical condition.
[43] The Respondent stated that in conjunction with the NMA it had considered the various medical opinions on the Applicant's condition, the prospects of rehabilitation, any suitable alternative roles and the feasibility of specialist job aids.
[44] The Respondent stated:
"...Unfortunately these initiatives have confirmed that your medical condition prevents you from safely performing your role, or any suitable alternative roles at BAC. As a result, on 7th November 2002 we informed you that the decision had been made to terminate your employment. You were given until 5pm on Wednesday 13th November 2002 to raise anything further that you would like the Company to consider prior to implementing this decision.
On 13th November we received your facsimile proposing that you be returned to your current role or alternatively redeployed into a supervisory position. These proposals have been considered and are not accepted by us. Based upon the medical opinion available to us, you are not able to return to your current role. We would be breaching our duty of care by placing you back into a position that you cannot perform without significant risk of further serious injury. With respect to the supervisor position, you do not meet the competencies required of a supervisor nor do we have a supervisor's position vacant at BAC."28
APPLICANT'S SUBMISSIONS
[45] The Applicant's case was that the termination was substantially and procedurally flawed in relation to the determined incapacity, as the Respondent did not consider or attempt to apply the Rehabilitation Policy. In addition, the Applicant relied on the inconsistency between the evolving medical reports of Dr Fenner and Dr Schneider with respect to the Applicant's return to work. Further, the Applicant pointed to the procedural deficiency of Mr Fox (who had responsibility for managing the process) in not sighting and therefore not taking into consideration Dr Schneider's report until this matter was the subject of a dispute conference before the Commission. The matter was filed pursuant to s. 99 of the Act and heard before Commissioner Bacon on 21 October 2002, prior to the termination of the Applicant's employment and some months after Dr Schneider's report had been prepared.29
[46] It was also contended that by this time the decision to terminate the Applicant had already been made, and that after its receipt of Dr Fenner's report on the 5 August 2002, the Respondent was simply "going through the motions".30
[47] Mr Merrell referred to the report of Dr Fenner, which proposed that the Respondent (rather than the Applicant, as is the focus of the Scheme) would be exposed to an unacceptable risk of legal liability if the Applicant was returned to anything other than non-physical work.
[48] In contending that a valid reason did not exist for the termination, the Applicant pointed to the unlawful actioning of the Scheme, the lack of consideration of the Fitness for Duty Standard and Rehabilitation Policy, the lack of consultation with Dr Shaw or Dr Rahman (the Applicant's medical specialists) and the disingenuous nature of Dr Fenner's tour of the mine and assessment (with Mr Fox) of suitable alternative roles at the workplace for the Applicant. He emphasised that all of the roles considered included physical work, in direct conflict with the opinion of Dr Fenner that the Applicant's incapacity would not allow him to perform such work. In addition, it was argued that the Report provided by Dr Fenner on 5 August 2002 represented a further report, rather than a review, and as such, the Applicant should have been provided with an opportunity to access a further second opinion in accordance with the Scheme.
[49] In relation to whether there was a valid reason for the termination of the Applicant's employment, the argument was also pressed that Dr Fenner's assessment of the Applicant's physical capacity in his evidence was not totally determined or conclusive. It was stated on behalf of the Applicant:
"Dr Fenner, in cross-examination, was equivocal in respect of his evidence in chief about Mr Broad's capacity for work. Dr Fenner's evidence in cross-examination was that Mr Broad could have carried out work at Blair Athol Coal subject to the policed restrictions imposed by J L Rehabilitation and subject to Mr Broad undertaking a programme of work conditioning, strengthening his stomach muscles and improving his overall general level of fitness and health31, all of which could have been implemented and/or undertaken as part of a Rehabilitation Program implemented through the application of the Rehabilitation Policy.
However, it is submitted, that after Dr Fenner's report of 5 August 2002, where he expressed the view that "having reviewed the BAC job requirements, my final and overall assessment of the whole situation is that Gary cannot carry out his required work tasks without a high significant risk of back injury. Because of this I believe that it is an unacceptable risk for the mine to allow Gary to work in anything other than non-physical work", the respondent did everything to ensure that Dr Fenner's opinion of that date could be implemented."32
[50] It was argued on behalf of the Applicant that the Respondent's determination of the Applicant's incapacity was based on opinions provided by Dr Fenner in his capacity as the NMA for the Scheme, which it argued was not lawfully enlivened. Accordingly, Mr Merrell argued that the health assessments conducted by Dr Fenner, acting solely as the NMA under the Scheme, were not validly conducted.
[51] Reference was made to the health assessments of the Applicant conducted by Dr Fenner, and the associated written reports. The second report was in the approved form as per the definition of "health assessment"33 and "health assessment report"34, respectively defined in the Coal Regulation as: "..an assessment of a person's health under section 46" and "...a report, in the approved form, about a health assessment, or medical examination, of a person". It was contended on behalf of the Applicant that if the Scheme was, in fact, lawfully activated, it was not complied with, as the Applicant was only afforded the opportunity to submit a second opinion after the first report of Dr Fenner.35
[52] In addition, Mr Merrell emphasised that Dr Schneider's report (being a second opinion) was not received by Mr Fox until 21 October 2002. Dr Schneider's report stated that, with certain restrictions, the Applicant could return to work.36 After Dr Fenner received Dr Schneider's report, he recommended that the Applicant should undertake a Functional Capacity Evaluation by J L Rehabilitation. Dr Fenner assessed alternative positions for the Applicant at the site on 29 and 30 August 2002. He reported on this process on 31 August 2002, stating that all of the positions involved physical work. He also gave an oral report to Mr Fox on the alternative positions on 20 September 2002.
[53] It was argued that there was no evidence to demonstrate that the Respondent had appointed Dr Fenner as the specified medical practitioner, and that the Scheme was unlawfully activated, as Dr Fenner (the NMA) decided that a health assessment of the Applicant should be conducted of his own volition37. It was argued that pursuant to the Scheme, this is not one of the three ways of activating a health assessment under s. 46(4) of the Coal Regulation.
[54] The arguments emphasised the procedural deficiencies of the assessment of the Applicant's employment capacity, given that even if the Respondent had medical evidence indicating that there would be an unacceptable level of risk of injury to the Applicant if he were to return to his Plant Operator position, such medical advice did not justify the termination, as the Respondent's Fitness for Duty Statement38 at section 4.3 contemplates the rehabilitation of an Employee who is experiencing an injury which did not derive from the workplace. The Rehabilitation Program is contained in the Blair Athol Coal Incident Management Standard.39
[55] It was emphasised that the standard Rehabilitation Programs utilise the Employee's own treating physicians, rather than an NMA. However, in the current circumstances, Mr Merrell emphasised that after the NMA was engaged, the Applicant's original personal treating physicians were given no further role.
[56] One of the main arguments pursued on behalf of the Applicant was that at no time after Dr Fenner's report of 7 February 200240 did the Respondent consider or apply the Fitness for Duty Standard or the Rehabilitation Policy to the Applicant, and accordingly, it was suggested that he was not provided with a reasonable opportunity to be rehabilitated back into the workplace, as per the Program. It was argued on behalf of the Applicant that there could be no sound, defensible or well-founded assessment of his capacity until that policy had been applied to him, and that the conduct of the Respondent was merely to justify the termination of the Applicant's employment. 41
[57] There was also significant reliance placed on the difference in medical opinion, as provided by Dr Schneider in the further assessment in accordance with s. 48(2) of the Coal Regulation, and what is referred to as the `equivocal' nature of Dr Fenner's medical reports.
[58] Mr Merrell argued that Dr Fenner incorrectly assessed the Applicant's health by determining whether the Applicant was able to conduct his duties at the mine without creating an unacceptable level of risk to the Employer, rather than to the Employee, as is the determination central to the Scheme.
[59] In this regard, the Applicant's closing submissions made reference to the legislative definition of risk:
"Risk" is not defined in the Coal Regulation but it is defined in the Coal Act [Coal Mining Safety and Health Act 1999] at s.18 ("Meaning of "risk"") and provides as follows:
"18.(1) "Risk" means the risk of injury or illness to a person arising out of a hazard.
(2) Risk is measured in terms of consequences and likelihood."
Section 19 of the Coal Act ("Meaning of "hazard"") provides as follows:
"19. A "hazard" is a single thing or situation with potential to cause injury or illness to a person."
[60] Mr Merrell submitted:
"...when regard is had to these definitions provided in the Act (which are applicable to the same words used in the Coal Regulation: see s. 32AA of the Acts Interpretation Act 1954 (Qld)) the focus of a health assessment under the Scheme is to determine whether the worker is able to carry out the worker's task at the mine without creating an unacceptable level of risk of injury or illness to the worker arising out of a single thing or situation with potential to cause injury or illness to a person."42
RESPONDENT'S SUBMISSIONS
[61] The Respondent submitted that the termination was necessary on the basis that the Applicant's medical condition prevented him from safely performing his role or any suitable alternative role at the workplace, as determined by the NMA (Dr Fenner), which was a valid course of action in line with Hobbs v Capricorn Coal Management Pty Ltd.43
[62] It was submitted that the Respondent took the following exhaustive steps between November 2001 and November 2002:
· "complied with its statutory and common law duties to the Applicant to ensure he was not put at risk of injury;
· liased with the BAC nominated medical adviser to ensure the processes set out in the Coal Mining Safety and Health Regulation were followed;
· liased with the nominated medical adviser to conclude that the Applicant was not fit for suitable alternative roles on site;
· liased with the nominated medical adviser to conclude that there were no specialist medical aids or other assistance which might assist the Applicant return safely to work;
· advised the Applicant of the possibility of termination and considered proposals that the Applicant and his union put to BAC as an alternative to termination;
· gave the Applicant an opportunity to respond to the reason for his termination; and
· kept the Applicant on full pay for more than 5 months (approximately $35,000) after his leave entitlements ran out."44
[63] It was contended on behalf of the Respondent that Dr Fenner took all reasonable steps and collected all information necessary to test his diagnosis. That is, he sought extra medical records from the Applicant's General Practitioner and organised the Functional Capacity Evaluation to further assess the Applicant's ability to return to his position.
[64] The Respondent emphasised that prior to a thorough review of alternative positions to accommodate the Applicant's incapacity, consultation was undertaken with both the Applicant and the Union.
[65] The Respondent maintained that whilst the Applicant's incapacity was contested in this application, a critical analysis of Dr Fenner's medical opinion was irrelevant, as the Respondent was entitled to rely on Dr Fenner's assessment in accordance with Hobbs v Capricorn Coal Management.45
[66] The submissions on behalf of the Respondent referred to the fact that Dr Schneider had not been to the Blair Athol Mine,46 and therefore was not as familiar with the work environment, in contrast with Dr Fenner. The Respondent's submissions also made reference to Dr Schneider's eventual admission that the Functional Capacity Evaluation would have been useful in further assessing the Applicant's ability to undertake work at the workplace.47
[67] The Respondent refuted what it considered was an allegation by the Applicant that the Respondent had used the NMA to facilitate the termination. The Respondent referred to Dr Fenner's evidence, which stressed his independence and his focus as a medical practitioner on the patient, rather than protecting the Company's interests. With respect to the argument that the medical assessment was inappropriately undertaken, it was contended that the circumstances of Dr Fenner's medical assessment48 were irrelevant, as this process simply confirmed the medical condition which lead to the termination (not the process per se), and that the symptoms of the condition had been revealed to the Respondent by the Applicant.
[68] It was argued that the health and safety obligations of the Employer are largely outside of s. 46 of the Coal Regulation and that the requirement for an Employee to attend a medical examination to assess his or her fitness for work generally accords with an Employer's obligations under the Coal Mining Safety and Health Act 1999 (the Coal Act), and at common law.
[69] These common law obligations were argued with reference to the case of Blackadder v Ramsey Butchering Services Pty Ltd49. The Respondent's submissions summarised the effect of this case as follows:
"In the Blackadder case, Justice Madgwick concluded that there should now be implied by law into contracts of employment terms to the effect that:
(a) it is essential for compliance with workplace health and safety duties that an Employer be able, where necessary, to require an Employee to furnish particulars and/or medical evidence affirming the Employee's continuing fitness to undertake duties; and
(b) an Employer should, where there is a genuine indication of a need for it, also be able to require an Employee, on reasonable terms, to attend a medical examination to confirm their fitness for work."50
Enlivenment of the Coal Mine Workers' Health Scheme
[70] The Coal Mine Workers' Health Scheme is established under Part 6, Division 2 of the Coal Regulation, which is established pursuant to the Coal Act. Dr Fenner acted as the NMA, as per the legislation.51
[71] Section 46 of Part 6, sub-division 3 of the Coal Regulation ("Health assessments and health monitoring"), relevantly provides as follows:
"46 Health assessment
(1) The employer must ensure a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker.
(2) The assessment must be carried out -
(a) in accordance with the instructions, and covering the matters, in the approved form; and
(b) by or under the supervision of, the nominated medical adviser.
(3) The assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, or is employed, the nominated medical advisor considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk.
The assessment must be carried out -
(a) before the person is employed as a coal mine worker; and
(b) if the nominated medical advisor decides the assessment is necessary after being given a notice under s.49 (3) - periodically, as decided by the nominated medical advisor; and
(c) otherwise, periodically, as necessary, but at least once every 5 years..."52
[72] Section 48 of the Coal Regulation ("Reviewing health assessment report") relevantly provides as follows:
"(1) This section applies if the employer is given a health assessment report (the "original health assessment report") about a coal mine worker showing a worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk.
(2) Before taking action to terminate the worker's employment or demote the worker, the employer must give -
(a) the worker a reasonable opportunity to undergo a further health assessment from another nominated medical advisor or relevant medical specialist; and
(b) the nominated medical advisor or medical specialist details of the worker's tasks.
(3) Sub section (4) applies if the worker -
(a) undergoes the further heath assessment; and
(b) gives the employer a report about the assessment (the "further health assessment report"), signed by the nominated medical advisor or medical specialist who carried out the assessment.
(4) The employer must -
(a) give the nominated medical advisor who gave the employer the original health assessment report a copy of the further health assessment report; and
(b) ask the nominated medical advisor to -
(i) review the original health assessment report having regard to the further health assessment report; and
(ii) give the employer a report about the review."53
[73] Section 49 of the Coal Regulation ("Monitoring for workers' exposure to hazards") provides as follows:
"(1) A coal mine's safety and health management system must provide for periodic monitoring of the level of risk from hazards at the mine that are likely to create an unacceptable level of risk.
(2) The system must also provide for notice of any appreciable increase in the level of risk to a coalmine worker at the mine to be given to the workers' Employer.
(3) An employer who is given a notice under sub-section (2) must give a copy of the notice to the employer's nominated medical advisor..."54
[74] Section 46 of the Coal Regulation provides for health assessments by the NMA at the instigation of the Employer in three circumstances, as per s. 46(4). The three options are: firstly, before employment as a coal mine worker (which is clearly not applicable in the current circumstances); secondly, if the NMA decides the assessment is necessary after being given a notice under s. 46(4)(b); and thirdly, periodically as necessary, but at least once every five years.
[75] In the current circumstances, the Applicant's scheduled health assessment was due in December 2001. Accordingly, the assessment could have been undertaken in line with this requirement. The Respondent did not provide a "notice" (as per s. 46(4)(b)) to the NMA; however, the Applicant's medical certificate and his complaint of pain were raised and considered by the Respondent with Dr Fenner. As a result of this action by the Respondent, a medical examination was conducted by Dr Fenner in February 2002. The evidence of Mr Walters was that he approached Dr Fenner to seek his advice about the protocol of approaching Dr Shaw, the Applicant's Orthopaedic medical specialist.55 The question about whether the Applicant should undertake a medical assessment was recommended by Dr Fenner. However, in the circumstances where the Applicant revealed he was experiencing pain, the Respondent was presented with conflicting medical reports, and the Applicant was overdue for his scheduled 2001 Coal Board Medical, it was reasonable for such a medical assessment to be initiated.
[76] The medical assessment was a legitimate course of events in ascertaining the risk of injury to the Applicant. The actions of the Respondent were reasonable and accorded with the objective to assess the situation and to ensure that the position was clear when faced with conflicting information about an Employee's medical condition, and an Employee stating that he was still experiencing pain due to the injury. That is, whilst the Applicant had a clearance to return to work, he appropriately volunteered information that he had been experiencing back pain in accordance with the Fitness for Duty Standard. Perhaps this confirmation of the Applicant's condition could have been done via the Applicant's treating doctors, Dr Ramhan or Dr Shaw, who Ms Fredericks (the Occupational Health Officer) had originally endeavoured to contact upon the Applicant's return to work. However, it was their certificates and the Applicant's declaration of ongoing pain that caused the confusion.
[77] The use of the Applicant's own treating doctors is supported by the "Rehabilitation Policy", whereby their involvement is required to monitor any Rehabilitation Program undertaken. However, it is logical for an Employer "to require an Employee, on reasonable terms, to attend a medical examination to confirm his or her fitness [for work]".56 Proceeding to the medical assessment by Dr Fenner (described as the NMA in the correspondence to the Applicant) was not rejected by the Applicant.
[78] In proceeding with the Scheme, the Applicant and his Union representatives were briefed on this course of action. It must be noted that a second opinion in relation to the NMA's health assessment was sought by the Applicant in further discharge of the Scheme.
Fitness for Duty Standard
[79] It was argued on behalf of the Applicant that, on the restrictions identified by Dr Schneider and by J L Rehabilitation in the Functional Capacity Evaluation, the Applicant could have been returned to his position, or an alternative one. In addition, it was contended on behalf of the Applicant that any risk of injury would have been reduced to an acceptable level by the implementation of a Rehabilitation Policy focussed on improving the Applicant's overall fitness. There was evidence that the Rehabilitation Policy had been applied to another Employee.57 Accordingly, Mr Merrell suggested that the Respondent had applied comparative differential treatment to the Applicant.
[80] The Respondent's "Fitness for Duty Standard", as reviewed on 25 February 200258, forms part of the health and safety management system. The Respondent's procedure did not apply the Standard or afford the Applicant an opportunity to experience whether he could be rehabilitated, whereas evidence given in confidence showed that the Respondent had applied the Standard to another Employee. The Respondent, however, emphasised that different medical restrictions were in place with that particular Employee. Dr Fenner reasoned that applying the process of rehabilitation contemplated in the Fitness for Duty Standard/Rehabilitation Policy was futile, given that his back injury could not be redressed to accommodate a return to physical work within acceptable limits of risk to him.
[81] The Fitness for Duty Standard sets out its purpose, scope and responsibilities as follows:-
"1. PURPOSE
Pacific Coal expects that all Employees will carry out the full range of accountabilities associated with their role.
Company Employees in leadership roles are required to make judgments regarding an Employee's capacity to meet these accountabilities. In some cases, an Employee's capacity to do so may be limited as a result of:
· Their general level of personal fitness and / or medical conditions
· The consumption of alcohol
· The effect of drugs (prescription pharmaceutical or illicit)
· Fatigue
· Stress
This policy outlines the principles that will be used by leaders in making judgments in individual cases. It also outlines the processes that will be implemented to assist leaders in making those judgments and in addressing issues that may arise.
2. SCOPE
This Policy applies to all Employees, contractors and visitors whilst at a Pacific Coal site.
3. RESPONSIBILITY
All leaders are accountable to ensure that:
· Employees undertake work consistent with their accountabilities; and
· all Employees understand and accept their accountabilities under this Policy.
All Employees are accountable to:
· maintain a level of personal fitness required to meet the requirements of their role;
· attend for work in a state that does not limit their ability to meet these requirements and within the limits outlined within this Policy;
· advise their Supervisor before commencing work of any factor that may influence their fitness for duty. This may result from any of the factors covered by this Policy. Employees must ensure that their Supervisor is advised if they are taking any prescription drug or pharmaceutical product that contains a warning that:
-the product may cause drowsiness; or
-caution should be exercised in the operation of machinery or equipment.
· To advise your Supervisor at any time whilst performing work if they believe that they are unfit to continue for any reason..."59
[82] Section 4.3 of this Standard under `Personal Fitness/Medical Conditions' and `Rehabilitation Program' states:
"4.3 PERSONAL FITNESS / MEDICAL CONDITIONS
An Employee's ability to carry out their range of accountabilities may be affected by the Employee's level of physical fitness, the existence of a medical condition or work/non-work-related injuries.
Where the Company considers that an Employee may not be able to perform the full range of duties, the matter will be discussed with the Employee concerned.
If the Company forms a judgment that the Employee's ability to carry out the full range of duties results from the Employee's general level of personal fitness, the Employee will be placed on a Rehabilitation Program with nominated targets. The Company may seek assistance in the development of this plan from dieticians or other specialist advisors.
Where it appears that the Employee's inability to perform their full range of duties is as a result of a medical condition the Employee may be asked to undertake a medical assessment by a medical practitioner nominated by the Company. The Employee will also be asked to arrange for their personal doctor to provide the relevant medical information to the Company's medical practitioner.
The medical practitioner will be provided with details of the work that the Employee is expected to perform and asked to specify whether the Employee is fit to meet the requirements of the job The medical practitioner may be asked to nominate the work the Employee is fit to perform.
In the event that the medical practitioner determines that the Employee is not fit to perform work, the Employee will be placed on sick leave whilst undertaking a Rehabilitation Program.
If the Employee is capable of performing a limited range of work, and that work is available, the Employee will undertake the work as part of the Rehabilitation Program outlined below. Performance of a limited range of work will only apply whilst the Employee continues to demonstrate commitment to this program by meeting the required targets.
4.3.1 Rehabilitation Program
The primary responsibility to address this type of fitness for work issue rests with the Employees. Employees that have non-work related injuries that may prevent them from performing their normal duties shall contact the rehabilitation officer prior to commencing work.
To assist the Employee the Company will:
- ensure that confidential external counselling under the Employee Assistance Program is available to the Employee; and
- establish a Rehabilitation Program designed to assist the Employee's return to full fitness in conjunction with the medical practitioner or other specialist advisor.
The program will contain nominated targets and review dates. At each review, the medical practitioner or advisor will report to the Company and the Employee on the Employee's progress against the set targets.
If after a reasonable time following treatment and feedback, the medical practitioner or advisor finds that there is no clear and consistent improvement in the Employee's condition, the relevant MRU Manager will review the situation. The Manager will consult the Employee before a final decision is made.
If the Manager determines that the Rehabilitation Program should be terminated, the Employee's future employment with the Company will be reviewed."60
[83] The medical practitioner (Dr Fenner) in this instance determined that the Applicant was not fit to perform his duties and that it was not appropriate to implement the Rehabilitation Program. Dr Fenner's conclusions were that the application of the Rehabilitation Program would not have corrected the permanent injury to the Applicant's back.
[84] Dr Fenner's evidence in relation to his medical assessment of the Applicant refuted the ability of the Applicant to be rehabilitated to his own or alternative positions given the chronic back condition which he diagnosed.61 He stated as follows:
"...never ever, with the problems he had with his back, be really suitable for operating plant, which is extremely wearing on a back." (PN1659);
"...it wouldn't reduce the risk to a satisfactory level that would make it safe for him to bend, stoop or squat for any length of time or to do the job that was required." (PN1779);
"...a stress test and improved fitness would not reduce the risk of being able to get out of a danger area quickly and the consequence of possible injury" (PN1838);
"The risk can always be lowered by strengthening the muscles, but it's not going to get to the stage where Gary would be able to get sufficient fitness to be able to do the job as a plant operator, climbing in and out, bending, stooping" (PN1866);
"...you are not going to be able to strengthen the ankles, the knees, the back, the whole structure's together...because of the changes that are permanent, you're never ever going to reduce the risk to a sufficient level where he'd be able to do a job as a plant operator..." (PN1870);
"...in my opinion you wouldn't get to a level that was satisfactory to prevent risk of the bending and twisting, because the store involves taking stuff off the shelf or off a trolley...and it involves some rotational work, some bending work, some climbing work, which would seem to be the risk." (PN1978);
"The information that I was given on any possible changes was such that I still didn't believe that it would reduce the risk on returning to or going into that sort of work, the ones I'd covered. I'm absolutely certain in my own mind that it would prove an unrealistic expectation to Gary to work there without significant risk to him. And thinking of his health and well being and quality of life, I really believed that I'm correct in that area." (PN1993);
"There had been nothing - no evidence or suggestions proven to me at any time on any changes, any programs, that would reduce the risk to an acceptable level of Gary having an injury. Rehabilitation would definitely help him in himself because I've already said the fitter you can get yourself, the less likely you are to injure yourself. But because of the physical problems that were irreversible, and basically the physical problems that were irreversible is the final line, the risk factors for him would be too much and that he would injure himself" (PN2002);
"...I believe that on the way through that we had discussed, you know, kind of ways of strengthening, ways of changing...at no time could I see any set plan or rehabilitation that would get Gary to a stage where he would be fit to do a plant operator's job without risk of injuring himself." (PN2011).62
[85] In line with this assessment of the injury, Mr Fox advised the Union in correspondence that the Blair Athol Coal Incident Management Standard was applicable to non-work related injuries. However, Mr Fox also stated that in the current circumstances the medical information indicated that the Applicant was "permanently unfit for plant operator" and that rehabilitation was not a viable option as it would not be beneficial to the healing process.63
[86] In assessing the manner in which the health assessment was conducted in comparison with the Scheme, significant weight cannot be afforded to the Applicant's argument in relation to a breach of the Scheme. It was emphasised on behalf of the Applicant that the Fitness for Duty Standard should have been applied, as the Standard states that in the instance where an Employee is unable to perform their full range of duties as a result of a medical condition (as was the case), they may be asked to undertake an assessment by a medical practitioner nominated by the Respondent. This was the case in the current circumstances, as set out in the correspondence to the Applicant of 6 February 2002.
[87] The distinctions in the process undertaken (in comparison with that set out above in the Standard) was that as the medical assessment was conducted by Dr Fenner (the NMA), it therefore took the form of a Coal Board Medical. However, as implementing the Standard would have necessitated a medical assessment (which could have been arranged by the Respondent), the same process as occurred with Dr Fenner legitimately may have been implemented in accordance with the Standard. In addition, faced with conflicting medical information and the fact that the Applicant's scheduled health assessment was due in December 2001, it seems reasonable for the health assessment to have been conducted in the manner undertaken.
Objection to Dr Fenner's Evidence
[88] An objection was made on behalf of the Applicant in relation to paragraphs 51 and 58 of Dr Fenner's Witness Statement. The NMA, in accordance with its statutory role, is designated to provide medical assessments. In this matter, however, Dr Fenner provided comment on the overall termination process from his perspective as an NMA, in terms of a comparison of the Applicant's case with the other matters he had been involved in, and in relation to which there was no evidence before the Commission. Dr Fenner's evidence was relevant as a medical expert and accordingly, I have only considered his evidence in so far as it relates to the assessment of the Applicant's employment capacity in light of his medical condition.
Assessment of the Condition
[89] Dr Fenner sourced additional information specific to the Applicant in the form of a more rigorous assessment of the Employee's physical capacity (in the form of the Functional Capacity Evaluation) undertaken to assess further whether the diagnosis was appropriate. Dr Fenner's diagnosis was reinforced by the results of the Functional Capacity Evaluation. Dr Schneider, in evidence, conceded that Functional Capacity Evaluations can be useful tools.64
[90] Whilst it was argued on behalf of the Applicant that the Respondent had not been at liberty to conduct the health assessment or the Functional Capacity Evaluation undertaken, these actions were proposed in correspondence, rather than directed. In addition, such actions were taken to identify the nature of the Applicant's capacity in light of the fact that when the Applicant had endeavoured to return to work, his supervisors had received a medical certificate indicating clearance for work with restrictions preventing him from fulfilling his duties. In tandem with this, the Applicant had communicated that he was experiencing pain related to the injury.
[91] The Respondent's actions are, in my view, in accordance with the Objects of the Coal Act, which state:
"The objects of this Act are--
(a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and
(b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level."65
[92] Dr Fenner was used by the Respondent to give medical advice66. Accordingly, whether he was acting as the NMA or not, an exploration of the Applicant's medical condition was necessary to ensure that the Applicant was physically capable of returning to work at an acceptable level of risk to himself. In addition, if the Fitness for Duty Standard had been applied, it would have required an examination of the Applicant's physical condition. Section 46(3) of the Coal Regulation states:
"...The assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, the nominated medical adviser considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk."
[93] The debate with regard to the enlivening of the Scheme in the prescribed form of s. 46(4) is diluted when s. 46(5) is considered. The latter section allows for a medical examination conducted by a doctor other than the NMA, or an examination conducted for another purpose, to be accepted. Accordingly, in the current circumstances, the possible flaw in compliance with s. 46(4) of the Coal Regulation is that the NMA himself decided that the health assessment should be undertaken in the absence of the prescribed notice, as argued by the Respondent. However, this is mitigated by the final wording of s. 46(4)(b), which states:
"...If the nominated medical adviser decides the assessment is necessary after being given a notice under section 49(3) - periodically, as decided by the nominated medical adviser..." [emphasis added]
[94] The conclusion of the subsection refers to the NMA making a decision to conduct an assessment. The current circumstances are not such that the NMA was acting unilaterally, as evidenced by the Respondent's correspondence to the Applicant, which advised of the proposed health assessment.
[95] It was also argued that the Applicant was denied the opportunity to have a further health assessment by Dr Schneider after Dr Fenner provided his report of 12 June 2002. I consider that this report (even though it was in the prescribed form for an assessment) was a review of his and Dr Schneider's health assessments and the additional medical information, rather than a fresh medical assessment.
[96] It was argued on behalf of the Applicant that the Respondent's representative, Mr Fox, was not privy to the medical assessments of the Applicant's condition, particularly that of Dr Schneider. However, it was able to rely on the advice of the NMA, who had reviewed the assessments of Dr Schneider, as well as other medical information including the Functional Capacity Evaluation. Accordingly, the information from these assessments was considered by the Respondent prior to the termination and referred to in the termination process. In addition, the Respondent confirmed that it had no objection to Dr Schneider's Report being directly provided to Dr Fenner.67 This was in line with the Union's request for confidentiality of medical information.68
DETERMINING WHETHER THE TERMINATION WAS HARSH, UNJUST OR UNREASONABLE
Section 170CG(3)(a) - Valid Reason
[97] Section 170CG(3)(a) of the Act can essentially be characterised as containing two requirements. Firstly, there must be a valid reason or reasons. Secondly, the reason must be related to the capacity or conduct of the Employee or to the operational requirements of the Employer's undertaking, establishment or service.
[98] Whether there was a valid reason for the termination is only one of four separately specified matters to which the Commission must have regard69.
[99] In determining whether, upon the balance of probabilities, there was a valid reason for the termination,70 the reason must be defensible or justifiable on an objective analysis of the relevant facts.71
[100] In addition, the termination of employment must not be unjust or unfair.72 In this regard, the reason for the termination must be considered in the context of the penalty of termination. It is incumbent on the party which seeks to show a valid reason for the termination to establish this validity.
[101] A valid reason existed for the termination. The Applicant was terminated on the basis of the medical information that deemed him unfit to perform the requirements of his position. Furthermore, on the basis of the Applicant's medical condition, he was also considered unfit to perform any suitable alternative roles with the Respondent. The medical evidence and further information ascertained supported the diagnosis that he could not, without further risk to himself, perform the inherent requirements of his role or those of alternative available positions.
[102] Dr Schneider considered that the Applicant's limitations were temporary in nature and recommended that a further review be conducted. Dr Fenner considered that this suggestion of another review was evidence of Dr Schneider's concerns with the Applicant's ongoing capacity to return to work.73 In light of the assessment of the NMA, the qualified response of Dr Schneider in terms of a suggestion for there to be further periodic re-assessments, and the results of the Functional Capacity Evaluation, which provided a comprehensive assessment of the Applicant's physical tolerance for work, the Respondent's course of action was the most prudent for both the Employer and the Employee.
[103] It was reasonable for the Respondent, in the circumstances of this case, to rely on the medical advice of the NMA, which included a review of a second medical opinion, a Functional Capacity Evaluation, a consideration of further related medical information, and an assessment of the appropriateness of alternative roles and job aids. The Respondent's actions and reliance on the advice were reasonable in line with the opinion of Justice Madgwick, as expressed below:
"In my opinion, essential for compliance with the above duties, that an Employer be able, where necessary, to require an Employee to furnish particulars and/or medical evidence affirming the Employee's continuing fitness to undertake duties. Likewise, an Employer should, where there is a genuine indication of a need for it, also be able to require an Employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
The question whether it is reasonable for an Employer to request an Employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450."74
[104] Dr Fenner undertook a thorough consideration of the Applicant's assessment, particularly as conflicting medical evidence was presented. He recommended a Functional Capacity Evaluation to provide a further assessment of the Applicant's ability to return to duties at the site. There was not a preponderance of medical evidence that the Applicant was fit to return to duties. Even Dr Schneider's assessment was cautious and recommended further periodic assessments.
[105] It is important to emphasise that whilst the Scheme is focussed on the implications to an Employee's health of returning to a work environment that may present a risk of further injury, the Coal Act also presents statutory duty of care repercussions for Employers in making such decisions, together with common law obligations. In this regard, I adopt the reasoning of the Full Bench in Ian Hobbs v Capricorn Coal Management Pty Ltd75:
"Under the Queensland Coal Mining Act76 and rules made under it (to both of which we have earlier referred) onerous obligations are placed on the manager of a coal mine. In these circumstances, it is our view that for the manager (or the employer) to employ in an underground mine a person who that mine's NMA had assessed as medically unfit for underground work, would be to expose the manager (and employer) to considerable risk. This circumstance, in our view, supports Rafaelli C's view that Capcoal had a valid reason for terminating Mr Hobbs' employment."77
[106] Similarly, in this matter the Employer, after being presented with advice of the Applicant's medical condition by the NMA, and satisfying itself about alternative positions based on the limitations on employment and availability of positions, had a valid right to dismiss the Applicant.
Section 170CG(3)(b) - Notification of the Reason
[107] The question of whether the Employee was notified of the reason for termination is largely a question of evidence.
[108] The relevant principle of procedural fairness is that the affected person must be afforded an opportunity to respond to reasons for termination. This requires that an Employee be notified of a valid reason before any decision is taken to terminate their employment. Otherwise, section 170CG(3)(c) would have very little practical effect.78
[109] Under s. 170CG(3)(b), it is not sufficient that the general situation surrounding the termination of employment is put to the Employee.79 Rather, it is incumbent upon the Employer to put to the Employee the explicit grounds upon which the employment is being terminated.80
[110] The Applicant was informed by correspondence dated 21 May 2002 and 30 September 2002 that if his medical restrictions could not be rectified, his employment may be terminated.81 This correspondence arose after the Respondent had been informed of the medical restrictions identified in his health assessments.
[111] The Applicant was further advised by correspondence on 7 November 2002 that the Respondent was considering terminating his employment.82
[112] Dr Fenner, with Mr Fox and personnel from the Respondent, assessed alternative options to the Applicant's termination. The Union also suggested alternatives. The Respondent concluded, on the basis of the medical restrictions and the duties, that there were no suitable alternative available positions, and it was not appropriate to return the Applicant to his original role, or an alternative one, due to the potential risk to him. The termination, and the associated reasons, was communicated to the Applicant by correspondence dated 15 November 2002, and via a telephone call from Mr Fox (Manager, Employee Services).
Section 170CG(3)(c) - Opportunity to Respond
[113] Whether the Employee was given an opportunity to respond to any reason related to the capacity or conduct of the Employee in accordance with s170CG(3)(c) is a question of fact, and consequently will depend upon the particular circumstances of the case.
[114] In Gargan v Australian Bureau of Statistics83, the Employer provided the opportunity for the Employee and her Union to present any material to management which they considered should be taken into account before the decision to revoke her appointment was made. The Employee availed herself of this opportunity and met with officers of the Employer to present her case. Whelan C held that in these circumstances, the requirements of section 170CG(3)(c) had been met.
[115] The Applicant in this case was advised of the outcome of the medical assessment with the NMA. He responded by seeking a second opinion. The Applicant was notified that further medical information was required, including a Functional Capacity Evaluation. The Applicant and his Union brought the matter into dispute pursuant to s. 99 of the Act. In response to the consideration of termination by the Respondent, the Applicant and the Union responded by suggesting alternative roles of employment. Such roles were discussed between the parties and considered by the Respondent. The NMA attended the workplace and reviewed the duties and machinery associated with the Applicant's original role, and assessed alternative roles in line with his medical restrictions. The Applicant and the Union were afforded opportunities to suggest alternative roles and to respond to correspondence where termination was being considered.
Section 170CG(3)(d) - Warnings
[116] Section 170CG(3)(d) only arises where the termination of employment was related to unsatisfactory performance by the Employee. In the current circumstances, the termination of employment was upon grounds other than unsatisfactory performance; therefore, s170CG(3)(d) is not a relevant consideration.
Section 170CG(3)(da) - Size of Undertaking, Establishment or Service
Section 170CG(3)(db) - Absence of Human Resource Management Specialists or expertise in the Undertaking
[117] Section 170CG(3)(da) relates to the degree to which the size of the Employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination. In Nicoletta Pergaminos v Thian Pty Ltd t/a Glenhuntly Terrace84, Lacey SDP stated:
"It seems clear that the intention of paragraph (da) is for the Commission to have regard to the size of the undertaking and to assess whether, in the context of that size, it has capacity to formulate some formal procedures for effecting termination of employment. This could mean also that an undertaking that has no formal termination of employment procedure may be held to have acted unreasonably in a termination of employment case because its administrative and management structure is of such a magnitude that it ought to have formulated some formal termination of employment procedure. This seems to follow from the requirements paragraph (db). I adopt this construction in determining this case."85
[118] In line with this interpretation, my expectation in relation to s. 170CG(3)(da) and s. 170CG(3)(db) is that the Respondent, in accordance with its size, circumstances and its employment of dedicated Human Resource Specialists, is sufficiently sophisticated in its operations to have appropriately formulated termination of employment procedures. I consider that reasonable procedures were implemented in this matter and that whilst Mr Fox was relatively inexperienced in managing these processes, the process afforded the Applicant procedural fairness.
Section 170CG(3)(e) - Other Relevant Matters
[119] Section 170CG(3)(e) of the Act allows the Commission, in determining whether a termination is harsh, unjust or unreasonable, to have regard to any other matters that it considers relevant. It is clear on the Applicant's evidence that he was experiencing ongoing pain, as advised to the Employer upon his return to work.
[120] It is necessary in situations where Employees present with medical conditions restricting their capacity to fulfil their duties, to ensure that they are not returned to an environment that would potentially cause further risk to them, and place the Employer in breach of its legal obligations. In particular, the Coal Mine Workers' Health Scheme provides specific statutory obligations in this regard, which are in addition to any common law obligations owed by the Employer.
The Consequences of Termination Upon the Personal and Economic Situation of the Employee
[121] In Byrne v Australian Airlines Ltd86, the High Court held that a termination of employment may be unreasonable because of its consequences for the personal and economic situations of the Employee. The economic consequences to the Employee of the dismissal was a relevant factor under s170CG(3)(e). A consideration in this matter is the fact that the Respondent had afforded the Applicant 5 months on full pay after his leave entitlements had been exhausted.87
[122] The intention of the Fitness for Duty Standard and Rehabilitation Policy was to allow the Applicant the opportunity to undertake a planned program of rehabilitation. In the current circumstances, where the medical evidence was that rehabilitation would not have reversed the permanent nature of the injury, it was not appropriate for it to be implemented. As stated, it was emphasised that the Respondent had extended paid leave when the sick leave entitlement was discharged. During this period, the Applicant legitimately made a Group Disability Income Claim (toward which he had made contributions to be eligible), for which he received $1300 per fortnight and for which the maximum period of benefit was 2 years.88
Procedural Aspects
[123] The procedural aspects, or manner, of the termination is also a relevant consideration under s170CG(3)(e). The termination was implemented after a reasonable process of medical assessments and further evaluations. The Applicant and the Union were informed of such and the circumstances and steps leading to the consideration of the termination. The Unions and the Applicant were afforded ample opportunity to respond at all stages of the process, and such responses were assessed.
Differential Treatment
[124] Where dismissed Employees are treated differently, this may be a relevant matter under s170CG(3)(e). It was argued that the Applicant was at a comparative disadvantage due to the differential treatment of placing other Employees on the Rehabilitation Program. However, there was no substantive evidence to demonstrate that any other Employee who had a permanent incapacity or who was subject to an assessment that rehabilitation would not have reversed the injury (as was the case with the Applicant), had been placed on the Rehabilitation Program.
Employment Environment
[125] The nature of the employment environment of the business may be a relevant factor under s170CG(3)(e).89 The specific workplace environment and duties are relevant considerations given that it was concluded that the inherent requirements of the position were not able to be met due to the Applicant's physical incapacity and the fact that in this workplace and work environment, there were a limited number of alternative positions available commensurate with the medical restrictions. The nature of the specific workplace environment in question was also a pertinent consideration in assessing the risk to the Applicant.90
Employer's Actions Under Other Legislation
[126] The Employer's actions when compared with its legislative obligations is a relevant consideration under s170CG(3)(e)91. The Respondent discharged its responsibilities under the Coal Act and the Coal Mine Workers Health Scheme. The application of the Rehabilitation Program was not appropriate given the permanent nature of the Applicant's incapacity and the Respondent's duty of care obligations.
The Principle of a "Fair Go All Round" - Section 170CA(2)
[127] In Siao v GIO Australia Ltd92, Larkin C found that the notion of a "fair go all round" was based on the principles of natural justice, and requires fairness to all parties. In the circumstances, I am satisfied in accordance with s.170CA(2) that a "fair go all round" was afforded to the Applicant. The Respondent undertook medical appraisals of the Applicant's condition resulting from his injury, and provided further leave on the exhaustion of his sick leave. No reasonable alternatives to the termination of the Applicant's employment presented given his physical incapacity and the lack of alternative positions. In reaching this conclusion, the Respondent considered the risk to the Applicant and its specific legislative workplace health and safety obligations.
CONCLUSION
[128] In accordance with the aforementioned reasons, I do not find that the termination of employment was harsh, unjust or unreasonable, and therefore dismiss the application.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Mr J. Merrell, of Counsel, appeared for the Applicant
Mr A. See, of Freehills Lawyers, appeared for the Respondent
Place and date of hearing:
Brisbane
31 March- 3 April 2003
8 May 2003
Printed by authority of the Commonwealth Government Printer
<Price code G>
1 Exhibit 1 - Statement of Gary Broad.
2 Exhibit 1 - Statement of Gary Broad, GB30 (Letter of Termination) and GB13 - page 3.
4 Exhibit 19 - Statement of Mr Paul Fox, Attachment S.
5 Note: Reasons explained in Exhibit 19 - Statement of Mr Paul Fox at paragraph 63.
6 Exhibit 19 - Statement of Mr Paul Fox , Attachment U.
7 Exhibit 1 - Statement of Mr Gary Broad, paragraphs 20-21.
8 Exhibit 1 - Statement of Mr Gary Broad, paragraph 23-25.
9 Exhibit 1 - Statement of Mr Gary Broad, paragraph 30.
10 Exhibit 1 - Statement of Mr Gary Broad, paragraph 32.
11 Exhibit 1 - Statement of Mr Gary Broad, paragraph 33.
12 Exhibit 1 - Statement of Mr Gary Broad, paragraph 35.
13 Refer to Schedule 9 - s.46 Coal Regulation.
14 Exhibit 1 - Statement of Mr Gary Broad, GB1.
15 Exhibit 1 - Statement of Mr Gary Broad, GB1.
16 Exhibit 1 - Statement of Mr Gary Broad, GB2.
17 Exhibit 1 - Statement of Mr Gary Broad, GB9.
18 Exhibit 1 - Statement of Mr Gary Broad, GB10.
19 Exhibit 1 - Statement of Mr Gary Broad, GB11.
20 Exhibit 1 - Statement of Mr Gary Broad, GB13.
21 Exhibit 1 - Statement of Mr Gary Broad, GB14.
22 Exhibit 1 - Statement of Mr Gary Broad, GB18.
23 Exhibit 1 - Statement of Mr Gary Broad, GB19.
24 Exhibit 26 - Closing Submissions of the Respondent, paragraphs 12(a)-(c).
25 Exhibit 1 - Statement of Mr Gary Broad, GB21.
26 Exhibit 1 - Statement of Mr Gary Broad, GB20.
27 Exhibit 1 - Statement of Mr Gary Broad, GB29.
28 Exhibit 1 - Statement of Mr Gary Broad, GB30.
30 Transcript - PN2865-PN2939 and PN2940-PN2990.
31 See Transcript PN 1656 - PN 1737 and PN 1759 - PN 1886.
32 Exhibit 25 - Application's Closing Submissions, paragraph 23(d)-24.
34 Coal Regulation, Schedule 9.
35 Coal Regulation, s. 48(2); Exhibit 19 - paragraphs 13-15 (and Attachments); Transcript - PN2761 - 2762 and Exhibit 25 - Applicant's Closing Submissions, paragraphs 52-57.
36 Exhibit 12 - Statement of Dr Schneider.
37 Transcript - PN1247 and PN2402.
38 Exhibit 19 - Statement of Mr Paul Fox, Attachment A.
39 Transcript - PN2159 & PN2564 (referred to in cross-examination of Mr Walters and Mr Fox).
40 Exhibit 17 - Statement of Dr Fenner, Attachment B.
41 Exhibit 25 - Applicant's Closing Submissions, paragraphs 20-21.
42 Exhibit 25 - Applicant's Closing Submissions, paragraphs 45-47.
43 PR903643, McIntyre VP, Cartwright SDP and Harrison C, 30 April 2001.
44 Exhibit 26 - Respondent's Closing Submissions, paragraph 5.
45 PR903643, McIntyre VP, Cartwright SDP and Harrison C, 30 April 2001.
47 Transcript, PN671-672; PN681-682.
50 Exhibit 26 - Respondent's Closing Submissions, paragraph 40.
52 Exhibit 25 - Applicant's Closing Submissions, paragraphs 36; Exhibit 23.
53 Exhibit 25 - Applicant's Closing Submissions, paragraph 37; Exhibit 23.
54 Exhibit 25 - Applicant's Closing Submissions, paragraph 38.
56 Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 (10 May 2002) at paragraph 68.
57 Transcript in confidence, Wednesday 2 April 2002.
58 Coal Regulation, ss. 10 and 42(8).
59 Exhibit 19 - Statement of Mr Paul Fox, Attachment B.
60 Exhibit 19 - Statement of Mr Paul Fox, Attachment B.
62 Exhibit 26 - Respondent's Closing submissions, paragraphs 13(a)-(i).
63 Exhibit 1 - Statement of Mr Gary Broad, GB6.
64 Refer to Transcript, PN671-682.
67 Exhibit 1 - Statement of Mr Gary Broad, GB4.
68 Exhibit 1 - Statement of Mr Gary Broad, GB5.
69 Giudice J, Polites SDP, Gay C, Windsor Smith v Lui and Others, Print Q3462.
70 Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 and Australian Meat Holdings Pty Ltd v McLauchlan [Print Q1625], FB (Ross VP, Polites SDP, Hoffman C).
71 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 and Kerr v Jaroma Pty Ltd t/a Treasury Motor Lodge (1996) 70 IR 469.
72 Shorten and Others v Australian Meat Holdings Pty Ltd, Ross VP approved of statements by Lee J in Nettlefold v Kym Smoker Pty Ltd.
73 Exhibit 17 - Statement of Dr Fenner, paragraphs 19 and 20.
74 Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at paragraphs 68-69.
75 PR903643, McIntrye VP, SDP Cartwright and Harrison C.
76 Note: This Act was the predecessor to the Coal Mining Safety and Health Act 1999. Refer to s. 33(2) AND s. 34 of the Coal Mining Safety and Health Act 1999.
77 Ian Hobbs v Capricorn Coal Management Pty Ltd, PR903643, McIntrye VP, SDP Cartwright and Harrison C, paragraph 31.
78 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, 11 May 2000 Ross VP, Acton SDP and Cribb C.
79 Guttridge v AC & R Pty Ltd [Print P7971], Cargill C.
80 Previsic v Australian Quarantine Inspection Services [Print Q3730], Holmes C.
81 Exhibit 19 - Statement of Mr Paul Fox, Attachment S.
82 Exhibit 19 - Statement of Mr Paul Fox, Attachment T
85 Nicoletta Pergaminos v Thian Pty Ltd t/a Glenhuntly Terrace, PR920123.
87 Exhibit 21 - Respondent's Submissions, paragraph 45
88 Transcript (Applicant's evidence), PN535-546.
89 Gilbert v Taranto's Ice Cream Pty Ltd [Print R2275], Watson SDP.
90 Refer to Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603.
91 Capricorn Coal Management v Connelly [Print R2428], MacBean SDP, Watson SDP, Harrison C.