Note: An appeal pursuant to s.45 (C2004/6919) was lodged against this decision - refer to Full Bench decision dated 4 April 2005 [PR956925] for result of appeal..
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Loren Ermilov
and
Qantas Flight Catering Limited
(U2003/5817)
SENIOR DEPUTY PRESIDENT CARTWRIGHT |
SYDNEY, 18 NOVEMBER 2004 |
Termination of employment.
DECISION
[1] Mr Loren Ermilov (the Applicant) filed an application under s.170CE of the Workplace Relations Act 1996 (the Act) on 25 August 2003 for relief in respect of the termination of his employment. I heard evidence in the matter on 16 and 17 June 2004 and again on 14 July 2004 in Sydney, and received closing submissions in writing between 9 August and 3 September 2004.
[2] The Applicant claims that there was no valid reason for termination of his employment and that it was harsh, unjust or unreasonable. He seeks reinstatement and an amount in respect of remuneration lost. Qantas Flight Catering Limited (the Respondent or QFCL) relies on reasons related to the Applicant's capacity to perform his role and denies any unfairness in termination of his employment.
CHRONOLOGY AND FACTS
[3] Having considered all of the evidence, I set out below a summary of the relevant facts and chronology. It incorporates findings of fact to the extent required.
[4] The Applicant commenced his employment with the Respondent on 10 November 1993. He was employed as an Airline Services Operator (ASO) Level 2 and remained in that position until termination of his employment.1 He worked initially in the Wash Up Section, receiving and washing reusable utensils.2 In 2000 to 2001 he worked in the Equipment Section, preparing catering equipment to be used on flights. The Applicant gave evidence that he performed other functions in the Transport Section and Food Production Section at various times.3
[5] The Applicant injured his back at work on 4 February 1998 when moving a heavy bin of paper.4 He was away from work for one month, returning on 2 March 1998 to his pre-injury duties. However, he was again declared unfit for work from 23 March 1998 to 9 June 1998.5 When he did return to work, it was to "suitable duties" for 4 hours per day, 4 days per week, with restrictions of no repetitive lifting, pushing, bending, pulling and no heavy lifting (above 5kg).6 He returned to pre-injury duties on 2 November 1998.7
The second injury
[6] The Applicant injured his back a second time on 7 January 2000 when lifting a bin full of bags of ice.8 He was unfit for work until 14 March 2000 and was placed on "suitable duties" upon his return. Almost six months later, on 12 September 2000, the Respondent's workers compensation insurer, Allianz Australia Workers' Compensation NSW Ltd (Allianz), denied liability for the second injury.9 The Respondent required him to return to pre-injury duties, withdrawing "suitable duties". He took sick leave from 18 September to 27 October 200010 and returned to work to resume pre-injury duties on 30 October 2000. 11
[7] On 20 March 2001, the Respondent received a Statement of Claim from the Applicant in the District Court of NSW, seeking compensation and past and future economic loss for his second injury. Various doctors provided reports about the Applicant's condition, including Dr Lewington, Dr Scougall, Dr Vote, Dr Kuzmanovski, Dr Olsen, Dr Scarf and Dr O'Neill.12
[8] In December 2001 the District Court of NSW awarded the Applicant compensation and damages, finding that Mr Ermilov had a 26% permanent impairment to his back and lower leg and that the second injury was an exacerbation of the first injury in 1998. The Court ordered just over $190,000 compensation.13 Throughout this time, and after, the Applicant continued in his employment with QFCL on his pre-injury duties.14
The third injury
[9] On 30 March 200415, the Applicant again injured his back, whilst performing cart-checking duties, and went home. After consulting with the Respondent's insurer, Allianz, Ms Vicki Stephens (QFCL Workers' Compensation Co-ordinator)16 telephoned the Applicant on 3 April 2003 to ask him to see Dr Ng on 8 April 2003. Dr Ng is a Consultant Physician in Occupational and Musculoskeletal Medicine and is an approved Injury Management Consultant with WorkCover. The Respondent had previously referred cases to him, as a result of which he was "very familiar with the operations at QFCL", had visited the QFCL premises several times and had performed a number of "walk throughs" assessing the performance of tasks for the rehabilitation of injured employees.17
[10] The following day, on 4 April 2003, the Applicant's GP and treating doctor, Dr Kuzmanovski, certified the Applicant unfit for any work from 31 March 2003 to 11 April 2003.18 Dr Kuzmanovski has treated the Applicant as his general practitioner for roughly 7 to 8 years.19 He gave evidence that he has seven patients from the same work area at QFCL and said he is acquainted with the job functions, but has never been to the QFCL premises and has not observed work being performed at QFCL or observed the work the Applicant was required to perform.20
[11] The Applicant saw Dr Ng on 8 April 2003 where he told Dr Ng that he was feeling "more than 50% better than [he] had felt on 1 April 2003".21 The Applicant informed Dr Ng of "his past medical and social history, including the details of his previous three injuries to his low back...".22 Dr Ng examined him, reviewed the CT scan and x-ray and reports provided by the Applicant, dated 7 February 2000 and 4 April 2003, from the assessing radiologist Dr Lovett.23 On the same day, Dr Ng contacted Dr Kuzmanovski and discussed the "working diagnosis" of Applicant's low back condition. Dr Ng expressed a concern to Dr Kuzmanovski about the history and progress of the Applicant's low back condition, given that, in his view, the symptoms had been present since 1998. They agreed that the Applicant would not be medically fit for "suitable duties" for the next two weeks and that he would need to have an MRI scan and neurosurgical assessment.24 According to Dr Ng, they also agreed that redeployment to another position which did not require repetitive heavy manual handling tasks was the preferred option when the Applicant did return to work.25 Dr Ng's report records that he discussed with Dr Kuzmanovski the Applicant's long-term prognosis in occupational rehabilitation, though Dr Kuzmanovski disputes this26. Dr Ng recalls having discussed the likelihood of an early return to work on "suitable duties" but did not specify what those specific duties would be.27
[12] Dr Ng prepared a detailed 6 page report, addressed to Ms Stephens, providing a medical opinion and recommendations regarding Mr Ermilov's physical capabilities. He concluded that the Applicant "had developed chronic mechanical low back pain from degenerative changes in his lumbar discs and secondary spinal canal stenosis since 1998." Further, he concluded that the third injury was a further aggravation of his condition and although it could be stable at that time, was subject to further aggravation or reinjury if the Applicant worked in any repetitive manual handling.28 Dr Ng's evidence was that, in his opinion, if the Applicant returned to his pre injury duties and due to the physical requirements of the work in the Wash Department, there was a high risk that he would not be able to sustain this role and would further aggravate his chronic low back condition.29
[13] Dr Kuzmanovski issued three further medical certificates that the Applicant was unfit for work: from 11 April to 29 April 2003, 29 April to 2 May 2003 and 2 May to 8 May 2003.
[14] Allianz wrote to the Applicant on 1 May 2003, denying workers compensation liability in respect of his third injury on the basis that it was an aggravation of the previous injury of 7 January 2000. That view was based upon the opinion of Dr Ng. The letter continued: "You received a Common Law settlement on 19th December, 2001 which compensates for past and future entitlements, and therefore you are not entitled to receive any further benefits in this regard."30
[15] On 5 May 2003, on referral from Dr Kuzmanovski, the Applicant saw an orthopaedic specialist, Dr Loefler, whom he had previously seen in February 2000.31 Dr Loefler's short report to Dr Kuzmanovski states: "I reviewed a CT of the lumbar spine. The films demonstrate a right sided disc lesion at L4/5 with some resulting canal stenosis. The films are similar to the MRI taken three years ago." In his view another MRI was not justified. He concluded that he believed the Applicant would "be able to return to modified duties".32
[16] On 8 May 2003, the Applicant saw Dr Kuzmanovski who was soon to depart overseas. The doctor issued two medical certificates, one stating that the Applicant was fit for "suitable duties" for 4 hours per day, 5 days a week from 9 May to 13 June 2003 and the other certifying fitness for "suitable duties" 8 hours per day, 5 days a week from 19 May to 13 June 2003. Both had the same restrictions: lifting up to 7kg; standing for up to one hour; avoid repetitive bending. Dr Kuzmanovski left it to the Applicant to judge whether he was able to increase his hours of work during the period covered by the certificates. Later that day, the Applicant met with Ms Stephens and presented the first certificate. Upon being told that "he would only be paid for the hours actually worked", he presented the second certificate.33 Although it was disputed between the Applicant and Ms Stephens, it would appear that Ms Stephens told the Applicant to report for duty the following day and suitable duties would be arranged.34 Later that afternoon, Ms Stephens telephoned the Applicant and left a message with his son that the Applicant was not to report for work the next day. The next morning the Applicant called Ms Stephens and was told that, considering the restrictions that were placed on him, QFCL could not provide "suitable duties".
[17] On 14 May 2003, Ms Stephens and Mr Matthew Sharratt (QFCL Pre-Production Manager) met with the Applicant to discuss his medical status and their concerns over his ability to perform his pre-injury duties. They explained that there may not be any "suitable duties" available for him. They referred to the medical evidence before them and explained that they intended to review all medical material. The Applicant was asked if he wished to provide any further medical reports for the Respondent to consider.35 Ms Stephens and Mr Sharratt, following the meeting, reviewed all of the medical reports in their possession. They considered reports from the following people:
They had no reports from Drs Kuzmanovski or Loefler.36
[18] On 16 May 2003, the Applicant returned to Dr Loefler who certified the Applicant fit to return to pre injury duties, with no restriction.37 The Applicant gave this to Ms Stephens on 19 May 2003. She was concerned about the conflicting instructions between Dr Kuzmanovski and Dr Loefler and contacted Dr Ng to clarify the detail of his conversation with Dr Kuzmanovski.38 He provided a supplementary report. Later that same day, Mr Sharratt wrote to the Applicant, advising him that QFCL did not recognise Dr Loefler's certificate as it conflicted with two other certificates issued by Dr Kuzmanovski. Accordingly, the Respondent accepted that the Applicant was fit for "suitable duties" (as certified by Dr Kuzmanovski), but "is currently unable to provide you with suitable duties".39 The letter says that the Respondent "is concerned about your ability to perform and sustain your pre-injury duties and is currently reviewing all the medical reports" and would meet with him "to discuss this information and your employment situation".40
[19] This meeting took place on 20 May 2003. Mr Sharratt and Ms Stephens met with the Applicant and told him that QFCL was considering terminating his employment.41 This is confirmed in a 5 page letter which Mr Sharratt gave the Applicant at the end of the meeting. It says:
"... it appears that you are unfit to resume your normal duties and will be so unfit for the foreseeable future. Furthermore, it appears that you will be unable to sustain your normal duties without re-injuring yourself as evidenced by your most recent episode. This is further evidenced by your award of a 26% permanent loss of use of your whole body for which you have received financial compensation.
QFCL is unable to offer you suitable duties or permanently modified duties."42
The Applicant was given until 29 May 2003 to provide a written response, which was then extended to 16 June 2003 because Dr Kuzmanovski was overseas.
[20] On 11 June 2003, the Applicant gave Ms Stephens a medical certificate dated 10 June 2003 from Dr Kuzmanovski, certifying the Applicant's fitness for pre injury duties. The Applicant stated that he intended returning to work on 13 June 2003. Ms Stephens conferred with Mr Sharratt who wrote the next day advising the Applicant not to return to work on 13 June 2003 - "...you are not authorised to return to work until such time as QFCL advises" - and requesting a further meeting with him on 16 June to discuss "your employment situation"43. Ms Stephens' stated the reason for this response as "due to the conflicting certificates and QFCL's ongoing concern about his ability to perform and sustain pre-injury duties"44. This was reiterated at the meeting on 16 June. Mr Sharratt considered a 5 page written response from the Applicant45 and told him that "we would like to get WorkFocus Australia involved in the process in an attempt to resolve the conflict in the medical evidence and the medical certificates of his doctors".46
[21] The Applicant met with Ms Lucinda Martin (Occupational Therapist with WorkFocus Australia) on 26 June 2003, to be assessed in a number of duties required of an ASO Level 2 employee. Ms Martin was required to assess Mr Ermilov against his pre injury job demands of the Wash Department, specifically in the areas of the Dock, Lines (including Runners), Cart Washer, and Autoclave.47 She reviewed the medical reports available to the Respondent. In her view, there was evidence that the Applicant had a "long term lower back condition with disc pathology and underlying degenerative changes."48 She attempted to telephone Dr Loefler and Dr Kuzmanovski on 1 and 2 July 2003 to discuss the Applicant's prognosis. The doctors were not available at the time Ms Martin called and did not return her calls.49 Ms Martin said that had she heard from Dr Kuzmanovski she would have noted his comments, but her "recommendations about the physical demands of the job not matching the medical information would have remained the same."50
[22] Ms Martin concluded from her assessment of the Applicant and the duties of an ASO Level 2 employee that his "recommended long term physical work restrictions did not match the physical requirements of his pre-injury duties as a ASO Level 2 in Pre-Production. Further, I regarded that Mr Ermilov would be at risk of further aggravation/injury if he returned to the duties of a Level 2 ASO in the Wash Department."51 She also recommended that the Respondent contact Dr Kuzmanovski and Dr Loefler to comment on Mr Ermilov's risk of further injury if he resumed his pre injury duties. On 7 July 2003, Ms Stephens requested Ms Martin to perform a broader "job match assessment" to include comparable roles. At the instruction of QFCL, Ms Martin considered positions in the Equipment Preparation Areas, the Level 2 Stores (Material Handler) and the Level 2 Catering Services Assistant.52 Ms Martin concluded that the Applicant "may not be suited to the full range of duties" within each of these areas.53 Ms Martin's evidence was that QFCL made it clear that a permanent placement in a job requires performance of the full components of that job.54
[23] Ms Stephens wrote to Dr Kuzmanovski and Dr Loefler on 14 July 2003, attaching the reports of Dr Ng and Ms Martin and seeking their response.
[24] On 31 July 2003, Mr Ermilov wrote to the Respondent submitting that he was fit to return to pre injury duties and sought to return on 4 August 2003. He enclosed a 3 page letter addressed to Ms Stephens from Dr Kuzmanovski, dated 29 July 2003, and a letter from Dr Loefler to Dr Kuzmanovski, dated 14 July 2003. Dr Loefler's letter was brief and restated his view that Mr Ermilov "is fit to return to his pre-injury duties".55 Dr Kuzmanovski also restated his earlier opinion that the Applicant was fit to return to pre injury duties and addressed in detail his conversation with Dr Ng. His letter concludes:
"No, I don't wish to amend my most recent certification and no, you didn't provide any new information. All the information you have supplied is old and irrelevant, incomplete or biased.
I stay by my opinion that Loren is fit to return to his preinjury duties as a a [sic] full time Level 2 ASO in the Wash Department."56
[25] Mr Sharratt's evidence was that these responses
"... did not address our concerns about whether or not Mr Ermilov was fully fit to return to and sustain his pre-injury duties. Dr Kuzmanovski simply attempted to discredit Ms Martin's report on the basis that she was relying on `out of date' medical evidence. However, he did not discuss and provide comments regarding the diagnosis of Mr Ermilov's back, particularly considering the nature of Mr Ermilov's physical work.
... Dr Loefler's letter did not respond to the issues raised in the letter from Ms Stephens dated 14 July 2003 and failed to provide any new information that demonstrated that Mr Ermilov was capable of performing and sustaining his pre injury duties."57
[26] On 4 August 2003, the Applicant attended the Respondent's premises, but was not permitted access to the workplace. On 6 August 2003, the Respondent terminated the Applicant's employment by letter, stating as the reason:
"QFCL is of the view based on medical evidence that you are unable to perform your contracted position as an Airline Services Operator (Level 2). An independent assessment has been made to assess any possible alternative roles you could fulfil bearing in mind the medical restrictions you have including a 26% permanent impairment of your lower back function. Unfortunately there are no suitable alternative positions available and QFCL is unable to create a new role for you." 58
[27] Since the termination of his employment, the Applicant has obtained work with Ready Workforce (between 24 November 2003 and 4 January 2004), working for Caterair, which provides services to Qantas domestic flights and foreign airlines. His evidence was that he told his new employer that he was made redundant by QFCL and that he did not disclose his lower back injuries.59 The Applicant gained further employment with Sky Blue Collar, which provides labour for Gate Gourmet. Again, he stated that he was made redundant by QFCL and did not disclose his back injury.60 He worked for Sky Blue Collar from 1 March 2004 to 16 May 2004. From 17 May 2004, the Applicant commenced work for Recruitment MG Pty Ltd, working for Gate Gourmet in Wash Up and the Matrix Bond Store. "As before I did not disclose my back injury and I said I was made redundant by the Respondent."61 In these roles he has done similar work as at QFCL.
CONSIDERATION
[28] I have considered all of the evidence and submissions before me in this case, including the authorities to which I was referred. In determining whether the termination of the Applicant's employment was harsh, unjust or unreasonable, I must have regard to the factors in s.170CG(3) of the Act and make findings on each of them.
[29] In my view there was a valid reason for the termination related to the capacity of the Applicant (s.170CG(3)(a)). That reason was that the Applicant was assessed unable to perform the duties of his contracted position as an ASO Level 2 and the Respondent was not able to create a new role for him.
[30] Under the NSW Workplace Injury Management and Workers Compensation Act 1998, an employer liable to pay compensation to an injured worker is obliged to provide "suitable employment", unless it "is not reasonably practicable."62 "Suitable employment" is defined as "work for which the worker is suited, having regard to..." a number of factors, including (among others) the nature of the worker's incapacity and pre-injury employment, and the details in the medical certificate supplied by the worker. When Allianz denied workers compensation liability in respect of the Applicant's third injury (which the Applicant did not contest), the Respondent was no longer obliged to provide the Applicant "suitable duties". It applied a policy that ASO Level 2 employees are required to perform all the duties of the role and that the Applicant was to be capable to rotate through the various tasks within all sections of the Wash Department. I am satisfied that this was a reasonable policy in deciding how to run its business and no argument has been put that the Respondent was precluded from making such a decision. Rather, the Respondent was faced with an apparent conflict in the medical opinion about whether the Applicant could perform the duties of the role.
[31] As a result of the inconsistency between the medical information and responses of the Applicant's doctors, Mr Sharratt preferred the reports of Dr Ng and Ms Martin. He gave evidence that, having the information of the Applicant's doctors, Allianz, WorkFocus and Dr Ng, he had to "consider all of the information that was put in front of me and make a considered opinion based on all the information."63 When asked about Dr Kuzmanovski's response, Mr Sharratt said that Dr Kuzmanovski dismissed the WorkFocus report and "failed to comment on the nature of the work that was required" which was the focus of QFCL's concerns.64 Given the medical and occupational therapist's reports and the fact that the Applicant had sustained a third injury to his lower back whilst performing work in the ASO Level 2 position in the context of the determination from the District Court of NSW of a 26% impairment to the Applicant's lower back, Mr Sharratt determined with Ms Stephens that the Applicant's employment was to be terminated.65
[32] The Applicant argued that the Respondent should have preferred the later opinions of the Applicant's treating doctors, Dr Kuzmanovski and Dr Loefler. The Applicant also argued that the Respondent should have found suitable duties for him or that he should have been given a trial to demonstrate his capacity to work. In my view, it was reasonable for the Respondent to have concerns about the Applicant's capacity to do the full duties of an ASO Level 2 in the Wash Department and to resolve the apparent conflict in medical opinion in the manner it did. Dr Loefler's assessment was contained in a single medical certificate and the brief report made available on 31 July, while Dr Kuzmanovski's response on 29 July 2003 was, in my view, difficult to prefer over Dr Ng's reports. It was argumentative and did not address the content of the WorkFocus report to which QFCL sought a response or comment on the nature of the work. In the light of all the reports, the Respondent did not believe that a trial was appropriate to determine whether the Applicant was physically able to perform the work.66 On the basis of Ms Martin's reports, it determined it had no other role which matched the Applicant's capacity. In the circumstances of this case, it cannot be said that the reason for termination of the Applicant's employment was capricious, fanciful, spiteful or prejudicial. In my view, it was sound, defensible or well founded.67 That view is not changed with the benefit of the additional evidence available to the Commission from the medical practitioners called in this case.68 I find that there was a valid reason for the termination related to the capacity of the Applicant.
[33] On the evidence, the Applicant was notified of this reason by the Respondent (s.170CG(3)(b)).
[34] The Applicant was notified on a number of occasions that the Respondent was reviewing his employment status because of his medical fitness and ability to perform his role. On 15 June 2003, the Applicant sent a detailed response to the Respondent in relation to his condition. He wrote again on 31 July 2003. I am satisfied that the Applicant was given an opportunity to respond to the reason related to his capacity and did so. (S.170CG(3)(c)).
[35] The Respondent's decision to terminate the Applicant's employment did not relate to unsatisfactory performance. Accordingly, s.170CG(3)(d) has no work to do in this case.
[36] The Respondent submitted consideration of s.170CG(3)(da) and s.170CG(3)(db) are not relevant to this matter. The Applicant submitted that no issues arise in this regard.69 I agree with the Applicant. These matters do not influence my determination one way or another.
[37] In considering other matters under s.170CG(3)(e), I have considered the Applicant's length of service of almost 10 years and his criticisms of the Respondent's process and motives in reviewing his capacity. In my view, the Respondent was thorough in its review over the three month period May to August of the Applicant's capacity, a period for which he was paid. I have considered the Applicant's evidence on the ASO Level 2 tasks that he is able to perform and the Respondent's consideration of alternative positions for him. The Applicant also argued that there was at least one other employee who was on permanently modified duties. However, this was not established on the evidence. The Respondent's evidence was that this was not so, that it was obliged to provide suitable duties to employees subject to workers compensation and that it otherwise was not able to create specific roles matching individual capacity.
Conclusion
[38] Having considered all of the evidence and submissions before me, and having considered the Act's intent to ensure a "fair go all round", I have determined that the termination of the Applicant's employment was not harsh, unjust or unreasonable. Accordingly, the Applicant's application is dismissed.
ORDER
1. The application under s.170CE(1) of the Act is dismissed.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
C Tanner, solicitor, for the Applicant.
R Bernasconi, solicitor, for the Respondent.
Hearing details:
2004
Sydney
16 and 17 June
14 July
Printed by authority of the Commonwealth Government Printer
<Price code {C}>
1 Para 3 and 4, Statement of Loren Ermilov (Exhibit A1).
5 Para 18 and 19, Exhibit A1 and Para 7, Statement of Evidence of Vicki Lee Stephens (Exhibit R7).
8 Para 25 and 26, Exhibit A1 and Para 7(d) and (e), Exhibit R7.
15 Para 65, Exhibit A1 states 31 October 2003, but para 17, Exhibit R7 and Attachment 7 records the date of the third injury as 30 October 2003.
16 Para 17 and 18, Exhibit R7.
17 Para 1, 3, 6 and 7, Statement of Steven Ka Tat Ng, (Exhibit R5).
25 Exhibit R5, para 21. This was disputed by Dr Kuzmanovski (PN969).
29 Para 26, Exhibit R5, PN1704.
30 Attachment RR, Exhibit A1 and PN725.
31 Exhibit A1, Attachments J and SS.
32 Attachment SS, Exhibit A1 and PN1062.
35 Para 40, Exhibit R7 and PN811, PN824.
39 Para 94 and 95, Attachment XX, Exhibit A1.
45 Attachment FFF, Exhibit A1.
47 Para 14 and 24, Statement of Lucinda Martin (Exhibit R3).
52 Paras 31 to 35, Exhibit R3.
54 PN1476, PN 1553 to PN1555, PN1589.
55 Attachment NNN, Exhibit A1.
56 Attachment UUU, Exhibit A1.
58 Attachment VVV, Exhibit A1.
60 Para 164, Exhibit A1. PN343 to 350.
64 PN2459 to PN 2463. PN 2512 to 2514.
67 Selvachandran v Peteron Plastics Pty Ltd (1995) IR 371 at 373.
68 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 14.
69 Respondent's Written Submissions filed 27 August 2004 and Applicant's Written Argument in Response filed 3 September 2004.