Industrial Relations Commission New South Wales Medium Neutral Citation: Moussa v City of Sydney Council [2012] NSWIRComm 1021 Hearing dates: 20/08/12 Decision date: 10 September 2012 Before: Ritchie C Decision: Catchwords: application under s 84 of IR Act-long term employee terminated due to significant risk of further injury-alternative roles considered but not found- applicant had significant history of workers compensation claims and sick leave-genuine concern held by respondent of further injury-at time of termination no workers compensation claim on foot- post termination - subsequent medical certificates continue to not have the applicant fit to return to normal duties. Commission found that respondent had no alternative but to terminate. Found application neither harsh, unjust or unreasonable. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees Union, Newcastle and Northern Branch on behalf of Riley [2012]NSWIRComm74 Category: Principal judgment Parties: Mr E Moussa (the applicant) City of Sydney Council (the respondent) Representation: Ms S Price for the respondent from Bartier Perry File Number(s): IRC 372 of 2012 DECISION Background. 1Mr Edward Moussa (the applicant) filed a claim for unfair dismissal under section 84 of the Industrial Relations Act, 1996 on 28 February, 2012. The respondent being the City of Sydney. The matter came on before Bishop C for conciliation on 23 March 2012, 24 April 2012 and 21 June 2012 but without agreement being reached. A timetable for the filing and serving of evidentiary material was provided to the parties. 2The matter was listed for hearing on 20 August 2012 with the decision being reserved at the end of final submissions. Applicant's Case. 3In his originating application the applicant stated that he commenced employment on 25 October 1984. His last working day was 3 August 2011 and his date of termination was 8 February 2012. In his application under the sub heading of RELIEF SOUGHT he has ticked only Reinstatement to your former position. He has then stated Driver Labourer my normal Job CW-4. 4The applicant filed a statement and was subject to cross examination. In this statement the applicant gave a brief history of his employment. Attached to his application were various annexures. He stated that he had surgery on 23 November 2011 which the respondent was aware of and which he stated that he was fully recovered from. He also stated that he was involved in two meetings with representatives from the respondent being held on 9 and 31 January 2012. Meeting notes of both of those meetings were attached to the statements of the respondents. The applicant believed that the notes were accurate. He also stated that in March 2003 he advised the respondent that he had sleep aponia . He said that he had no other problems until March 2008 when he had on going stomach and back pain and ongoing physio for upper and lower back which occurred about four times until 2011. 5 In early August 2011 he went to see Dr Ma which had been organised through the respondent. He advised the doctor that he had a hernia and back pain from using a jack hammer plus arthritis in the left foot. He was stood down from work with pay on 3 August 2011. 6He said that he received a letter of termination from Ms Kerry Pryke dated 8 February 2012. The letter set out what had occurred since him being stood down in early August 2011. 7It was the applicant's submission that he wanted to go back and work for the respondent in a job that he could do. Respondent's Case. 8The respondent had three witnesses. 9Ms Kerry Pryke stated that she is the Manager Human Resources Operations. She has held this position since 4 January 2010. She stated that the applicant had been brought to her attention in early August 2011 because of the number of days sick leave for various injuries. The applicant was sent to see Dr Ma ( from IMMEX) on 4 August 2011 who provided a report. The report stated the medical history of the applicant and the requirements he prescribed to counter his back pain. The applicant stated that he had injured the day before using a jackhammer. He stated that the applicant was fit for his normal duties. He noted that the applicant was having reflux symptoms and is pending investigation and management . 10 Ms Pryke stated that she had concerns with the jackhammer injury so the applicant was asked not to attend work but instead was placed on paid leave. She sought an assessment by Workfocus Australia Pty Ltd to document and evaluate the physical demands of the applicant's pre-injury duties and provide recommendations to assist his safe and durable return to work. 11On 7 November 2011 the applicant was observed performing his job. A worksite assessment report was provided to the respondent. Under the sub heading of Summary it stated in part that: "it can be concluded that Mr Moussa is at risk of further injury and/or exacerbation of his current injuries should he continue these duties. In view of the nature of Mr Moussa's Pre-Injury Duties, it can be assumed that all tasks present with some degree of risk. Based on Mr Moussa's reported symptoms, and observations of his current functional capacity Mr Moussa would be at increased risk due to his decreased squatting ability, avoidance using his core/stomach when lifting , fear of re-injury and poor observed lifting technique. Mr Moussa additionally advised WorkFocus Australia that he typically avoids tasks that require him to bend or twist due to discomfort and decreased functional capacity. In observation of Mr Moussa's duties as a Construction Gang member he would be required to twist and bend of a frequent basis to complete a majority of his labouring duties." 12A Physical Work Performance Evaluation Summary was carried out on 14 November 2011. Included in the report was a comment that the applicant was "willing to continue increasing weight of the box, which would indicate a tendency to over-exert in an unsafe manner." The report quoted that the applicant over extended his physical capacity on three out of the 21 tasks. The report stated that the applicant did not job match in the following areas: Floor to waist lift: Job requirement of 20 kilograms, Mr Moussa demonstrated safe lifting to 16 kilograms. Waist to eye level: Job requirement of 20 kilograms, Mr Moussa demonstrated safe lifting capacity of nine kilograms and advised he was unable to continue. One handed carry: Job requirement of 15 kilograms, Mr Moussa demonstrated safe lifting of 13 kilograms. It stated : " In summary , Mr Moussa demonstrated limited performance in performing lifting and carry tasks at the level required to safely perform his pre-injury duties." 13On 19 December 2011 Ms Pryke wrote to the applicant outlining concerns with him returning to his appointed role because of the risk of injury or further injury posed by that work. It stated that the Council was prepared to investigate the possibility of providing alternative meaningful and productive employment but at that stage no alternative role had been considered. 14A meeting was held on 9 January 2012 with the applicant and Ms Dametto an employee of the respondent who reported to Ms Pryke. 15A second meeting was held on 31 January 2012. Present were the applicant and his union representative Mr Carter, Ms Pryke, Ms Dametto and Mr Wren. A copy of the notes of that meeting were attached to the statement. She stated that at that meeting Mr Carter raised a number of things that the applicant could do. Other things were later added to the list. 16Ms Pryke then directed Ms Dametto to consider the suggestions, compare them to the Workfocus Assessments as well as what the applicant had said at the two January meetings. 17Ms Dametto came back to Ms Pryke and advised that the respondent should consider terminating the applicant as there were no suitable positions available for the applicant as it was not safe for him to return to his pre-injury duties and there were no suitable redeployment options available. 18She stated that no further medical evidence was supplied by the applicant to demonstrate that he was fit for his pre-injury duties or that anything had changed since the Workfocus Assessment in November 2011 or the Physical Work Performance Evaluation. 19Ms Pryke stated that she wrote to the Chief Executive Officer who adopted the recommendation that had been made by her that he be terminated. 20She then wrote to the applicant on 8 February 2012 stating that the respondent was unwilling to return him to his appointed role because of the significant risk of further injury and it had reviewed alternative options for him but there were no other roles for him to perform. The correspondence stated that he was terminated giving him five weeks pay in lieu of notice.. 21At the time of his termination the applicant did not have any current workers compensation claims. 22Post his termination the respondent received a WorkCover NSW Medical Certificate dated 12 April 2012. In this certificate Dr. Ly gives a brief history of the applicant's work related injuries and states in part: Currently, Mr Moussa is still having significant posterior neck-bilateral posterior shoulder pain, and severe lower back pain. The certificate states that he is fit for suitable duties from 13 April 2012 to 13 May 2012. Lifting up to 8 kgs. Other: 10 min break each hour . Avoid frequently repetitive bending of lower back. 23Ms Pryke noted that a similar certificate dated 13 June 2012 stating the applicant is fit for suitable duties from 14 June 2012 to 14 July 2012 was attached to the applicant's statement. The same restrictions were expressed as the certificate dated 12 April 2012. 24Ms Sonia Dametto stated that she is a HR Business Advisor for the respondent and reports to Ms Pryke. She stated that on 9 January 2012 she attended a meeting with the applicant , Mr George Angelis, Mr Andrew Christie and Ms Paulette Sutherland. A copy of her notes of that meeting were attached to her statement. 25She said that during the meeting she asked the applicant if he was fit to do his job. She said that he replied " of course not." She then asked him what duties did he feel he could do and he replied" I couldn't really lift anything, I could possibly shovel but it would not be great for my guts." She said he also said that he couldn't work in air conditioning or heating as it is not good for his health. This included an air conditioned car. He stated that he had no computer experience and although he can drive a car he can not do it all day as he has sleep problems which affect his concentration. He also said that he probably can't do sweeping as that would not be good for his guts. She said that the applicant conceded that whilst his doctor said he was fit for work he knew that he wasn't . 26On 31 January 2012 she attended a second meeting with the applicant, his union representative Jim Carter, Alan Wren and Kerrie Pryke. She again took notes and attached same to her statement. The main purpose of the meeting was to discuss other duties that the applicant could do. She said that during the meeting she asked the applicant what labouring duties he believed he could do and whether they this would exacerbate his condition. The applicant replied "No." He did suggest a number of roles which differed markedly from what he said he could do at the earlier meeting. A couple of days later Mr Carter suggested further roles for the applicant. 27She stated that she was then asked by Ms Pryke to look at the roles being suggested and report back to her. She came to the conclusion that there were no suitable jobs based on : What the applicant had said during the meeting on 9 January 2012 The "Worksite Assessment Report" and " Physical Work Performance Evaluation Summary" The applicant's medical restrictions and his lack of licensing or skills in the relevant areas The proposed duties and responsibilities by the applicant and Mr Carter and the current list of vacant positions. She then prepared a memo summarising her recommendation under Ms Pryke's name and provided this to the Chief Executive Officer. 28Mr Andrew Christie stated that he is employed by the respondent in the position of Construction Services Manager which he has held for four years. In this position he stated that he is responsible for looking after contract coordinators and construction gang members employed by the respondent. In his statement Mr Christie outlined the work that these construction gangs carry out with the main purpose being to ensure the maintenance and construction of streets and footways within the respondent's area. Attached to his statement was a position description of the applicant's position of Council worker grade IV. This work is very physical and involves bending, lifting, and carrying out physical activity throughout the working week. All workers need to be able to operate the tools and machinery required to conduct civil works including jackhammers, vibrating plates, ride on machinery such as excavators, shovels, asphalt rakes and power tools. 29He stated that in May 2009 the applicant was counselled for excessive sick leave and between June 2010 and June 2011 the applicant had 27 days of sick leave. On 27 July 2011he had a further absence of two days which triggered the need to again speak to the applicant. 30Prior to attending a meeting on 9 January 2012 he was given a copy of the Worksite Assessment Report and the Physical Work Performance Evaluation. 31 He felt that the applicant would not be able to safely perform the work of a Grade IV Construction Gang worker. He stated that he had read the notes made by Ms Dammetto of that meeting and he believes they were an accurate assessment of what was said at that meeting. 32He said that Mr Angelis asked the applicant what duties he was capable of doing and the applicant replied: " I do not want to come back to work and not do much. If I go back to my job, my guts will just about fall apart." He was then asked what he felt he could do and replied: " I can't really lift anything and could shovel but it wouldn't be great for my guts." and " I can't work at the depot even though I'd really like to." 33He said that the applicant understood that the respondent couldn't continue to have someone off from work with no indication of when that person would be able to work, if at all. 34He said that post the meeting he spoke with Mr Angelis summarising what information they had and determined that there were not any suitable jobs at the depot. This they provided to Ms Dammetto. Consideration and Decision. 35 As expressed earlier in this Decision this application comes before this Commission by way of section 84 of the Industrial Relations Act, 1996. The applicant claiming that he was unfairly dismissed. At the time of his application the applicant had no outstanding workers compensation claims against the respondent. By this application the applicant seeks to return to his previous position of Council Worker Grade IV. 36The position description of this role states that such an employee must drive and operate vehicles and machinery and work efficiently within a small team. Under the heading of Essential Criteria it states in part that : Be physically able to carry out labouring work. 37A copy of the applicant's leave record from June 1992 to July 2011 shows that the applicant has had an extensive sick leave absences. The applicant was absent for 26.4 days from January 2011 to July 2011. I find it understandable that the respondent needed to counsel the applicant during his employment due to his sick leave absences and to carry out through WorkFocus Australia a Worksite Assessment ( October and November 2011) and a Physical Work Performance Evaluation ( November 2011). 38The Worksite Assessment Report under the sub heading of Summary states : Following a thorough review of the physical demands of Mr Moussa's Pre-Injury Duties as a Construction Gang member and observation of Mr Moussa complete a component of these duties, it can be concluded that Mr Moussa is at risk of further injury and /or exacerbation of his current injuries should he continue these duties. In view of the nature of Mr Moussa's Pre-Injury Duties, it can be assumed that all tasks present with some degree of risk. Based on Mr Moussa's reported symptoms, and observation of his current functional capacity Mr Moussa would be at increased risk due to his decreased squatting ability, avoidance using his core/stomach muscles when lifting , fear of re-injury and poor observed lifting technique. Mr Moussa additionally advised WorkFocus Australia that he typically avoids tasks that require him to bend or twist due to discomfort and decreased functional capacity. In observation of mr Moussa's duties as a Construction Gang Member he would be required to twist and bend of a frequent basis to complete a majority of his labouring duties. 39The Physical Work Performance Evaluation Summary under the sub heading of Job Match stated in part that Mr Moussa did not job match in the following areas : Floor to waist lift : Waist to eye level and One handed carry. 40Correspondence from the respondent to the applicant dated 19 December 2011 outlined the concerns the respondent had with respect to the ability of the applicant to carry out his job. They stated: "Based on this assessment and other medical evidence gathered by the City in relation to your prior injuries, we consider there are significant limitations in your ability to perform in your appointed role, particularly in relation to activities requiring lifting and carrying. and " The City is willing to investigate the possibility of providing alternative meaningful and productive employment to you by way of redeployment into a suitable role having regard to the ongoing effects of your injury(ies) and consequent medical constraints, employment history and background, and your skills..." " In summary, the City considers the risk of further injury posed by returning you to your appointed role is unacceptable and the City is willing to consider your redeployment into an alternative suitable role. If there are no such roles, the City may then consider employment determination." 41Post that letter a meeting was held on 9 January 2012. The notes taken at that meeting, which the applicant agreed in evidence were accurate, in my view clearly expressed the agreed situation that the applicant was not fit to do his job and that because of his physical restrictions there was very limited scope for him to do any physical work. 42 At the next meeting held on 31 January 2012, notes were also taken and again the applicant agreed that they were accurate. It is clear that in the intervening period since the last meeting the applicant had considered alternative duties within the respondent. 43 Ms Pryke stated that it was not just his stomach and the hernia operation he had had but also his sleep apnoea, lower back pain, arthritis in his left foot and reflux. In considering other duties Ms Pryke stated that the respondent would not place the applicant in a position which would be a danger to his own health or the health of others. A variety of tasks were discussed and either were rejected by the respondent as unacceptable due to his medical restrictions or further consideration would be given. 44Correspondence dated 3 February 2012 from Ms Pryke to Ms Monica Barone ( Chief Executive Officer) expressed the recommendation to terminate the appellant. The correspondence included a detailed response to alternative proposed duties/roles and the respondent's review. In summary the review could not find an alternative job for the applicant. 45No medical evidence was placed before the Commission that cleared the applicant to return to his position with the respondent. 46The latest medical certificate was a WorkCover PROGRESS from Dr Ly dated 13 June 2012. Dr Ly stated that the Date of Injury: March 2008. This certificate stated that the applicant is fit for suitable duties from 14 June 2012 to 14 July 2012, with a lifting capacity up to 8 kgs. It also stated that he has a 10min break each hour and to avoid frequently repetitive bending of lower back. 47I have noted the comments made by a Full Bench in Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley[2012] NSWIRComm 74: 145If there are genuine concerns on the part of an employer and the concerns are soundly based that an employee is at risk of re-injury and may be a risk to the health and safety of other workers, before making a decision to terminate the employee - a step that in very many cases may have drastic consequences for the individual - it is our opinion there is an obligation on the employer to first examine all of the alternatives including rehabilitation, alternative work and adapting the workplace to the employee's needs. Termination of employment should be the last resort. 48By this application for re instatement, the applicant seeks to return to his previous occupation. He does not seek re employment in a different role and it is not an application under the injured worker provisions of the Workers Compensation Act as was the employee in the case above. The role he was carry out was a physical one , with a great deal of bending, lifting , twisting and squatting. His sick leave record shows that the applicant had taken a great deal of sick leave over his time with the respondent. No medical evidence was provided that cleared the applicant to return to his previous employment without restrictions. 49 The latest medical evidence did not clear him to return to his normal occupation. The comments that came from the applicant during the meetings held in January 2012 clearly show that the applicant himself did not believe he was in a position to safely carry out his normal role. 50 I am satisfied that the respondent made a genuine attempt to locate an alternative position, but based on the physical restrictions of the applicant and or his lack of the necessary skills to carry out a particular role no alternative suitable position was located. 51In summary it is my finding that the respondent faced with the physical restrictions of the applicant had no alternative but to terminate him from his employment. It is my finding that the termination was neither harsh, unjust or unreasonable. 52This application is therefore dismissed and this matter is therefore concluded. D. Ritchie Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2012