Neville Brown and Parramatta City Council [2014] NSWIRComm 1002

Industrial Relations Commission New South Wales Medium Neutral Citation: Neville Brown and Parramatta City Council [2014] NSWIRComm 1002 Hearing dates: 22 and 23 August 2013, 23 October 2013 Decision date: 22 January 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim upheld. Dismissal unfair; Council to pay to the Applicant four weeks pay within 14 days of date of decision Catchwords: Unfair Dismissal application-alleged workplace injury-alleged aggravation of workplace injury and new injury-alternative suitable duties provided-Applicant lost his drivers' licence for 12 months-driving was inherent requirement of his position- workers' compensation claims rejected-applicant proposed rehabilitation proposal-dismissed. Legislation Cited: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Long Service Leave Act 1955 Cases Cited: Wiseman v Borneham (1971) AC 297 at 310; Lleysham v Wyndam City Council (FWC U 2013/7274 on 14.10.2013); Category: Principal judgment Parties: Mr Peter Rochfort, Rochfort Associates Pty Ltd (for the Applicant) Mr Raymond Mouwad, Diplomacy Management Consulting Pty Ltd (for the Respondent) Representation: Mr Michael Easton (Respondent) File Number(s): IRC 365 of 2013

DECISION 1Mr Neville Brown, the Applicant, was employed by Parramatta City Council, the Respondent, as a full-time Grade 3 Driver/Team Member in the two person Civil Works Team with a Team Leader. His employment period spanned from 4 February 2008 to10 May 2013 pursuant to the terms and conditions of the Local Government (State) Award 2010. 2The Applicant claimed he strained his lower back at work on 3 January 2012 while pulling a portable toilet and submitted a workers' compensation claim. He was cleared for pre-injury duties on 6 July 2012. 3The Applicant made a protective disclosure complaint against Mr Cremasco, the Service Manager Civil Works, alleging bullying and harassment. 4The Applicant claimed he sustained a knee injury on 19 September 2012 and an aggravation of his lower back injury. He claimed they were workplace injuries. 5The Respondent provided the Applicant with alternate suitable duties from both within and outside the Civil team from January 2012 until December 2012 when his claims were eventually declined by Council's insurer, the GIO. The medical restrictions did not prevent the Applicant from performing driving duties. 6As a consequence of GIO declining the claims, Council referred the Applicant for a fitness to continue examination. 7In the course of getting the Applicant back to his normal duties, he advised the Respondent, in December 2012, that he could not return to his substantive role because he had lost his driver's licence. The Applicant was convicted, in January 2013, of refusal to undertake a breath analysis test when requested to do so. He had driven from one part of the Hotel's car park to another part. His licence was suspended for 12 months. 8The Respondent contended that it had, by then exhausted alternate suitable duties for the Applicant and there were no redeployment opportunities available to him as a Driver. He was advised by his manager that he could use his leave entitlements to cover his absences since his workers' compensation claim had been declined. His last working day was 5 March 2013. 9The Applicant's employment was eventually terminated on 10 May 2013 on the grounds of him losing his licence, an inherent requirement for his driver role. The Council insisted that the Applicant was not dismissed as a result of his injury. 10The Applicant contended that he had been bullied and harassed into taking all of his leave entitlements; and into participating in rehabilitation at the work sites and workplace. He also contended that other employees who had lost their driver's licences had not been dismissed from employment. 11Conciliation proceedings before Newall C, held on 3 June 2013 were unsuccessful. Standard directions were issued and the matter was set down for hearing before the Commission as currently constituted on 22 and 23 August 2013. The matter was not concluded as there was one outstanding witness for the Respondent who was required for cross-examination but was unable to attend as she was due to give birth on or about that time. The proceedings were adjourned, at the request of the parties, to be re-listed when she was able to give evidence. 12The matter was listed for two further directions hearings - on 3 September 2013 which was vacated as the witness had not still given birth and on 18 September 2013 at which time the parties, by consent, sought that the matter be stood over to late in November 2013 as the witness was scheduled to be induced on 23 September 2013. 13On 23 October 2013, the Commission reconvened and accepted the statements of Ms Petrina Lobo into evidence. She was not able to attend owing to post-natal medical issues. The Applicant did not require her for cross-examination. 14Mr Peter Rochfort, Agent, appeared on behalf of the Applicant and called evidence from Mr Brown. 15Mr Michael Easton, Counsel, appeared on behalf of the Respondent and called evidence from: Jodi Dickson Manager, Human Resources Michael Cremasco Service Manager, Civil Works Terry Johnson Service Manager, Cleaning Unit 16The Applicant was seeking compensation equivalent to six months' remuneration as he was apprehensive about returning to the workplace.