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. The Evidence 17The Applicant tendered a statement in the proceedings in which he stated that he worked as a concreter/driver performing general duties as a team member. Those duties included driving a Council vehicle to various jobs for a maximum period of about 30 minutes for each job site and then performing labouring duties ancillary to the concreting. He contended that the "inherent requirements" of his position were not explained to him at any time. He was now aware, having seen a copy of his Position Description, that he was not required to "undertake the full range of physical duties required". 18His team leader was Sean Daniec, who was instrumental in his initial employment with the Council. 19The Applicant pointed out that he received two "Celebrating Success Awards" from his employer - one in 2010 for devising a method by which concrete may be removed without the need for physical labour and another in 2011 for excellent customer service. 20The Applicant gave evidence that, on 3 January 2012, he was diagnosed with "lower back sprain and bulging discs" and certified with capacity for lifting/carrying as well as pushing/pulling up to 7 kg, sitting and standing tolerances of 5-10 minutes per hour, limited capacity for bending/twisting/ squatting. His driving ability was limited to 30 minutes. He contended that he suffered the injury while at work on that day. Despite being able to undertake some of the tasks associated with his position in the Civil Works Division, he said he was provided with routine work within the Cleaning division, such as picking up litter and cleaning public toilets supervised by the Manager of that Department, Mr Wayne Griffiths. He contended that he was not provided with a job description for the work he performed in the Cleaning Department. He merely performed the less arduous work he was directed to undertake, same as the casual staff the Council engaged from time to time through a labour hire agency. He pointed out that he was not aware of any complaints against him for underperformance. The Applicant appended a WorkCover Certificate of 27 May 2013 which indicated his ability to undertake the above alternate suitable duties over the period 31 May 2013 to 31 August 2013. 21He denied the evidence of Mr Cremasco, Acting Service` Manager for the City Services Section of the Civil Works Department, that the latter had no direct supervisory contact with him pointing out that Mr Cremasco would call him into his office, tell him to "shut the door" and then proceed to intimidate him into dubbing on his workmates by asking him for information as to who was "causing trouble in the yard" or who was "complaining". 22The Applicant stated that he also continued to perform work in the Civil Works Division in the capacity of team leader in the pot hole truck which travelled throughout the municipality filling in pot holes during the time he was on alternate suitable duties. He did that work for about two months. Council has since ceased to perform that work. While he was undertaking that work, he said Mr Cremasco had, on a number of occasions, threatened that "you will be shown the door if you don't get off workers compensation, because there are already too many people on workers comp in Civil". 23The Applicant gave evidence that, in August 2012, he lodged a "protective disclosure" complaint alleging workplace bullying and harassment against Mr Cremasco. He pointed out that nothing had been done to resolve his complaint. Yet, when Mr Johnson's son (who was also employed by the Council) complained of bullying within his unit, he was transferred to a permanent position within his father's unit. He complained to Mr Morris Doria and sought advice as to whether to put his bullying and harassment complaint in writing which, he said, he was prepared to do. He said Mr Doria said to him words to the effect "It is not necessary - however, I am only prepared to investigate your complaint if you agree for me to use your name as being the complainant". He said that although he felt intimidated and anxious because he was concerned about further action being taken against him, he had not terminated the process. He simply insisted that his name not be used in any investigation of his complaint. As far as he was aware, the complaint was not formally investigated. 24The Applicant stated that he suffered a further injury while at work on 19 September 2012. He was diagnosed with "knee medial sprain - joint effusion". He appended another WorkCover Certificate to his statement which certified him as fit for suitable duties with the same restrictions as previously stipulated. The Certificate, issued on 27 May 2013 declared the Applicant as having capacity for some type of employment from 31 May 2013 - 31 August 2013. He resumed picking up litter and cleaning public toilets from 4 February 2013 and continued performing those duties until his termination. 25The Applicant noted that there were approximately seven employees engaged on those duties. 26He said his workers' compensation claim was declined by GIO on 18 December 2012 and was the subject of a further review at the time of the hearing. 27The Applicant stated that he obtained another WorkCover certificate which certified him as fit for suitable duties covering the period 14 December 2012 to 31 January 2013. The lifting capacity was reduced to 4 kg. 28The Applicant stated that he met with Mr Cremasco on 18 December 2012 at which time the following conversation took place: Cremasco: You are to take two weeks leave without pay and not come back to work until you have a medical certificate stating that you are fully fit to return to work. Brown: I have a certificate up to the 31st of January, 2013 which states that I can do some work. I will not be seeing my doctor again until 31 January net year. Cremasco: In that case, stay off until 31 January and then only come back if you have a certificate that you are fully fit. The Applicant stated that he went home after the meeting. That meeting was denied by Mr Cremasco who pointed out that, to his recollection, the Applicant was on leave from18 December 2012 until 1 February 2013. In any event, he would not have discussed leave without pay with the Applicant until all other forms of paid leave had been exhausted. He also pointed out that it was standard practice to seek a doctor's clearance prior to employees returning to work after an injury. 29He said he received, on or about 20 December 2012, an Application for Leave form made out by Mr Cremasco. Mr Cremasco noted in the "Comments" box: "I have filled out this form on behalf of Neville Brown as he instructed in a telephone conversation at 10.30 am on 20/12/2012". The form sought 16 days annual leave, 3 grant days, 4 public holidays and 11 days' leave without pay which would take the Applicant from 18 December 2012 through to 4 February 2013. Mr Cremasco signed it in his capacity as Acting Service Manager. The Applicant alleged that the signature in the box intended for him was a forgery of his signature by Mr Cremasco and that he had, at no time, applied for leave. He had merely complied with the instruction, in breach of section 3 of the Long Service Leave Act 1955, to stay off work until 31 January 2013. 30At 10.10 pm on Saturday, 5 January 2013, there was an incident, not related to work, at the car park of Greystanes Inn. The Applicant said he had refused to undertake a breath analysis under the mistaken belief that he was on private property when approached by the Police. Late in January 2013, the Applicant advised Mr Cremasco of a charge laid against him for refusal to undergo a breath test. 31Despite the instruction from Mr Cremasco not to attend work, and despite the leave form, the Applicant stated that he was instructed, during a telephone call from Ms Petrina Lobo, Case Manager Consultant, on 28 January 2013 to return to work as he was still on Workers' Compensation and able to perform suitable duties. He said he resumed his duties in the cleaning department. 32On 1 February 2013, the Applicant attended Fairfield Local Court regarding the charge. He was convicted and lost his drivers' licence for 12 months (the maximum period that may be imposed for such charge being two years). 33The Applicant said he advised Mr Cremasco of the loss of his licence in a telephone call to him on 1 February 2013. He said the latter simply told him to "report to cleaning" and no further conversation took place. He continued working for the Council performing general cleaning duties within the Cleaning Department. He pointed out that there were many roles he could have performed where his experience and expertise would have been utilised - truck offsider, traffic control, forklift driving, front-end loader operation and working with overhead power lines. Mr Cremasco confirmed that the Applicant advised him, on or about the last week in January 2013 of the loss of his licence for a "high range drink driving offence" which occurred late at night in the car park of a hotel in Merrylands in December 2012/January 2013. He said he asked the Applicant to confirm the advice in writing, indicate the situation he was facing and what he would like the Council to consider but that was not forthcoming. Mr Cremasco pointed out that suitable duties were provided to him in the Cleansing Unit and he was not required to drive as the Civil Unit was closed for the holiday period. 34The Applicant said that, at approximately 8.10 am on 5 March 2013, Mr Cremasco grunted at him as he walked past him. (Mr Cremasco denied that allegation suggesting that it was completely against his nature and inconceivable considering the assistance he had provided to the Applicant over and above what Council was required to do for him.) At approximately 9 am, he said he received a telephone call from Wayne Griffith who said to him words to the effect, "This has nothing to do with work. You are a good worker but you have to go to see Mick Cremasco." The Applicant proceeded to Mr Cremasco's office where he recalled the following conversation took place: Cremasco: Because you have lost your licence, I require you to take your long service leave until we can find out what to do with you. Applicant: I do not wish to take long service leave. What about the work I am doing now? They are already at least two drivers who lost their licences and have been given other duties until they get their licences back. Cremasco: That's too bad for you - you are to take your long service leave now. The Applicant said he was presented with an Application for Leave Form from the Civil Works Department, already completed by Mr Cremasco, and directed to sign it. He said that he signed it under duress. 35It is noted that the leave application was for the period 5 March - 28 April 2013 broken up as follows: Long Service Leave 05.03.13-21.04.13 Annual Leave 21.04.13-28.04.13 Public Holidays 29.03.13; 01.04.13; 25.04.13 Rostered Days Off 6 days 36The Applicant confirmed that he had received a call from Ms Lobo on 3 April 2013 during which the following conversation took place: Lobo: How's everything going? Applicant: Not bad, considering. I am pretty down by the fact that I am not getting the improvement I had hoped for. Lobo: Okay then. He denied that he said he was doing "absolutely nothing" as that was incorrect. He was still consulting his doctor regarding treatment for his condition. He also denied making any statement to Ms Lobo that his doctor was "coordinating treatment under an EPC Plan-Medicare" pointing out that his doctor would not have used that term considering that the Enhanced Primary Care Programme is now obsolete. He said that Mr Duong told Ms Lobo during a telephone call that she made to him on 26 April 2013 that he was unable to provide her with information as to the treatment he was providing to the Applicant without the latter's authority. The Applicant gave such authority when it was requested of him. He further advised that the only discussion held with Ms Lobo was in relation to her request that he consult a different physiotherapist from the KYZEN Group. He recalled that she had not commented on the response he gave which was to the effect that: Applicant: I am happy to do that, but seeing the consultations are not covered by Medicare and I do not consider it right that I continue to charge the attendances to Medicare. Also, the consultations are no longer covered by WorkCover. Who is going to pay for them? Is Council prepared to meet the cost? 37The Applicant stated that he received a telephone call from Ms Lobo on Friday, 26 April 2013 advising him that she was awaiting confirmation that "There is work for you in the library". On Monday, 29 April 2013, Ms Lobo telephoned him and asked him to come into work the following morning at 11 am. 38The Applicant stated that, when he attended the office on 30 April 2013, he was required to meet with Ms Lobo, Mr Cremasco and Harry Ross from the Human Resources Department. He said that his immediate response was to point out - Applicant: I am uncomfortable the way this is all set up, especially as I do not have a support person here with me. Am I able to record what record goes on?" (sic) Ross: No you are not. Just sit down and listen. You don't have to answer anything at this time. The Applicant said he was handed a sealed yellow envelope and advised by Mr Ross that "You have 24 hours to respond." He left the meeting feeling intimidated. There was no opportunity given for discussion. He denied that he had refused to listen. He contended that he had not received prior notice of the purpose of the meeting. The offer to have a support person in attendance was not made until the meeting commenced at which time he advised that his nominated person was not available and it was too short a notice to arrange for anyone else to attend. 39The envelope contained a letter from Ms Lobo pointing out that if he agreed to commit to the treatment proposal contained within the correspondence, then Council would endeavour to find him alternate suitable duties for a temporary period of four weeks at the end of which he would be required to undertake a fitness for duty assessment to assess his fitness to resume his usual role. The correspondence pointed out that the treatment intervention it proposed had been suggested by Quality Occupational Health (QOH) which had previously been involved in recommending a work conditioning program to assist his recovery and return to normal duties. It explained that the intervention was necessary because the Applicant had not continued to attend treatment or comply with home based exercises since his claims were declined by the GIO; his previous physiotherapist had declined to discuss his progress with the Respondent; and, it was understood that his doctor was developing a referral for treatment under the Chronic Disease Management (CDM) program (formerly known as the Enhanced Primary Care (EPC) Programme) under Medicare. According to Ms Lobo's enquiries, some general practitioners were still using up their supplies of the EPC forms and she had received one with respect to the Applicant as recently as 29 April 2013. 40The treatment intervention proposed by QOH was stated to be as follows: - Council to arrange an initial assessment through Kyzen Group Fitness Solutions (at Council's cost) where an Exercise Physiologist will develop a work conditioning treatment plan to be discussed with your treating doctor. - Kyzen Group, in consultation with you and your treating doctor, will follow up the referral documentation under the EPC program (if this is applicable to you) so you can receive 5 further sessions of treatment with an exercise physiologist; - With your consent, Kyzen group will communicate with Council on your progress and any further needs to assist with a gradual return to normal duties. Kyzen group will also remain in consultation with your treating doctor. Please note that if your treatment is approved under the EPC program, Kyzen Group will bulk bill the costs of treatment through Medicare, and therefore your treatment will be at no cost to you.... 41The Applicant said he called Ms Lobo at approximately 9 am on 1 May 2013 and had the following conversation: Applicant: I have read your letter. I cannot understand why you want me to consult with another Physiotherapist when I am already attending one nominated by my treating doctor. I do not consider it right to charge Medicare when what you are asking is not reasonable under the circumstances. If the Council wants me to do this, I will do so, but Council should be paying. Lobo: Alright then. He denied that he received anything more than perfunctory support from the Council. 42The Applicant said he did not hear anything more until Tuesday, 7 May 2013 when he received a letter from Harry Ross dated the previous day inviting him to attend a meeting with him and Michael Cremasco on 10 May 2013 to discuss: * Your inability to perform the inherent requirements of your position on account of your loss of licence; and * Consideration that Council is giving to your on-going employment. He was advised that he could be accompanied by a workplace representative. 43The Applicant stated that he attended the meeting but "[t]o this point I had not been advised the purpose of the meeting other than what was stated in the letter of 6 May, 2013, and certainly nothing to the effect that I was to be dismissed at that time". He said that Mr Cremasco came to the point immediately saying, "I'm not going to beat around the bush. You are terminated for losing your licence and you cannot perform your role". He said he was not given the opportunity to respond at all and the meeting ended as abruptly as it had begun. He conceded that driving may have constituted up to about 30% of his work duties but pointed out that, in the 8-month period between his workers' compensation injury and losing his licence, he was not allocated duties requiring him to drive the truck. 44The letter of termination, dated 10 May 2013, signed by Mr Ross, advised that the termination was the result of the Applicant losing his driver's licence for an extended period of time and his resulting inability to perform the inherent requirements of his role as Driver within the Civil Works team. 45In conclusion, the Applicant submitted that his termination was harsh, unjust and unreasonable for the following reasons: (a)notwithstanding the fact that he had not been able to perform the more labour intensive aspects of his principal duties, he was able to perform certain aspects of those duties, including driving up to 30 minutes - sufficient to meet the work demands on his team. He maintained that there were, at all times, functions within the Council overall, including those being performed by labour hire personnel, and consistent with his position description, that he was able to perform and which were not affected by the limitations imposed on him; (b)it was nonsense to suggest that all alternative duties had been exhausted as the duties were, and still are, part and parcel of the services provided by Council to ratepayers by both its full-time and casual employees; (c)Council was obligated, pursuant to s 49 of the Workplace Injury Management and Workers Compensation Act 1998, to provide him with suitable work; (d)he had been allocated that work with the Cleaning division of Council and he had performed that work without complaint or issue taken regarding his performance; (e)the loss of his licence did not preclude him from being able to perform a useful role which he did until his termination. Other drivers who had lost their licences had been provided with such work and the fact that he had been treated differently smacked of discrimination which he believed stemmed from the protected disclosure complaint he had made against Mr Cremasco relating to bullying and harassment and misconduct; (f)the "inherent requirements" of his role had never been explained to him and he considered that his role extended beyond that of "driver"; (g)the duties he had been performing at the time of his termination had been viable and were capable of continuing to be performed without restriction. Mr Johnson had a full complement of staff because the work was being performed by intermittent temporary staff engaged through a labour hire company; (h)he was not provided with any opportunity to either explain or justify the position he had adopted. The decision to dismiss him had clearly been made without consideration for anything he might have to say in mitigation; (i)At no time was he extended the option of taking leave without pay which would not only have been fair and reasonable considering his personal domestic circumstances; and (j)he is a married man with three children to support. He had no immediate income to provide his family with necessities, particularly to one of his children who has special needs resulting from Autism and particularly because he was forced to exhaust all of his leave entitlements leaving him with no financial reserves. 46The Applicant said that he had not seen a position description (PD) for his role nor were his duties ever explained to him until he saw the PD attached to Mr Cremasco's statement. He pointed out that, having perused the PD, - he could not identify a single "inherent requirement" of the job; - he undertook his tasks in a manner that ensured that standards, specifications, practices and policies were followed and the work was completed within time and within budget; - he possessed the essential skills to perform the core tasks set out in the PD; - he possessed one or more of the job specific skills and experience requirements set out in the PD; - he performed a number of duties not listed in the PD; and - up until he lost his licence, he was able to perform the driving duties required for the position. 47The Applicant stated that despite the above, Mr Cremasco refused to allocate him driving duties required for the position and that refusal caused him a lot of anxiety as he was fearful of losing his job. 48The Applicant further pointed out that, even after he lost his licence, there was work within the descriptors for his position that he could have performed which, unlike concreting and other labouring tasks, were not hindered by his injury. 49The Applicant stated that he had never met or heard from Ms Dickson and had not received a copy of the "Anti-Bullying Policy" prior to the hearing. 50Finally, the Applicant denied ever being aggressive, rude or unprofessional in his dealings with Ms Lobo or any other Council staff. He considered his dealings with other Council staff to be courteous and friendly except for Mr Cremasco with whom his manner was guarded. 51Ms Jodi Dickson, Manager, Human Resources, said that the Applicant was drawn to her attention when Mr Mick Cremasco sought her advice regarding the Applicant's loss of licence which resulted in him being unable to perform the inherent requirements of his substantive role with Council. 52Ms Dickson pointed out that an examination of Council's records revealed that the Applicant's position description clearly outlined the duties of the position he held. The Applicant would have read and understood the position description when he accepted the offer for the position and appended his signature to it. 53Ms Dickson gave evidence that Council had provided the Applicant with alternate suitable duties in various work locations as required by Section 49 of the Workers' Compensation Act on the premise that the injuries were work-related. 54As those alternative suitable duties were created specifically for injured workers and were not available on a permanent basis, those duties were no longer available to the Applicant once Council's insurers, in December 2012, declined his claim for workers' compensation. 55Ms Dickson pointed out that the Applicant's personal injuries precluded him from performing concreting and labouring duties that formed part of his normal role. Therefore, the only duties Council was able to provide him with were driving duties. 56Ms Dickson recalled that the Applicant advised Council, in January 2013, that he would be unable to perform the driving duties as his licence had been suspended for 12 months due to a second conviction for high range driving under the influence of alcohol. 57She stated that she was aware that the Applicant became unco-operative with Ms Petrina Lobo, Council's Workers' Compensation Officer, who was attempting to assist him with treatment for his personal injuries in order to establish a time line of when he may be able to perform the other non-driving part of his role. He refused to comply with requests for information to assist him with ongoing treatment because he was unhappy with the insurer's decision not to accept liability. 58Ms Dickson was aware from Mr Cremasco and Ms Lobo that Mr Brown had exhausted all paid leave entitlements and was requesting suitable duties or termination of employment. She pointed out that Council was not asked, at any time, to consider granting him leave without pay until he regained his driver's licence as other employees in the same position had done in the past, mainly from the cleansing team. In applications such as these, the Council goes through a management process of assessing a whole range of factors including work and personal circumstances. 59Ms Dickson provided Mr Cremasco with advice in relation to the Applicant. She advised that the Applicant was to be accommodated within his own work unit (civil team) so that the costs and the risk/liability was contained to that department. He could no longer perform the alternate suitable duties drawn from various roles in cleansing and other units as they had specifically been created to assist those with work-related injuries. On that basis, the only duty he could carry out, bearing in mind his restrictions resulting from his personal injuries, was driving. As he was prevented from driving due to his DUI conviction, his only options were to apply for leave for the period of his licence suspension or cessation of the employment relationship. 60Ms Dickson explained that her reasoning for giving that advice to Mr Cremasco. She explained that:. - Council had met all of its obligations in regards to managing the Applicant's injuries when it was thought that they were work-related; - Council needed to adopt a consistent approach in relation to provision of alternative suitable duties when requests are made to accommodate non-work related injuries - There were no vacant positions that the Applicant could; move into during the period of suspension of his drivers' licence; - The Applicant had been accommodated when he lost his drivers' licence for the first DUI offence as he was able to perform the non-driving aspects of his position; - It was not reasonable for the Applicant to expect Council to provide further alternate suitable duties for a second DUI offence; and - In those circumstances, and having exhausted all of his paid leave, the Applicant's options were limited. She considered that the only appropriate course of action for the Council was to terminate the Applicant's services having satisfied herself that the Applicant had been accorded due process under the Award and the Council's relevant policies. 61Mr Terry Johnson, Service Manager Cleansing Unit, tendered a statement in the proceedings in which he advised as follows: - Many of the tasks performed by his staff were of low physical impact and could be performed with little technical training; - He was requested, from time to time, to provide temporary alternate suitable duties to employees, both from within and outside his unit, who had sustained a workplace injury; - In providing those alternate suitable duties, he was required to ensure that his unit was not adversely affected; - To that end, he would assess and consider the worker's physical and work/time restrictions as evidenced in the return to work plan or medical certificate and the various tasks that would need to be collated in order to provide such temporary duties within the hours required; - Those tasks do not form permanent roles. Rather, they are piecemeal, low priority and available as a result of other employees being absent on leave or as a result of work requirements necessitating a supplement to the normal daily team; and - The provision of such suitable alternate duties meant that additional supervision and planning was required as they impacted not only on the scheduled works but ultimately on the efficiencies and productivity of his unit. 62Taking into consideration the above, he was able to provide the Applicant with alternate suitable duties befitting his physical restrictions drawn from roles within the cleansing unit to form a body of temporary work in the period September - December 2012. 63Mr Johnson pointed out that alternate suitable duties created in such circumstances require the person to be driving between 40% - 50% of the time. 64Mr Johnson gave evidence that he had a full complement of staff in December 2012 and he was no longer able to accommodate the Applicant in his unit. The Applicant was required to return to the Civil Unit to undertake suitable alternate duties. 65He said he received another approach in February 2013 to provide the Applicant with suitable alternate duties owing to another work related injury. He said he was able to accommodate him until 5 March 2013 when it was revealed that the injuries were not work-related and therefore Council was under no obligation to continue to provide him with suitable alternate duties. In addition, the Applicant was unable to undertake the full range of physical duties required. Mr Johnson said he advised Mr Cremasco that he would have to accommodate the Applicant within his own unit. 66Mr Johnson explained that casuals, supplied by external Agencies, were utilised as a cost effective and efficient solution to backfill positions left vacant by staff whilst they were on leave, workers' compensation, secondment and the like. They were also utilised to backfill, on a temporary basis, vacant permanent positions pending filling by permanent staff. He emphasised that Agency staff are required to undertake the full range of duties when they work in the Cleansing Unit, including driving, repetitive manual tasks and heavy lifting. 67Mr Johnson stated that it was incorrect to say that the Applicant was never counselled when he worked in other units. He pointed out that during the Applicant's initial placement in the cleansing unit in 2012, his supervisor, Wayne Griffiths, had counselled him in relation to his failure to advise of planned and unplanned absences. There had been an improvement in the Applicant's attendance and forewarning of absences. 68He set out the management process adopted by the Council with respect to employees who had lost their drivers' licences: Step 1: Employee is required to advice the Manager of their unit of: * the circumstances surrounding the incident/charges; * the likely outcome of the charge; * their request of Council in relation to their work role; * relevant, including domestic, information they would like Council to consider. Step 2: The Unit Manager assesses their situation and decides if Council should support them until the outcome of the charge is known. Step 3: If the outcome of the charge is a conviction, then employees are invited to exhaust all forms of paid leave. Leave without pay may be offered until they regain their licence if duties elsewhere in their section are not able to be provided, or a combination thereof. 69Mr Johnson advised that he considered the following matters in assessing the situation as per step 2 above: 1. The employee's written advice on the loss of licence; 2. The employee's personal impact statement; 3. A letter from the employee's supervisor; 4. The requirements/obligations/rights of the parties pursuant to the Award; 5. Whether the employee had shown genuine remorse; 6. Participation in a "Traffic Offenders Program"; 7. When the Respondent was advised of the loss of licence; 8. What operational duties the employee is able to perform within that unit; 9. The employee's suitability and qualifications for alternate duties; 10. The employee's support of Councils guiding principles of accountability; 11. The employee's personnel file and whether any previous warnings/performance issues were recorded; 12. His own observations of the employee's work practices and any positive reports/compliments that may have been received from the general public; and 13. Vacancies and general work availability within that unit. 70Mr Johnson pointed out that he never sought nor offered duties to anyone who had lost their drivers' licences within any other unit in Council and did not believe that Mr Cremasco had either. 71Mr Johnson proceeded to provide examples of employees who had been in similar circumstances to the Applicant (that is, loss of licence but not a combination of loss of licence and physical restrictions). Following assessment, one employee had been allowed to exhaust his paid leave, was then seconded into a lower grade vacant position and suffered at least 10% reduction in pay in addition to the removal of his overtime. Two other employees were allowed to exhaust all their leave entitlements prior to being granted leave without pay (generally not more than one month) until the outcomes of their high range PCA charges were known. One subsequently lost his licence for 12 months and his employment was terminated and the other resigned voluntarily. 72Mr Johnson pointed out that Council generally cannot keep a position open unless the conviction is for a short period of time, up to a maximum of six months. It was consistent practice across Council to terminate the employment of an employee whose disqualification was for a period of 12 months. 73Mr Michael Cremasco tendered a statement in the proceedings in which he advised that he had supervised and managed the Applicant in his capacity as Supervisor Civil Works in the period February 2006 to October 2011. 74Thereafter, he was seconded to and then appointed to the position of Service Manager Civil Works and therefore ceased to have direct supervisory contact with the Applicant as there were two layers of functional separation between them - the Applicant's Team Leader who reported directly to the Applicant's Supervisor who, in turn, reported to him), albeit he had ultimate overall responsibility for the whole Civil Works team. 75Mr Cremasco attached to his statement a copy of the Applicant's Position Description which listed the driving of a 2 axle truck (a 4 tonne truck) as one of the key accountabilities of the position, particularly as the number of drivers was reduced from three to two (one of whom was classed as Team Leader) during a restructure in November 2011 to improve efficiency and productivity. Therefore, prior to his injury in January 2012, the Applicant was part of a two person team performing duties as a Driver/Team Member undertaking driving, concreting and labouring. His primary responsibility was to provide transport to and from sites and collect materials and supplies so as to ensure that the Team Leader was able to remain on site. 76Mr Cremasco gave evidence that, given the Applicant's licence was suspended in February 2013 to January 2014, he was prevented from undertaking an integral part of his substantive role. In addition, given the physical restrictions imposed as a result of his personal injuries, the Applicant was unable to perform the labour/team member aspect of his normal duties. He therefore sought advice from Human Resources as to how to handle the situation. 77Mr Cremasco stated that the Team Leader is only required to have the ability to drive in case of an emergency and not routinely. Driving accounted for a significant part of the Applicant's workload (30%-40%) given he was the other half of the 2 person team. On average each team visits approximately 3 sites per day and may visit the same site more than once a day to pick up/drop off materials and so on. Considering that the area covered by the Council spanned from Epping/Winston Hills to Toongabbie/Old Guildford/Melrose Park, it was a 30-minute drive from one boundary to another. It was conservatively estimated that the Applicant could be driving at least 1 hour to 1.5 hours per day. 78Mr Cremasco rejected the Applicant's implication that he could have done the work undertaken by casuals (that is, picking up litter and cleaning public toilets) on a full-time basis. He confirmed that Agency staff are engaged when necessary to backfill positions which have become vacant as a result of leave or other absences by staff. That policy was consistent throughout Civil Operations which covers four units - the Civil Team, Trades and Facilities Team, Cleansing Team and Parks Team. He pointed out that those casuals, when engaged, were required to undertake the full gamut of duties required of the position including, in the case of the Civil and Cleansing Units, heavy lifting. 79Mr Cremasco pointed out that the Applicant had been provided with suitable alternate duties compiled from Grade 2 basic labouring duties (light cleaning, collecting litter and other general unskilled duties) and were dissimilar to those duties he was required to perform in his substantive role. 80Mr Cremasco confirmed that Mr Ross had declined the Applicant's request to tape record the meeting on 30 April 2013 as his Solicitor was unable to attend the meeting. However, Mr Ross did provide the Applicant with an opportunity to have a union or other support person in attendance. That offer had been rejected by the Applicant. Mr Ross provided the Applicant with an envelope and asked the Applicant to take it away, consider and obtain advice on its contents and provide feedback to the Council by 1 May 2013. It was his understanding that the Applicant telephoned Ms Lobo on the due date and declined Council's offer to assist him. 81Mr Cremasco also confirmed that the decision to terminate the Applicant's services was his, following consultation with his Manager and with staff from Human Resources. The termination was communicated to the Applicant at a meeting on 10 May 2013 in the presence of Mr Ross. He pointed out that the purpose of the meeting was notified very clearly to the Applicant in the letter dated 6 May 2013 and he was as upfront and honest as he could be with the Applicant given the circumstances. He told him that they had reached the end of the road because of his inability to drive in addition to his physical restrictions. He said it was hard to believe how well the Applicant took the news, how calm and relaxed he was and when he left the room, he took the termination letter with him in an envelope which he had not opened. 82Mr Cremasco denied the allegation that he had forged the Applicant's signature pointing out that the Applicant did not need to sign it as it was approved and signed by him as the Manager and he had noted on the form the words "I have filled out this form on behalf of Neville Brown as he instructed in a telephone conversation at 10.30 am on 20/12/2012". 83Whilst he accepted that the Applicant had received a "Celebrating Success Award", Mr Cremasco pointed out that those awards were made on a fairly regular basis and were not a substitute for feedback and formal appraisals. Protected Disclosures 84Ms Dickson, having become aware through Mr Rochfort that the Applicant was seeking to have his protected disclosure considered as part of his unfair dismissal claim, and having received authority from the Applicant to speak to General Counsel, Mr Maurice Doria, about the matter, made enquiries about such claims. 85Ms Dickson's enquiries revealed that: - Until the Applicant mentioned the "Protected Disclosure" action to Council's industrial advocate, only the Applicant and Mr Doria were aware - Mr Doria understood that the Applicant was struggling with the business changes that were occurring at the Depot and his concerns were driven by fear of change; - Mr Doria disagreed with the statement by the Applicant that he had lodged, in August 2012, a "protective disclosure" complaint against Mr Cremasco alleging workplace bullying and harassment; - Mr Doria and Mr Cremasco had a number of discussions at the conclusion of which the Applicant neither requested nor took any further action on the information he had given Mr Doria; and - The process was terminated by the Applicant. 86Mr Cremasco denied any knowledge of a protected disclosure against him or any other employee by the Applicant. Bullying and Harassment 87Ms Dickson pointed out that Council had no record of any formal complaints made by the Applicant in relation to bullying and harassment by Mr Cremasco or any other Manager. 88Ms Dickson also pointed out that Council had no record of any informal or formal complaints made by any other employee in relation to bullying and harassment by Mr Cremasco. Relevant Legislative Provisions 89Section 88 of Chapter 2 of Part 6 of the Industrial Relations Act 1996 sets out the relevant matters to be considered by the Commission in determining a claim: SECTION 88 MATTERS TO BE CONSIDERED IN DETERMINING A CLAIM 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give any explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. THE SUBMISSIONS The submissions of the parties are summarised below. 90Mr Rochfort contended, on behalf of the Applicant, that, firstly, the termination was harsh, unreasonable and unjust in terms of s 84(1) of the Industrial Relations Act 1996 and that there was no proper ground for his dismissal. Secondly, it was contended that, in effecting the termination, the Respondent did not comply with the requirement to afford the Applicant procedural fairness. On that basis, therefore, the applicant was entitled to the benefit of an Order to adequately remedy the unfairness of his termination particularly since it was almost six months since his termination on 10 May 2013. Whether the Applicant was given a reason for his dismissal.... 91The Commission was advised that the Applicant was in a de facto relationship, was the sole income earner in the family his partner and three young children, one of whom suffered from autism. He had been employed by the Respondent for about five and a half years prior to his termination. 92He was acknowledged with two significant awards during his employment. One of those was the "Celebrating Success Award" which he received in 2010, together with $1000, for developing a method of moving concrete without physical exertion or the need to bend. It was hardly a feat which could be trivialised. 93It was submitted that the decision makers within Council were labouring under a significant misapprehension - namely, that Mr Brown lost his licence for a second offence of "a high range drink driving under the influence" which was incorrect. The Applicant was charged for simply insisting on his civil right to refuse to undergo a breath analysis on what he believed was private property. There was no evidence of him having consumed any alcohol although that misapprehension preyed heavily on the minds of the decision makers as evidenced in Ms Dickson's statement. 94Mr Rochfort proceeded to take the Commission through the criteria it was required to take into account, pursuant to s 88 of the Act, in determining whether the termination was harsh, unreasonable and unjust. 95Mr Rochfort pointed out that the Applicant was "invited" as opposed to "directed" to attend a meeting with a number of management personnel for the purpose of discussing his "... inability to perform the inherent requirements of your position on account of your loss of licence, and ... Consideration that Council is giving to your on-going employment." 96It was pointed out that neither of those issues to be discussed at the meeting gave the Applicant any suggestion that his dismissal was being contemplated. The Applicant did not receive any warning of an impending dismissal. The Applicant had lost his licence four months' earlier and was therefore not "hot news off the press". In addition, he had been performing work for the Council during that time. He believed that the meeting he was attending was to discuss the work he was going to be required to do, and even the possibility of working in the library as suggested by Ms Lobo. He attended the meeting to discuss his "ongoing employment" not the probability of his dismissal and therefore it was not surprising that he did not appreciate the need for a workplace representative to act as his support person. 97Mr Rochfort pointed out that the notice of meeting was the first occasion on which the Applicant was advised that he was not performing the inherent requirements of his position "on account of your loss of licence...". There was no evidence before the Commission to contradict the Applicant's evidence that he had neither been provided with nor seen position descriptions for his substantive role or for the position of Team Leader he had been promoted to, nor had he been advised what the inherent requirements of his position were, nor advised that possession of a current drivers' licence was an indispensable requirement to his employment with Council. 98It was also pointed out that neither of the position descriptions provided by Mr Cremasco defined nor even suggested what the inherent requirements of the respective positions were although the Applicant, having been given the opportunity of seeing those position descriptions in the Respondent's evidence, gave evidence that he was capable of performing and taking responsibility for the majority of the nominated responsibilities including, but not limited to, the skills which were required as "core" and those described as "essential" in the position descriptions. 99On the evidence of the Applicant, and more importantly, that of the Respondent's witnesses, the Applicant was able to satisfy the requirement, as stated in the position description, that he demonstrate some skills and experience related to one or more the nominated 13 areas. 100When Mr Brown was working, at one stage, as team leader in the Civil Works Unit he did not have to drive a vehicle as team leaders were often offsiders in the Council trucks. 101The question was raised as to why the Respondent did not call Mr Ross to give evidence given that he was the person who issued the termination letter. It was pointed out that the Applicant's version of what happened at the termination meeting was very similar to that of Mr Cremasco. It was common ground that Mr Brown said very little at that meeting. The termination letter had already been prepared and was ready to hand to him at the meeting. No procedural fairness was afforded to the Applicant in that he was not provided with an opportunity to speak in his own defence. 102The Applicant referred to a matter recently decided in the Fair Work Commission (14 October 2013) in Matter No U2013/7274, Lleysham v Wyndham City Council. The FWC accepted that while the termination process appeared to be procedurally fair, it was not fair in substance not unlike the present proceedings. The Respondent in these proceedings, it was submitted, gave lip service to the requirement to afford procedural fairness while not actually doing so - at least not enough to satisfy this Commission. The nature of the reason ...... 103Whilst it was conceded that driving was one of the many tasks required of the Applicant, it was pointed out that there were hundreds of other tasks within the Civil Work Unit which the Applicant could have undertaken as a consequence of him losing his licence. 104The Applicant denied ever receiving a PD albeit it was accepted that it was a document evidencing what can be described as "general" duties required of the Applicant. It was significant to note that, nevertheless, the PD did not describe any responsibility as inherent to the position the Applicant applied for although it detailed a considerable number of responsibilities under a variety of headings, namely "Key Accountabilities" , "Key Organisational Accountabilities", "Essential Qualifications, Experience and Skills" and so on. The Respondent's witnesses confirmed that the Applicant had performed satisfactorily the tasks in each of the categories and had done so without receiving any warnings in relation to his performance and had done so to the satisfaction of the Respondent. 105The fact that the Applicant was able to perform useful work for the Council from 5 January 2013 when he lost his licence until his termination four months' later was compelling and incontrovertible evidence that there abundant work for him to undertake even within the Civil Works Unit if no work was available for him in the Cleansing Unit. 106Mr Rochfort pointed out that the Applicant was performing useful and necessary work within the Cleansing Unit on 18 December 2012 when he was summoned by Mr Cremasco, who was not his immediate superior at that time, and arbitrarily directed to take leave seven days prior to Christmas. It was suspected that Mr Cremasco's display of ill will towards a man supporting a partner and three children, one of whom required medical attention, was motivated by the fact that the Applicant had filed a protected action claim against him for harassment. 107Mr Rochfort emphasised the significance of the fact that the Respondent had elevated the Applicant three positions to a Grade 6 Team Leader position within the Civil works unit during January 2013 - a move indicative of the high standard of work which the Applicant performed and was capable of performing. As the evidence indicated, the Team Leader was not required to drive the truck but was required to exercise a higher range of skills and capabilities. He suggested that an agency employee could have been engaged to drive the truck if the Applicant was placed in such a position. 108Apart from Team Leader functions, the Applicant could have been usefully engaged on duties within the Cleansing Unit or performed duties in the library - an option which was being considered by Ms Lobo and which was never forthcoming for undisclosed reasons. 109In conclusion, Mr Rochfort submitted that the Applicant's termination had no basis in fact, he was not provided with an opportunity to make out a defence or to provide an explanation or justification for his continued employment. Warning of unsatisfactory performance... 110Mr Rochfort pointed out that the Applicant was dismissed for his allegedly inability to perform the inherent requirements of the position - he was not dismissed over any conduct or performance issues. 111Mr Rochfort also pointed out that the applicant had performed in a number of roles and capacities and no complaint was made about his performance or conduct notwithstanding various physical limitations from time to time. He undertook all work he was directed to undertake. For example, immediately prior to Christmas 2012 the Applicant was performing useful work when, without any justifiable reason, Mr Cremasco directed him to go on leave. Later, the Applicant was provided with Grade 6 work within the Civil Unit albeit he was performing work within the Cleansing Unit. 112Mr Rochfort drew the attention of the Commission to the position summary for the Grade 6 position pointing out that an essential, if not inherent, requirement of the position was the ability to manage a team but not to drive or lift heavy items. 113It was pointed out that the Applicant performed most of the cleansing duties without any restriction. In fact, the Respondent's witness, Mr Jackson, described those duties as being of "low physical impact". 114Once again, Mr Rochfort referred to the fact that Council had been giving consideration to a position in the library and nothing more had been said about that. 115In conclusion, Mr Rochford referred to the obligations on the Council, not just Messrs Cremasco and Jackson, pursuant to the provisions of s 49 of the Workplace Injury and Management and Workers' Compensation Act (1988), to provide a totally or partially injured worker with "suitable work" if that worker was able to return to work either on a full-time or part-time basis. It was submitted that there was ample work within the Council and such work had been provided to other employees whose abilities to perform their work were restricted for one reason or another from time to time. Nature of duties immediately before the dismissal... 116Mr Rochfort submitted that it was futile for the Respondent to argue that there was no position the Applicant could easily be employed in given that he was going to recover his licence in the foreseeable future and given that, although he was performing varying duties, they included a duty which fell within the parameters of both the Grade 3 and Grade 6 positions. 117Mr Rochfort speculated as to the real motive for the dismissal of the Applicant. Clearly Council was prepared to give the Applicant a go because he was employed for a period in excess of four months after losing his licence before matters were brought to a finality. Whether or not the applicant requested reinstatement or re-employment 118Mr Rochfort acknowledged that the Applicant had not sought reinstatement or re-employment by Council but pointed out that the response had to be considered in the context of the lack of procedural fairness afforded to the Applicant. 119It was also acknowledged that while he was offered the opportunity to have a support person in attendance, it was nothing more than a disingenuous offer and there was no real opportunity for Mr Brown to engage a support person and his request to tape record the meeting was denied. 120It was pointed out that the decision to dismiss the Applicant had already been made as he was handed a pre-prepared letter at the meeting on 6 May 2013 and given 24 hours to respond to the contents - hardly an opportunity to put a case for his continuing employment. 121It was also pointed out that when the Applicant turned up for the meeting on 10 May, 2013, he had come prepared to discuss his "on going employment" with no apprehension of termination and therefore not prepared to put a case for his reinstatement or re-employment. The evidence indicated that the meeting was over in a flash with no opportunity for Mr Brown to seek reinstatement or re-employment or to argue for the retention of employment with Council. No procedural fairness was afforded to the Applicant, no opportunity was given to him to be heard in his own interest: Wiseman v Borneham (1971 AC 297 at 310). On that basis, it was summarised, his termination was harsh, unreasonable and unjust. Other Relevant Matters 122Mr Rochfort submitted that the evidence of the respective witnesses in the matter and their evidence regarding issues which may have impacted on their respective decisions were matters that were relevant for consideration by the Commission in determining the Applicant's claim. 123Mr Rochfort went on to summarise the evidence and personal circumstances of the Applicant, including his achievements whilst at Council and his willingness to undertake tasks notwithstanding a certain pain threshold. 124In relation to Mr Cremasco and Ms Lobo, it was contended that they had told an untruth by stating that the Applicant told them he was charged for a second offence of high range drink driving. That was clearly not the case and the Applicant would not have told them that. The Applicant had been charged for refusal to undertake a breath analysis in the car park of a Hotel. That untruth had a prejudicial effect on Ms Lobo's overall decision. It was noted that Mr Johnson simply stated that the Applicant lost his driver's licence. 125Mr Rochfort submitted that although Mr Cremasco's demeanour when giving his evidence was one of confidence, it should not be translated as an indication of the veracity of his evidence. He displayed an arrogance associated with one who has been down this path previously. It was pointed out that care should be taken when assessing his role in the termination given his overall conduct towards the Applicant, possibly explained by the fact that the Applicant had made a protected disclosure complaint against Mr Cremasco alleging bullying and harassment. 126In contrast, it was understandable that the Applicant would be nervous when giving evidence given that he was in that situation for the first time. 127Ms Dickson gave evidence that she had discussed the Applicant's protected disclosure statement with Mr Morris Doria, Council's General Counsel, who, interestingly, was not called to give evidence in the proceedings. It was suggested that the evidence indicated that Mr Doria had not complied with his obligations to: (1)Promptly deal with complaints of bullying or harassing behaviour in a sensitive and unbiased manner and resolve them with the assistance of the appropriate person(s); (2)Do not ignore witnessed or rumoured incidents of workplace bullying; (3)Ensure of any actual or alleged incidents are addressed appropriately". 128Mr Rochfort speculated that it was more likely than not that Mr Doria did speak to Mr Cremasco about the complaint and that caused Mr Cremasco to be resentful of Mr Brown and act as he did while exercising underlying prejudice against Mr Brown such as: - not giving driving duties to the Applicant when certified fit to drive "up to half an hour" per day and most jobs within Council involved driving 10-20 each way; - abruptly directing the Applicant to take leave 7 days prior to Christmas 2012 when usefully engaged in performing work in the Cleansing Unit which did not shut down over Christmas causing him to lose 11 days' paid work; - the dispute as to whether the Applicant's signature was forged by Mr Cremasco in the leave application form allegedly signed by the Applicant on 20 December 2012. The question was asked as to why the Applicant would, according to Mr Cremasco, give him an authority to complete the leave application form for him if he was present at work on that same day? - directing the Applicant, despite his protestations, to take long service leave on 5 March 2013 contrary to the provisions of Long Service Leave Act 1955 which requires that leave in advance may only be taken by agreement of the parties; and - the brusqueness with which Mr Cremasco handled the actual termination, paying mere lip service to procedural fairness; 129Mr Rochford pointed out that there was no evidence to collaborate Ms Dickson's statement that the Applicant had been uncooperative as she had not been involved in any discussions with him and therefore she was providing evidence of anecdotal advice to her from Ms Lobo. Therefore, it was concluded, Ms Dickson did not make her own inquiries about the Applicant. Rather, her whole perception of the Applicant was tainted by Ms Lobo's view of him as recalcitrant in refusing to undertake rehabilitation. In summary, Ms Dickson's evidence confirmed that: - the Applicant was never made aware of the option to seek leave without pay during the period of the loss of his licence; - the leave of absence option had been available to other employees in the past; - the untruth about the nature of the charge was picked up by Ms Dickson and became a reason for not expecting Council to provide the Applicant with suitable alternative duties and may have affected the contribution she had, if any, to the Council's decision to terminate the Applicant; - there was no evidence that the decision makers took into account the Applicant's personnel record in arriving at its decision to terminate him; - Council had no record of any former complaint made by Mr Brown in relation to bullying and harassment by Mr Cremasco which was clearly untrue as Ms Lobo was aware of such complaint; and - Council was unable to provide any evidence that the Applicant had ever been provided with or seen his PD or advised of what the inherent requirements of his job were. 130Mr Rochfort pointed out Mr Brown was engaged on duties provided by Mr Johnson when he was directed by Mr Cremasco to take leave. His evidence was summarised as follows: - Mr Johnson stated, during cross-examination, that he could no longer provide the Applicant with suitable alternative duties because he had a full complement of staff. Yet there was no evidence before the Commission of any communication from Mr Johnson to Mr Cremasco to advise that suitable alternative duties were no longer available. When the Applicant was directed back to work by Ms Lobo on 28 January 2013 and told to return to work, miraculously Mr Johnson found that there was ability for him to provide the Applicant with a range of tasks; - He described the steps taken to manage employees who had lost their driver's licences. Mr Rochfort pointed out that Mr Johnson was unable to say whether the Applicant had been invited, as per step 3 of that process, to absorb all forms of paid leave, or offered leave without pay until he could regain his licence, or work elsewhere within the Council; - he wrongful belief he held that the Applicant had been charged with high range PCA would have weighed heavily on the thinking he adopted and it was unclear whether or not he played any part in the decision to terminate the Applicant; and - Not all employees who lost their driver's licence for more than 12 months were terminated; 131In relation to Ms Lobo, Mr Rochfort pointed out that Mr Ross could have given the same evidence as her immediate Manager and more as he had also been instrumental in the termination process. In any event, her statement was summarised as follows: - Ms Lobo was urging the applicant to change his physiotherapy provider to the Kyzen Group. - the applicant's doctor advised against the applicant changing his physiotherapist at that time; - the applicant had an available five referrals for physiotherapy which would be met by Medicare. His doctor advised him not to use up those referrals with Kyzen Group. - the applicant contacted his physiotherapist, Mr Duong, to make arrangements for further physiotherapy utilising those five referrals; - the applicant advised Ms Lobo he was prepared to consult with the Kyzen Group provided that council was willing to pay for those consultations as he was not prepared to use up referrals which would be covered by Medicare. She took that as rejection by the applicant to continue his rehabilitation and to consult with the Kyzen Group; - Ms Lobo informed the applicant that "Council would now need to re-assess its position in relation to Mr Brown's return to work". That attitude was adopted by Ms Lobo whilst clearly under the misapprehension that the applicant was somehow refusing to comply with the return to work program and declined to consult with the Kyzen Group when that clearly was not the case; - She did not give a reason why the opportunity for the Applicant to work in the library was closed off when another employee had previously been employed there for more than a year; - the statement implied that it was not the job in the library that was no longer available but that "he" could no longer be accommodated; and - she perceived the Applicant as quite aggressive and rude and conducted himself "unprofessionally" when, in actual fact, the evidence demonstrated his overall conduct to be timid and compliant. 132In conclusion, the Applicant was seeking a finding that the dismissal was harsh, unjust and unreasonable. 133Mr Easton submitted that the Applicant carried the onus to establish the unfairness of his dismissal. The case fell short when the matter was considered from both the broader perspective and the minutiae and the Applicant's evidence cannot be accepted unless verified by credible, contemporaneous materials. 134Mr Easton pointed out that the Council had, despite the loss of licence and denial of the workers' compensation claims, made positive attempts to continue the process of rehabilitation and facilitating a return to pre-injury duties. 135The Applicant, in early February 2013, had a medical assessment which returned a relatively positive assessment of his prospects of recovery provided he co-operated with the program. By March 2013, the alternative suitable duties were no longer available. By April 2013, the Applicant was no longer making his own private attempts to rehabilitate himself. 136Ms Lobo attempted, on her own volition, to secure ongoing treatment for the Applicant and was successful in identifying what was then the EPC program. Mr Brown took up the assistance available from that program. 137The Respondent provided the Applicant with a written proposal in which it offered to have the Applicant medically assessed at its expense followed by ongoing rehabilitation and co-operation from a physiotherapist organised by Council out of concern for the level of co-operation from his own physiotherapist. The Applicant declined the proposal. 138Council was left with having to find a position for the Applicant for the next seven months (May 2013-January 2014) which did not require him to drive when faced with a situation where the Applicant was not co-operating with its attempts to rehabilitate him. 139Mr Easton argued that the lack of procedural fairness argument was not made out considering the conversations, activities and correspondence between the parties in the period from March - May 2013. In those circumstances, the Council quite reasonably and fairly terminated the employment of the Applicant. 140Mr Easton responded as follows in relation to Mr Rochfort's submissions, (1) There was absolutely no evidence before the Commission that the workers' compensation claim was subject to review. In fact, the evidence indicated that the Applicant was not consulting any Solicitor at all as at May 2013. (2) The letter inviting the Applicant to the meeting on 10 May invited him to have a representative attend with him. There was no direct evidence from the Applicant as to what he did or did not consider prior to attending the meeting alone; (3) It was incorrect to state that the Applicant was provided with four months of work after he lost his licence. It was about 4-6 weeks work that was provided. He did not work after 5 March 2013. (4) There was nothing sinister as to why Council did not pursue the protected disclosure made by the Applicant. Mr Brown, in his second statement, explained that Mr Doria told him that he needed to append his name to the complaint. The Applicant said he was not prepared to do that and the complaint stopped there: "At no time did I terminate the process, but I was simply too anxious to have my name used in relation to any investigation and would not agree to that being done. Consequently the council to the best of my belief took no further formal action in relation to my complaint and there was no proper investigation made." (5) It was a nonsense submission to make from the bar table suggesting that the Applicant did not consume alcohol on the night in question. If the Applicant was indeed putting that to the Commission then it was available to him to put that in his statements or give evidence to that effect. He did not. Mr Cremasco was only repeating what the Applicant told him. Nevertheless, it carried the same penalty as driving under the influence of alcohol because obviously there was an assumption that if one was not prepared to submit oneself for a breath test then one cannot escape the consequences. 6. Mr Cremasco was available for cross-examination. Yet the inferences made about him during submissions on behalf of the Applicant were not put to him during cross-examination thereby denying the Respondent natural justice. One particular case in point was the submission made that Mr Doria spoke to Mr Cremasco about the protected disclosure. It should have been squarely put to Mr Cremasco during cross-examination. (7) There was absolutely no evidence from Mr Brown that he emphatically opposed the taking of leave at Christmas 2012. (8) Ms Dickson provided first hand evidence of hearing the conversation between Mr Brown and Ms Lobo during which Mr Brown was being unco-operative and offensive. She gave evidence that her desk was in close proximity to Ms Lobo's desk. (9) Procedural fairness dictated that Mr Rochfort should have put to the Respondent's relevant witnesses, during cross-examination, of the possibility that: - their perception of the Applicant was coloured by Ms Lobo's account of his unco-operativeness; - by the supposed mistake about the nature of the offence; - the lack of available work; - the miraculous appearance of available work; and - Council was being selective as to whether work was or was not available for the Applicant Evidence cannot be given from the bar table of matters not raised during cross-examination. (10) Mr Easton pointed out that the Applicant was not objecting to using up his five physiotherapist appointments under the EPC. That submission was contrary to the evidence he gave in his statement in reply to Ms Lobo in which he advised that he rejected the proposal because Council was not prepared to meet the costs: "I'm happy to do that, that is go to the Kyzen group but seeing the consultations are not covered by Medicare and I do not consider it right that I continue to charge the attendances to Medicare. Also the consultations are no longer covered by WorkCover who is going to pay for them and is council prepared to meet costs". (11) There was no evidence before the Commission that another employee did a year's suitable duties in the library. (12) There was no Jones v Dunkell inference to be drawn from the fact that Mr Ross was not called to give evidence about the termination. The evidence does not reflect that Mr Ross was actively involved in the proceedings and processes that led to the termination. On the Applicant's evidence, Mr Ross attended the meetings on 30 April and 10 May and he wrote the letter of 6 May. 141The Applicant was employed as a driver/labourer. He was employed to drive a 4 tonne medium rigid vehicle. He agreed, during cross-examination, that he spent at least thirty per cent of his time driving. He agreed, and the evidence was clear, that he worked in a two person team in which he was not the leading hand or the supervisor and that there were duties that he was required to do apart from the thirty per cent of the time driving, including handling materials such as length of wood between 3 metres and 6 metres long, hammering in wooden pegs that are between 600 and 1200 millimetres long, swinging a sledge hammer with at least a four and half kilo head plus shaft and also operating a concreting chute to move the concrete to the area that they formed up - all central aspects of his duties. 142Mr Easton rejected the submission that just because the Applicant was able to undertake the other duties listed in the PD, that he was able to fulfil the majority of the duties. That was against all of the evidence in the matter and it had a fundamental logical shortfall within it - that was that the Applicant knew what he was employed to do. Through 2012 he could not do the labouring aspects of what he was employed to do and, by 2013, he could not do the driving aspects of it either. 143Mr Easton pointed out that the Applicant made some weak comments in his first statement as to not being aware of the requirements of the position which, during cross-examination, he clarified to mean that he just was not aware of what was written on the job description document. Clearly he gave evidence about what his duties were. It was only, on his evidence, ignorance as to the existence of the written document, not ignorance as to what he was actually employed to do. Mr Brown agreed with the medical assessment, conducted as at the end of May 2013, after he has been dismissed, that he could not do the concreting work he was employed to do as a driver/labour and, of course, he could not undertake the driving part either. 144Mr Easton argued that, by 2013, the Applicant was unable to undertake the inherent requirements of his position - labouring and driving. It did not matter whether he had the capacity to operate a lollipop. 145Mr Easton took the Commission through the argument as to why the submission that the Applicant worked through the pain threshold ought to be rejected. I accept the logic behind that argument. 146Mr Easton described as unbelievable and illustrative of the unreliability of the evidence of the Applicant when he stated that he worked for 2.5 months on his original duties, continued to work through the pain threshold in order to apparently achieve a promotion initially and then to save Council a workers' compensation premium when, in the next breath, he provided a scathing assessment of all management of the Council indicating that he did not trust members of management to conduct a meeting with him without providing a set agenda first. It was pointed out that if the Applicant's evidence was accepted, then the Commission would be accepting the truth of him perpetuating a falsity for his own advancement - he had attempted to achieve a promotion under an incorrect doctor's certificate and then he had attempted to continue those falsities in a different way. 147While the workers' compensation claims were being processed, the Applicant was provided, on his return in September 2012, with suitable duties initially within the civil unit and then the stores. The duties that he did perform were a compilation of jobs that were temporary jobs only. Mr Easton referred to the evidence of Mr Johnson in which he indicated that he could accommodate persons within his unit provided it did not becoming adversely affected with people being stuck there if they were not needed. He explained that Mr Brown's role was drawn from roles within the Cleansing Unit to form a temporary body of work because there was not a full role for him in that unit. 148Mr Easton then took the Commission through the evidence of Mr Thompson pointing out that Council was in Christmas mode as at December 2012. He gave evidence that agency staff were used as a costeffective means for short term fluctuating levels. None had worked for more than six months. Nevertheless agency staff were employed and needed to undertake the full range of duties and to have a drivers' licence. the Applicant could not undertake the full range of duties as at Christmas 2012 and by 2013 did not have a driver's licence. Council was under no obligation, as from 14 December, 2012, to provide Mr Brown with suitable duties. He was unfit for his pre-injury duties through to 31 January, he was not covered by workers compensation and it was three or four days before Christmas. He was provided with a combination of leave days and paid for the public holidays which took him to the end of the certificate period. It was submitted that Mr Cremasco did the Applicant a favour and made no sense at all for the Applicant to allege that it was bullying on the part of Mr Cremasco. 149Mr Easton took the Commission through the evidence of each of the Respondent's witnesses. 150Mr Easton submitted that the evidence from Mr Brown that he thought the meeting on 10 May was for the Council to tell him that he would be going into the library needed to completely rejected even on his own evidence. Mr Brown says he spoke to Ms Lobo about them conditionally offering library work and the condition that they offered the work was on the condition that he agreed to the Kyzen program. He rejected that condition. So when he rejected the proposal he knew that he was also rejecting the option of working in the library. REMEDY 151Mr Rochfort pointed out that the primary remedy would be reinstatement or, at the very least, re-employment. Nevertheless, the presence of Mr Cremasco would make the workplace untenable for him for a number of reasons. Firstly, the Applicant intended to pursue the bullying and harassment claim against Mr Cremasco; secondly, the Council failed to provide the Applicant with a safe and health workplace pursuant to the Federal Work Health and Safety Act 2011 and, thirdly, there would be ongoing friction between the Applicant and Mr Cremasco. 152Mr Rochfort concluded that the only alternative remedy available was compensation and a suitable statement of service which would enable the Applicant to move on with his life. 153The Applicant was paid five weeks' pay in lieu of notice on termination on 10 May 2013. He had already been on two weeks' suspension without pay at that time. 154The Applicant had not been able to obtain alternative employment since his termination and was sustaining himself and his family on Centrelink payments. 155The Commission was asked to take into account the delay in finalising the proceedings as a result of Ms Lobo's confinement. 156The Applicant sought the following Orders: (i)An Order of six month's compensation to the paid to the Applicant at his ordinary rate of pay at the time of dismissal. (ii)An Order for the payment of the two weeks pay. The Applicant received five weeks' notice but was stood down for three weeks and considered himself short changed in his payment in lieu of his working in the notice period. (iii)An Order that superannuation contributions be made, calculated on the amount attributable to the notice and commensurate payments be made for annual leave and long service leave, over the total period for which compensation was ordered. (iv)An Order for the provision of a Statement of Service to the applicant endorsing the positive aspects of his employment, including the awards made to him in recognition of his contributions, the overall efficiency and productivity of the workplace, and stating the circumstances in which his employment was terminated, not being by way of termination, by way of dismissal. 157Mr Easton reminded the Commission of the statutory limit on the amount of remuneration that may be awarded as compensation. 158Mr Easton submitted that no compensation was payable in the circumstances, however, if a relevant unfairness was found in the matter, then only a small amount of compensation ought to be awarded bearing in mind that the fact that the applicant was out of a job was in a significant way attributable to his own conduct and the decisions he had made along the way. CONSIDERATION 159I have considered in detail the statements, oral evidence and cross-examination of the witnesses in these proceedings, some of which have been detailed above. 160I have considered the submissions made on behalf of the parties. I accept the arguments made by Mr Easton, which have been detailed above, with respect to submissions made on behalf of the Applicant which have not been borne out by the evidence nor were they put to the Respondent's witnesses in order to accept or deny. 161The Position Description described the Applicant's position as that of a "Team Driver - Civil" within the Civil Works, City Operations Unit. The Position Summary describes the role as "a driver for a concrete/drainage team". The Key Accountabilities of the role are stated to include, but are not limited to, driving a 2 axle truck with a current MR drivers licence and the ability to tow trailers. 162I note the response of the Applicant during cross-examination in relation to his duties. I also note the number of years he has worked at the Council and therefore do not accept that he was not aware of the inherent requirements of his position. 163The Applicant was labouring under medical restrictions which affected the labouring aspects of his duties and, to a certain extent, his driving capabilities. His workers' compensation claims were rejected by the GIO. There was no legal requirement for the Respondent to provide alternative suitable duties. One has to distinguish between a legal requirement and a moral requirement given the unblemished record of the Applicant and the duration of his service. The Applicant lost his driver's licence for a period of twelve months for refusal to undertake a breath analysis. 164Driving was an inherent part of his duties. Nevertheless, Council accommodated the Applicant by the provision of alternate suitable duties within the Cleansing Department. Alternative suitable duties and meaningful work continued to be provided to the applicant well after Council ceased to be statutorily required to do so under s 49 of the Workplace Injury Management and Workers Compensation Act 1998. 165On 29 April 2013, the Council, upon discovering that the Applicant had ceased attending treatment or complying with home based exercises since his workers' compensation claims were declined, and in the absence of any change in his fitness for duty and any contrary advice from his treating physiotherapist, devised a treatment intervention on the suggestion of Quality Occupational Health who previously recommended a work conditioning program to assist the Applicant's recovery and return to normal duties. 166The Applicant refused to participate in that program. I note and accept the submissions of Mr Easton in relation to the conflict between the submissions made on behalf of the Applicant and the evidence he gave in relation to that rejection. I believe that his rejection of that proposal also affected the management team in that, rather than offer him leave without pay, went directly to the option of dismissal as he did not seem to want to help himself. 167It was the Applicant's choice not to respond in writing to the letter of 6 May 2013. 168I do not accept that the Applicant was taken by surprise in relation to the meeting on 10 May 2013. It was his choice not to have a representative at that meeting. It was therefore preferable that management not engage in any other discussions with the Applicant save provide him with the termination letter. 169Nevertheless, having noted all of the above, it is important to note that the Applicant had an unblemished work record with the Council throughout his period of employment. 170There was no evidence to refute the fact that he received awards for his achievements with Council. 171There was evidence that the Council had accommodated other employees, and indeed the Applicant, for a period of time during instances of loss of licences and that is to be commended and encouraged. I believe that it is a practice of Council and not a Policy. 172There was a misconception that the Applicant had been charged with and convicted on the offence of high range driving under the influence of alcohol (his second) when, in actual fact, he was charged with and convicted of declining a blood alcohol test. It is my view that the misconception coloured the view of some of the members of the Management team dealing with the Applicant. Nevertheless, there was contribution to that misunderstanding by the Applicant in that it could have been cleared up by putting the advice in writing to the Respondent, as requested. 173Having said all that, it is my view that the dismissal was unfair in that the Applicant could have been offered leave without pay for the period during which he lost his licence. 174I accept that Mr Brown is to a significant degree responsible for the outcome that was brought about in this case. However, I believe that Council staff could have set aside the perceptions I believe they had of the conviction against him and ought not to have given up on him because of his rejection of the proposal for his rehabilitation and offered him leave of absence without pay until he obtained his licence back. 175I urge Council to provide the Applicant with a Certificate of Service setting out his full name, the positions he held at Council, the duties attached to those positions and provide a contact person for prospective employers to call if they require a verbal confirmation of its contents. ORDERS 176Parramatta City Council is to pay to the Applicant a sum equivalent to four weeks' pay. 177Payment is to be made within 14 days of today's date. 178Matter No IRC 365 of 2013 is hereby concluded. I TABBAA AM 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: 24 January 2014