1

[Extract from Queensland Government Industrial Gazette,

dated 20 February, 2009, Vol. 190, No. 7, pages 132-147]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 74 - application for reinstatement

The Australian Workers' Union of Employees, Queensland (for Ronald Bowman)

AND LockyerValley Regional Council (TD/2008/61)

COMMISSIONER ASBURY / 12 February 2009

Application for reinstatement - Dismissal found to be harsh, unjust and unreasonable - Dismissal found not to be for invalid reason - Reinstatement ordered.

DECISION

1.Overview

This is an application by The Australian Workers' Union of Employees, Queensland (AWU), under s. 74 of the Industrial Relations Act 1999 (the Act), on behalf of Mr Ronald Bowman. The application seeks the reinstatement of Mr Bowman to the position of Team Member (Engineering Services Unit) with the Lockyer Valley Regional Council (the Council). In support of the application, the AWU contends that Mr Bowman was employed with the Council for eight years and had been a diligent and industrious employee. In the period of his employment Mr Bowman suffered a number of work related injuries. The AWU contends that the Council dismissed Mr Bowman on 8 April 2008, after unreasonably refusing to provide alternative duties for Mr Bowman.

The AWU also contends that the dismissal was for an invalid reason pursuant to sections 73(2)(b) and (c) of the Act, because the actions of the Council in failing to take reasonable steps to accommodate Mr Bowman's physical limitations and the resulting decision to terminate his employment, were motivated by Mr Bowman having acted in the capacity of an employees' representative in recent industrial relations matters involving the Council, and participating in Union activities in his role as a delegate of the AWU.

For the Council it is contended that the dismissal was not unfair or for an invalid reason. According to the Council, Mr Bowman has a long history of injury. Mr Bowman was unable to perform the light duties he had been assigned by the Council, and there were no lighter duties available. In the face of conflicting medical advice about Mr Bowman's capabilities, Council required Mr Bowman to undertake a Functional Capacity Evaluation conducted by an occupational therapist. On the basis of the outcome of that evaluation and on medical advice from its own expert advisers, Council had determined that Mr Bowman was unable to perform the inherent requirements of his role. As there was no reasonable alternative role for Mr Bowman, the Council had no option but to terminate Mr Bowman's employment.

2.Issues for determination

By virtue of s. 73(1)(a) of the Act, a dismissal is unfair if it is harsh, unjust or unreasonable. In deciding whether a dismissal is unfair, the Commission is required by s. 77 of the Act to consider:

(a)whether the employee was notified of the reason for the dismissal; and

(b)whether the dismissal related to -

(i)the operational requirements of the employer's undertaking, establishment or service; or

(ii)the employee's conduct, capacity or performance; and

(c)if the dismissal relates to the employee's conduct, capacity or performance -

(i)whether the employee had been warned about the conduct, capacity or performance; or

(ii)whether the employee was given an opportunity to respond to the allegations about the conduct, capacity or performance.

(d)any other matters the commission considers relevant.

Other matters that may be relevant include:

  • The consequences of the dismissal for the employee personally and in an economic sense;
  • Whether the employee was guilty of misconduct and the gravity of any misconduct;
  • Whether the penalty of dismissal was proportionate to the gravity of any misconduct; or
  • Whether the decision to dismiss the employee was based on inferences that could reasonably have been drawn from the material and information reasonably available to the employer: (Stewart v University of Melbourne U No 30073 of 1999 Print S2535 per Ross VP;Bostik (Aust) v Georgevski (No 1) (1992) 36 FCR 20 at 28 per Sheppard and Heerey JJ.

An unfair dismissal may involve one or more of these aspects.

Section 73(1)(b) provides that a dismissal is also unfair if it is for an invalid reason. Section 73(2) provides inter alia that each of the following constitute invalid reasons:

"…

(b)seeking office as, or acting or having acted in the capacity of an employees' representative;

(c)membership of an employee organisation or participation in the organisation's activities outside working hours, or with the employer's consent, during working hours;

…".

The issues for determination in the present case are whether Mr Bowman's dismissal was unfair because it was harsh, unjust or unreasonable and/or the dismissal was for an invalid reason.

3.Evidence

Evidence for the AWU was given by:

  • Mr Ronald Bowman;
  • Mr Graham Eavans - Co-worker and delegate for the Transport Workers' Union of Australia, Queensland Branch (TWU);
  • Ms Tracey Sharpe - District Secretary for the AWU;
  • Mr Troy Spence - Organiser for the AWU; and
  • Doctor Jessica Legrand- Mr Bowman's General Practitioner.

Evidence on behalf of the Council was given by:

  • Mr Jim Crawford, Works Overseer;
  • Mr Derek Sellers, Director Finance and Information Services/ Deputy Chief Executive Officer;
  • Mr Colin Alfred O'Connor, Chief Executive Officer, LockyerValley Regional Council;
  • Ms Nichola Martyr, Occupational Therapist, The Health Advantage; and
  • Doctor Vern Madden, Medical Practitioner, owner and operator of The Health Advantage.

I have considered all of the evidence, and set out below that which is relevant to the determination of the issues which arise in this case.

4.Evidence

4.1Mr Bowman's injuries and limitations on work he could perform

Given that this issue is critical to the matters in dispute in these proceedings, I have set out the evidence about Mr Bowman's injuries and the limitations on work he can perform in some detail. During the period of his employment with the Council, Mr Bowman suffered a number of work related injuries. In February 2005 Mr Bowman was diagnosed with a hernia. This injury was accepted by WorkCover and Mr Bowman underwent surgery to repair the hernia on 8 August 2005, returning to work on 7 October 2005. In November 2006 Mr Bowman injured his knee in the course of his employment. As a result of these injuries, and in particular the hernia, Mr Bowman was subject to a series of medical certificates, which provided for limitations on the range of duties he could perform. The periods of these certificates and the prescribed limitations are set out in an affidavit sworn by Mr Bowman in these proceedings (Exhibit1) as follows:

  • 11 July to 12 August 2005 - no lifting weights greater than 5 kg and no pushing and pulling;
  • 7 October to 31 October 2005 - no lifting weights greater than 5 kg;
  • 24 April to 31 December 2006 - no lifting or carrying weights greater than 10 kg and no repeated bending, twisting, squatting, pushing and pulling;
  • 10 November to 17 November 2006 - restricted duties;
  • 26 April to 30 May 2007 - no frequent bending and no heavy lifting;
  • 21 June to 21 July 2007 - no lifting weights greater than 20 kg (Exhibit 7).

In July 2007, WorkCover reopened Mr Bowman's case for further assessment. Mr Bowman said that during this time, no one from Council approached him regarding his health or any matter.

In late 2007, Doctor Legrand undertook a series of tests to try to ascertain the reasons for Mr Bowman's pain. On January 15 and February 12 2008, Mr Bowman saw Doctor Douglas, Rehabilitation Occupational Health Physician and Specialist at LaidleyHospital. As a result of extensive testing, it was discovered that Mr Bowman had damage to the anterior abdominal wall and that this was aggravated by continuous heavy work. Doctor Douglas advised Mr Bowman to review the way that he lifted, and manage the pain and discomfort.

On 14 February 2008, Doctor Douglas issued a medical report stating that Mr Bowman had a history of abdominal pain and that since surgery to repair a hernia in August 2005, had been further troubled by anterior abdominal and inguinal pain on the right. The report recommends that Mr Bowman avoid certain physical activities as the inguinal pain is associated with the strain of the anterior abdominal wall. Doctor Douglas recommended that Mr Bowman's duties be limited to the extent that he be required to lift no more than 15 kilograms at any one time and that extended periods of lifting weights of up to 15 kilograms be limited. It was also recommended that Mr Bowman avoid rotational strain caused by controlling manual machines such as post hole diggers. Doctor Douglas stated that with these limitations, Mr Bowman is fit to carry out his previous duties: (Exhibit 8).

On 19 February 2008 Mr Bowman saw Doctor Legrand, who issued a medical certificate stating that Mr Bowman has a permanent injury to his stomach muscle and is no longer fit to do work that involves:

1.Lifting more than 15 kilograms weight at a time;

2.Rotational movement of his body eg. controlling manual machines such as a post hole digger; and

3.Repeated bending over and squatting, pushing and pulling heavy objects.

These limitations are said to be permanent and indefinite: (Exhibit 9).

On 4 March 2008, Mr Bowman attended an appointment, at the request of the Council, with Doctor Madden from Health Advantage. Health Advantage is a multidisciplinary medical and allied health practice owned and operated by Doctor Madden, that delivers occupational health and rehabilitation services to companies, including pre-employment medicals, fitness for work assessments and rehabilitation of acute and chronic injuries. Mr Bowman was referred to Doctor Madden by Mr Shane Browne, the Manager Corporate Services for the Council. Mr Browne sought Doctor Madden's opinion regarding Mr Bowman's ability to perform his role. Mr Browne provided Doctor Madden with a position description for a Team Member (Engineering Services Unit): (Exhibit 6).

Doctor Madden set out his opinion in relation to Mr Bowman's ability to perform his work role, in a letter to Mr Browne dated 4 March 2008: (Exhibit 22 Annexure "VM2"). That opinion is said to be based on information which included the report of Doctor Douglas dated 14 February 2008 (Exhibit 8), and the report of Doctor Legrand dated 19 February 2008 (Exhibit 9). In his report dated 4 March 2008, Doctor Madden concluded that it is medically probable that Mr Bowman will have ongoing pain and be required to restrict his activities as outlined by Doctor Douglas and Doctor Legrand. Doctor Madden indicated that he had read the list of duties of Team Member (Engineering Services Unit), and noted that Mr Bowman would be required to lift cement bags weighing 20 kilograms and that there is bending and lifting involved in digging holes for signs, guide posts, pot hole patching, fitting pipes, construction of footpaths - particularly when concreting foot paths - repairing storm damage, weed control and line marking. Doctor Madden also noted that the position description required use of vibratory equipment, including jackhammer, compactor, whipper snipper, vibrating plates and chain saw. It was concluded that Mr Bowman is not fit to continue performing all the duties of his substantive position. It was further noted that in order for Mr Bowman to work in his substantive position, it would require that another person be found to perform lifting above 15 kilograms and to perform repetitive lifting, bending, pushing, pulling and to operate vibrator and rotational machinery.

On 6 March 2008, Doctor Legrand issued a revised medical certificate stating that Mr Bowman could lift no more than 20 kilograms at a time (Exhibit 10). Other limitations set out in the original certificate (Exhibit 9) were unchanged. Doctor Legrandadded that Mr Bowman could perform the work of signage repairs, truck driving, traffic control and general maintenance duties: (Exhibit 10). In her evidence to the Queensland Industrial Relations Commission (Commission), Doctor Legrand reiterated the contents of the certificate issued on 6 March 2008. Doctor Legrand also said that Mr Bowman has occasional abdominal pain which only appears after he lifts heavy objects.

Under cross-examination, Doctor Legrand said that the second certificate (Exhibit 10) was written after long discussion with Mr Bowman. In that discussion, Mr Bowman had indicated his desire to continue to work for the Council until his planned retirement in three years. Mr Bowman had seen opportunities to be shifted to slightly lighter duties, to enable him to continue to work for the Council. Doctor Legrand issued the revised certificate to assist Mr Bowman to transition to slightly lighter duties. When asked about why she had suddenly changed the limitations set out in the first certificate issued on 19 January 2008 (Exhibit 9), Doctor Legrand said that when Mr Bowman had presented the first certificate his employment had been threatened, and Mr Bowman had considered that he might be able to endure more pain to continue his employment. According to Doctor Legrand, a doctor cannot feel the patient's pain, and is guided by the patient as to the limitations to be set out in certificates. In this regard, the patient is the best judge of what he or she can do or not, and how much stress it puts on them to do a job eight hours per day. Doctor Legrand agreed to "stretch" the weight limit in the certificate on this basis. Doctor Legrand was not aware that Mr Bowman had done anything different, such as being prescribed new medication or exercises, in the period between the issuing of the first and second certificates. Doctor Legrand said that she stood by the certificate issued on 6 March 2008 (Exhibit 10), and thought that Mr Bowman could be a very good employee if he could be relieved from really heavy jobs.

On 13 March 2008 Doctor Douglas issued a further report (Exhibit 11), modifying the recommendation contained in his earlier report of 14 February 2008(Exhibit 8) to the effect that Mr Bowman should be allowed to lift weights of up to 20 kilograms, but that duties involving extended periods of lifting of weight be extremely limited. Doctor Douglas also said that Mr Bowman should continue to avoid rotational strain such as controlling manual machines with high degrees of torque. With these limitations, Doctor Douglas believed that Mr Bowman was fit to return to his previous duties.

A Functional Capacity Evaluation was conducted by Ms Nichola Martyr on19 March 2008. Ms Martyr is a qualified Occupational Therapist and works for the Health Advantage on a part-time basis. Ms Martyr said in her evidence-in- chief that the evaluation established that Mr Bowman could safely lift 15 kilograms, but that it was not safe for Mr Bowman to lift above this limit. Ms Martyr also said that the findings were considered alongside Mr Bowman's position description as provided by the Council, and summarised the findings as follows:

  • Carrying more than 15 kilograms greater than 25 metres not recommended;
  • Repetitive lifting not recommended;
  • Fair fitness level;
  • Elevated blood pressure;
  • No limitations relating to pain.

Ms Martyr's Report is attached to the affidavit setting out her evidence: (Exhibit 21 "NM1). That Report contains additional detail to that set out in the affidavit and qualifies some of the points listed above. The copy of the Report attached to Ms Martyr's affidavit contains two dates. On the front page, the Report Date is indicated as 25 March 2008, while on the last page (page 7) it is stated that the date of the report is 14 October 2008. This apparent anomaly in the dating of the Report was not explained. However, Ms Martyr said under cross-examination that she wrote the Report on 25 March 2008, and in a letter to Mr Browne dated 28 March 2008, Doctor Madden refers to the Report and states that it is enclosed with that letter. I am satisfied that the date of Ms Martyr's Report is 25 March 2008.

The Report sets out the following relevant matters. Under the heading "Background Information/Purpose of Assessment", Ms Martyr states that in conducting the functional capacity assessment she is aware that Mr Bowman has opinions from Doctor Legrand and Doctor Douglas which indicate restrictions on: lifting 15 kilograms; repetitive bending, squatting, pushing and pulling; rotational movements; and extended periods of lifting weights up to 15 kilograms. Ms Martyr also indicates that Mr Bowman has been on work restrictions on/off since 2005, and his current workload comprises 70% of his time in signs which Mr Bowman states he is managing with no problems.

Under the heading "Current Symptoms/Pain" Ms Martyr records that Mr Bowman's blood pressure was elevated at the commencement of the test, and that Mr Bowman said that this may be due to stress that he had been experiencing over the past couple of months. It is also recorded that Mr Bowman stated that his pain is elicited during periods of heavy work over long periods, for example, concreting and laying of storm water pipes, and that he had not been performing these duties for some time. Further, it is recorded that Mr Bowman reported he has no pain when he is not doing heavy work and reported no pain before the assessment was conducted. Under the heading "Work" Ms Martyr summarises work duties taken from a position description provided by the employer and explained by Mr Bowman. The position description is Annexure "NM2" to Ms Martyr's affidavit (Exhibit 21) and is identical to the document Exhibit 6.

Under the heading "Test Performance" it is reported that Mr Bowman was assessed over a two hour period and that Mr Bowman's pain reports were 0/10 prior to, during and after the assessment, with 0 representing no pain. It is also reported that Mr Bowman has a fair level of aerobic fitness and that his heart rate increases correlated with the increased difficulty of tasks. Certain tests were ceased when Mr Bowman's heart rate increased to unsafe levels, including endurance lifting involving Mr Bowman lifting 15 kilograms from bench to bench as many times as he could. Further it is recorded that although these tests were seemingly difficult for Mr Bowman, he only rated his perceived exertion at 4/10 and this was consistent with his measure of oxygen consumption while performing these tasks. Under the heading "Summary of Assessed Functional Abilities" the following is set out: