Pavlov v TNT Australia Pty Ltd [2016] FWC 5085 (8 August 2016) [2016] FWC 5085 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal George Pavlov v TNT Australia Pty Ltd (U2016/5186) DEPUTY PRESIDENT BOOTH SYDNEY, 8 AUGUST 2016 Application for unfair dismissal remedy - valid reason - capacity. [1] In April 2015 George Pavlov felt pain in his left foot whilst he was at work. [2] He went to the doctor and had an X-ray of his left foot. The X-ray showed that he had early stage degenerative change in his first metatarsal joint – the joint connecting the tip of the big toe to the rest of the toe. [3] At the time he worked for TNT Australia Pty Ltd as a Pick Up and Delivery (PUD) driver out of the Enfield depot. He had been employed by TNT since 2006. [4] Over the next 8 months he wore a supportive boot whilst working on modified duties for a period of time; he had a workers’ compensation claim declined; he was stood down with pay and he undertook functional and medical assessments. [5] On 16 February 2016 TNT terminated Mr Pavlov’s employment, on the ground that he could not safely perform the inherent requirements of his job. Mr Pavlov says that he was unfairly dismissed by TNT. He believes that he was, and is, able to safely do his job. He asks the Fair Work Commission to reinstate him in his job. [6] Mr Pavlov was represented by Mr Arjonilla from the Transport Workers Union and TNT were represented Mr Marshall from Ai Group, TNT’s employer organisation. Mr Pavlov gave evidence on his own behalf. Evidence was given for TNT by Ms Saunders, National Injury Manager, Mr Zichy-Woinarski General Manager Workplace Risk and Mr Guinane Pick Up and Delivery Manager Enfield depot. [7] No expert medical evidence was given on behalf of Mr Pavlov or TNT. I have made my decision based on written documents including the expert medical report provided by the Occupational Physician relied upon by TNT, the medical opinion provided by Mr Pavlov’s treating General Practitioner and the oral evidence of Mr Pavlov, Ms Saunders, Mr Zichy-Woinarski and Mr Guinane. [8] The expert medical report provided by the Occupational Physician recommended permanent restrictions on the performance of Mr Pavlov’s work. On balance I am satisfied that it was not unreasonable for TNT to accept the recommendation of the Occupational Physician. I am satisfied that imposing the restrictions recommended would mean that Mr Pavlov was unable to perform the job of a PUD driver. For the reasons set out below I have decided that Mr Pavlov was not unfairly dismissed. Preliminary matters [9] Before I am able to consider whether Mr Pavlov was unfairly dismissed there are some initial matters that I must address arising from sections 396 and 385 of the Fair Work Act 2009 (the Act). [10] I am satisfied that Mr Pavlov made his application within the period required in subsection 394(2)(a) of the Act, that is, within 21 days after the dismissal took effect. [11] I am satisfied that Mr Pavlov is a person who was protected from unfair dismissal under section 382 of the Act. Mr Pavlov has completed a period of employment with TNT of at least the minimum employment period. The minimum employment period for an employer that is not a small business is 6 months. TNT is not a small business employer. Mr Pavlov also satisfies subsection 382(b). [12] As TNT is not a small business employer I do not have to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. [13] There is no suggestion that Mr Pavlov’s dismissal was a case of genuine redundancy. [14] Having considered subsections 396(a) to (d) of the Act I conclude that they present no impediment to me considering the merits of Mr Pavlov’s case. [15] Turning to section 385 of the Act, it is common ground between the parties that Mr Pavlov’s employment was terminated at the initiative of TNT. That is, in the terms of subsection 386(1) of the Act, he was dismissed. As already mentioned the Small Business Fair Dismissal Code does not apply and Mr Pavlov’s dismissal was not a case of genuine redundancy. [16] That being the case it remains for me to consider whether TNT’s dismissal of Mr Pavlov was harsh or unjust or unreasonable. Background facts [17] Mr Pavlov was a PUD Driver who generally drove an 8 tonne truck. [18] The typical daily activities of a PUD Driver include: a) Taking freight off a belt and stacking the freight at their loading bay; b) Loading and stacking their freight into their vehicle (including at ground level, waist height, shoulder height and above shoulder height); c) Driving their vehicle to effect customer deliveries. Each customer delivery requires the PUD Driver to exit their vehicle, enter the rear of the truck by climbing into the truck, unload carton(s) as required and walk from the truck to the required customer location (including walking up and down stairs, along pathways and footpaths, and navigating any other hazards that may exist at the customer’s location); d) Carrying out customer pickups. Each pickup requires the PUD Driver to transport freight from the required customer location to the vehicle and then load/stack the freight into the rear of the vehicle. This is generally done by climbing into the vehicle; e) Returning to the depot and unloading freight from the vehicle. [19] Mr Pavlov generally used a fork lift to load and unload his truck. He got in and out of the truck 30 to 40 times a day. He visited 20 to 30 customers a day. Use of a fork lift is not always possible depending on the customer. [20] On 15 April 2015 Mr Pavlov visited the doctor about pain in his foot. He had an X-ray. His X-ray results noted a clinical history of a stress fracture of his big toe and first metatarsal. [21] The findings were: “Findings: Increased sclerosis is demonstrated in the articular surfaces of the first MTP joint. There is mild degree of narrowing of the joint space. This represents early stage degenerative change. No fracture is demonstrated in the phalanges of great toe and the first metatarsal. The cortex of the shaft of second metatarsal shows significant thickening. This indicates chronic stress reaction. No evidence to indicate recent stress fracture. The rest of the bones of left foot demonstrate normal appearance and alignment. Prominent plantar calcaneal bone spur is noted. There is also a small bone fragment in the aspect anterior to the calcaneal spur. This suggests old injury with avulsion fracture. Dr Choong Wong MBBS FRANZCR” [22] Mr Pavlov was off work for two days after he saw the doctor. When he returned to work he was directed by TNT to attend a medical appointment with another doctor. This doctor provided him with a medical certificate for restricted duties and specifically, no truck driving. He was off work again until 23 April when he returned to work. He also made a workers’ compensation claim that was received by TNT on 23 April. From this time TNT provided modified duties and Mr Pavlov was wearing a supportive boot sometimes described as a CAM boot. He gave evidence that he did not experience pain while he was wearing a supportive boot, but did feel pain when examined by a doctor who bent his toes. [23] TNT declined his workers compensation claim on 10 June 2015. TNT is self-insured as a licence holder under the Comcare scheme established pursuant to the Safety, Rehabilitation and Compensation Act 1988 . After receiving a medico-legal report on Mr Pavlov it determined that he had not sustained an injury for which TNT was liable to pay compensation. The medico-legal report dated 4 June 2015 states in part: “2. What specific condition if any is suffered by the claimant? This man has osteoarthritic change in his great toe metatarsophalangeal joint on the left. He probably has it on the right. Great toe metatarsophalangeal joint arthritis affects about 80% of the population in both males and females. He does not have metatarsus primus varus which accentuates bunion formation. He is describing reproduction of his symptoms with extension of the metatarsophalangeal joint which is stretching his arthritic joint and if he were to have a shoe with very little bending in the sole, he would be able to resume his normal work. Steel capped shoes can be obtained. This is a degenerative condition affecting about 80% of the population and it is a very common form of arthritis. Most people do not have symptoms until their mid 50s but there are people with symptoms from this degenerative condition earlier than that. There are many people with arthritic change in the great toe metatarsophalangeal joint that are asymptomatic. I would have thought about 80% of the population who have that same arthritic condition do not have much in the way of problems from it from a pain and disability point of view, although women do not like the appearance of the arthritic great toes and often have them corrected for cosmetic reasons.” [24] After Mr Pavlov’s claim was denied TNT advised Mr Pavlov on 12 June that it was unable to continue to provide modified duties and that “ entitlements during your recovery will be as per the relevant industrial instrument and the TNT Leave Policy .” [25] On 17 June Mr Pavlov went back to the doctor he had first consulted who provided him with a medical certificate that “cleared” him to return to work. He provided this certificate to TNT on 18 June. TNT told him in a letter dated 25 June that “ TNT holds reasonable concerns that your (sic) may not be fit for all pre-injury duties that are required to be performed, and form the inherent requirements of the Driver role due to your non-work related foot injury ” and directed him attend medical appointments for the purpose of a functional capacity assessment and a fitness for duties assessment. [26] From this time until his dismissal nearly 8 months later Mr Pavlov was not required to attend for work and was paid by TNT at his base rate for his ordinary hours of work. [27] Mr Pavlov undertook both assessments as directed. [28] The functional capacity assessment, titled Physical & Functional Assessment, gave him an overall physical rating of “Average”. [29] The fitness for duties assessment was conducted by Dr Matthew Paul Consultant Occupational Physician who submitted a detailed medical report. Dr Paul reviewed the functional capacity assessment and a document entitled Physical Demands of Core Positions within TNT. Dr Paul gave his report on 23 July and gave a supplementary report on 24 August. [30] The reports they received founded the conclusion on the part of Mr Zichy-Woinarski and Mr Guinane that Mr Pavlov could not safely perform the inherent requirement of this job. [31] On 15 September TNT gave Mr Pavlov a “show cause” letter and asked him to attend a meeting and invited him to bring a support person. An error was made in this letter referring to a knee injury rather than a toe or foot injury. The error was repeated in the termination letter of 16 February 2016. Although regrettable I am satisfied that this was a typographical error and that neither Mr Pavlov nor TNT were ever confused about the location of Mr Pavlov’s condition. [32] The meeting did not go ahead because the Transport Workers’ Union made an application for the Commission to deal with a dispute about Mr Pavlov and another employee and Commissioner Roberts conducted a conference between the parties on 8 October. [33] On 9 October Mr Pavlov and Mr Guinane met. Mr Pavlov had a support person with him. The meeting discussed TNT’s belief that Mr Pavlov could not safely perform the inherent requirement of his job. Mr Pavlov said that he would provide a new medical report. Mr Guinane agreed to wait for the further medical report about Mr Pavlov’s fitness for work. [34] Mr Pavlov supplied a number of medical certificates between late 2015 and early 2016 from his treating doctor, Dr Lim. [35] The medical certificates stated that Mr Pavlov was fit to return to work and that he should be given a graduated return to work on a trial basis. [36] On 15 October TNT wrote to Dr Lim asking him questions about these medical certificates. They did not receive a response and again wrote to Dr Lim on 6 November and emailed him on 16 November. When a response was not received they wrote to Mr Pavlov on 26 November asking him the questions they had posed to Dr Lim. Mr Pavlov replied on 7 December largely indicating that he was unable to answer the questions and that Dr Lim would have to do so. [37] Dr Lim provided a letter dated 11 December referring to an MRI undertaken on 13 November. Dr Lim concluded that the “ findings on MRI do not prevent him from resuming work as a truck driver .” The MRI report stated: “Impression: Degenerative disease 1 st MTP joint with reactive bone marrow oedema. There is also reactive oedema within the tibial sesamold. There is no stress fracture.” [38] On 16 February Mr Guinane met with Mr Pavlov and gave him a letter terminating his employment. Mr Guinane signed the letter. It was his evidence that he did so on the advice of HR and did not re-read the fitness for duties assessment report from Dr Paul that had underpinned the “show cause” letter in September 2015. [39] In considering whether Mr Pavlov’s dismissal was harsh or unjust or unreasonable I must take into account the factors contained in subsections 387(a) to (h) of the Act. These factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out, and thirdly to any other matters that the Commission regards as relevant to its consideration. [40] I will deal with each in turn. Substantive fairness Was there a valid reason for the dismissal of Pavlov relating to his capacity or conduct? [41] It is common ground between the parties that the reason for Mr Pavlov’s dismissal related to his capacity to safely perform his job. Capacity means the ability of the employee to do the work he or she is employed to do. 1 There is no conduct advanced as a reason for his dismissal. A reference by Mr Marshall at the conclusion of his submissions about whether Mr Pavlov might be considered not to have carried out a lawful direction to obtain a further medical opinion about his condition was put in the context of his submissions against reinstatement of Mr Pavlov. I do not believe that this was a reason for the dismissal and I do not intend to address it further. [42] The reason disclosed in the 15 September 2015 show cause letter was: “unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT…in the event that you cannot be placed in a suitable alternative role I regret to advise that your employment with TNT will be terminated due to your incapacity to safely perform the inherent requirements of your position.” [43] The reason disclosed in the 16 February 2016 termination letter was: “The assessment results conclude that you cannot safely perform the inherent requirements of your position as a Driver. On the basis that you cannot safely perform the requirements of your role, your employment with TNT is terminated”. [44] I find that the reason stated in the termination letter was the reason that TNT terminated Mr Pavlov’s employment. Mr Guinane was the decision maker and he put what was in his mind when he made the decision succinctly in evidence as follows: “I just think he’s got a crook foot and he can’t drive a truck, so that puts us in a pretty bad position. So I don’t know where else to go. That’s it.” 2 [45] A valid reason in this matter will be one that is sound, defensible or well founded in the context of the employee’s capacity or based on the operational requirements of the employer’s business applied in a practical and common sense way to ensure that the employer and employee are each treated fairly. 3 [46] In order to properly consider whether the reason was sound, defensible or well founded I have: a) Identifed Mr Pavlov’s job; b) Identifed the relevant inherent requirements of Mr Pavlov’s job; c) Considered the medical opinions upon which TNT concluded that Mr Pavlov could not safely perform the requirements of his role; d) Considered whether the reason for dismissal was properly founded upon the medical opinions; e) Considered whether TNT could have made reasonable adjustments for Mr Pavlov. What was Pavlov’s job? [47] Mr Pavlov contended that he was a “Bulk Driver” not a “Pick Up and Delivery Driver”. He placed emphasis on the fact that he drove an 8 tonne truck and transported pallets that were loaded and unloaded using a fork lift. [48] Mr Guinane said that the job Pick Up and Delivery Driver incorporated driving bulk freight and he described the difference as “PUD work is the same as - PUD which incorporates bulk. It’s just a different size vehicle.” 4 [49] Mr Zichy-Woinarski was asked about the differences between requirements of the role based on the size of the vehicles. He said: “So when we start looking at the distinctions, the difference between the two is that a PUD vehicle, they can only access the rear of their vehicle by climbing in and out. They are still required to climb in and out of that vehicle and to pick up boxes and handle freight, both to position it to the edge of the dock - edge of their vehicle, then climb out, then they pick up that carton and then they carry that to the customer’s premises, or they may use a hand trolley. When we make the - when we look at what a bulk driver does, their freight can be both palletised on using a - can be palletised meaning that it is on a pallet and can be forked on at the start of the day to make the delivery. But then when they get to a customer’s premises they could either use a pallet jack to pull that pallet off the back of the vehicle into the customer’s premises. Or they could hand unload which means if there is freight on a pallet they physically have to pick that freight up and carry it themselves either down off the back of the truck to the customer’s premises or, if there is lifting equipment available, it can be forked on and forked off. A bulk driver’s also required to remove gates. All of our bulk vehicles have gates as part of our load restraint. So they are required to, working above shoulder height, actually pick those gates up to remove them to enable clear access for a forklift to get in. They’re also required to open and close those gates and those - I’m sorry, open and close those curtains. And what I mean by that is they have to physically pull the gates closed or open to allow access for a forklift and then pull them closed. And then are (indistinct) to apply force to make them rigid so it locks in place. Similarly also a bulk driver’s also required to restrain the load so every one - every piece of freight on our bulk vehicle is restrained which means they’re required to put a load restraint or a strap over the top of the freight, attach it and then make it - then apply force to tighten and make it - to make it tight so there’s no movement of freight.” 5 [50] I accept that Mr Pavlov drove an 8 tonne truck however I consider that Mr Guinane and Mr Zichy-Woinarski’s evidence provides the correct description of the role Mr Pavlov was engaged to carry out for TNT. I find that Mr Pavlov was engaged by TNT as a Pick Up and Delivery Driver. What were the inherent requirements of Pavlov’s job? [51] The job that must be considered is the substantive role for which the employee is engaged, not one that has been modified. 6 [52] The inherent requirements of the job are the essential features of the job without which the job would not be essentially the same. 7 [53] Mr Zichy-Woinarski referred to the typical daily activities of the PUD and Bulk Driver and they are set out in paragraph 19 of this Decision. It is worth noting that no distinction is made between the typical daily activities of the driver based on the size of vehicle. [54] Mr Zichy-Woinarski also referred to the core physical requirements of the PUD Driver, which he said are the same for the Bulk Driver. He said: “While there may be difference in the actions they perform they are still required to potentially lift items that weigh 20 kilos from - sorry, 40 kilos from floor to waist, 20 kilos from waist to shoulder - 30 kilos from waist to shoulder and 20 kilos above shoulder height.” [55] The document Physical Demands of Core Positions within TNT was provided as part of Mr Mr Zichy-Woinarski’s evidence. In this document the Description of Physical Demands of Task are set out for the PUD driver as follows: Task Description Physical Demands Conducting Pre-Operation Checks ● Occasional to frequent walking short distances ● Occasional stooping and squatting ● Infrequent lifting of cab Loading/Unloading Vehicle ● FREQUENT STANDING & WALKING ● OCCASIONAL TO FREQUENT LIFTING, CARRYING AND HANDLING ITEMS OF DIFFERENT WEIGHTS, SHAPES AND SIZES UP TO 40KG FROM GROUND TO WAIST, 30+ KG FROM WAIST TO SHOULDER AND 10-20KG ABOVE SHOULDER HEIGHT ● OCCASIONAL TO FREQUENT HANDLING OF ITEMS OF DIFFERENT WEIGHTS, SHAPES AND SIZES ● GROSS, PLATE AND PINCH GRASPING ● OCCASIONAL TO FREQUENT BILATERAL FORWARD REACHING TO ABOVE HEAD HEIGHT ● OCCASIONAL TO FREQUENT STOOPING AND SQUATTING Driving ● Occasional to frequent claiming (sic) in and out of vehicle (requires hips and knee flexion/extension) ● Frequent to constant sitting ● Bilateral handling gross palmar and reaching at chest height when steering involving unilateral shoulder flexion and abduction ● Constant dorsi/plantar flexion pedal use ● Frequent neck extension/rotation to view mirrors ● Occasional to frequent pushing/pulling door open/close Making Delivery/Collection ● Frequent standing & walking ● Occasional to frequent lifting and carrying objects 1 to 40+ kg ● Occasional to frequent handling items of different weights, shapes and sizes ● Occasional to frequent climbing of stairs ● Occasional to frequent pulling/pushing of trolley ● Occasional reaching above shoulder height to pull roller doors closed ● Gross, plate and/or pinch grasping [56] There is no relevant difference between the description given by Mr Pavlov of his job and the more detailed picture obtained from an examination of the typical daily activities and core physical requirements of the PUD Driver’s role. I accept that Mr Pavlov used a fork lift but that does not rule out the other requirements that are apparent from the more comprehensive description provided by the evidence of Mr Zichy-Woinarski. I consider that the inherent requirements of Mr Pavlov’s job are apparent from the typical daily activities and core physical requirements. Medical reports [57] Mr Pavlov was assessed against the standards set out in the Physical Demands of Core Positions within TNT for the PUD Driver. The functional capacity assessment report, titled Physical & Functional Assessment gave him an overall physical rating of “Average”. The only test on which he was rated as “poor” was that of his hand grip. His hand grip was not suggested as an issue relevant to his ability to safely perform the inherent requirements of the role. His capacity to lift 40kg floor to waist and waist to floor was answered in the affirmative save for his failure to check the weight of the item before attempting the lift. His capacity to lift 30kg waist to shoulder height and shoulder to waist height was answered in the affirmative on all points. His capacity to lift 20kg floor to shoulder to above shoulder height and above shoulder height to shoulder was answered in the affirmative on all points. [58] The fitness for duties assessment took into account the functional capacity assessment. Dr Paul records his summary and assessment as follows: “Mr Pavlov is a 44-year-old pick up and delivery driver who developed pain gradually in April 2015. He is uncertain when this occurred but he believes it is associated with work events, including climbing in and out of a truck, however he was unable to temporally link the two as he was unsure of the exact dates of onset or what occurred first. He states, however, that he continued to have pain and then on 15 April 2015 he woke with pain. It was noted that the pain was of gradual onset and was present both at work and at home during this time, and on the day it became worse he woke up with increased pain. He saw his GP and an X-ray was performed which showed some degenerative changes in the 1st MTP joint and possible stress reaction. The stress reaction was excluded by Bone scan later in June 2015. He has been seen by an orthopaedic surgeon who has diagnosed him with the degenerative foot disease. He has had a functional assessment which has cleared him for return to his duties. In my opinion, given the degenerative nature of the presentation in his foot there would be some risk, if he was exposed to his duties as described, of recurrence of symptoms. It is difficult however to quantify this risk. To reduce the risk he may benefit from moving to a position which does not require climbing in and out of trucks repetitively and performing any heavy lifting or prolonged standing. However, the “appetite” for risk management needs to be determined by the employer. I also have some concerns about his history of episodic lower back pain. He seemed to be reluctant to tell me how frequently the pain occurred but did state that since 2009 he has had at least pain each year. It is noted that his role does require him to bend and lift and to push heavy items.” 8 [59] Dr Paul answered specific questions posed by TNT. The following were of most relevance: “1. Can Pavlov currently perform the inherent requirements of job? In my opinion, he is currently capable of performing the inherent requirements of a PUD driver unrestricted. This has been confirmed by the functional testing. 3. Is Pavlov at risk of further injury and or aggravation if he continues to perform the duties of a PUD driver? In my opinion, there is some risk of aggravation or exacerbation of his underlying degenerative change in his foot. He also has had lower back pain and has a previous back injury going back to 2009. Therefore, in my opinion, there is some risk of exacerbation or aggravation of his previous injuries if he were to continue working in the duties of a PUD driver which does require standing, walking, climbing, bending and lifting. 4. If Pavlov is currently unable to perform the inherent requirements of his role, or increased risk of injury/exacerbation if he does, what restrictions do you believe are required? I am of the opinion that to reduce the risk of aggravation or exacerbation of his condition he would be more suited to an office-based or sedentary role which enabled him to change positions on a regular basis. I would restrict him from lifting more than 20 kg and restrict him from performing repetitive bending or climbing or prolonged standing.” 9 [60] Dr Paul provided a Supplementary Report as follows: “To clarify my answers, it was my opinion that he had the capacity to perform the duties but was not unrestricted. Restrictions were needed to prevent risk of aggravation or exacerbation of his underlying degenerative condition. While functional testing indicated he had the capacity to perform his duties, they did not take into account (in my opinion) the risk of aggravation or exacerbation of his underlying condition. The restrictions outlined in the answer to question 4 remain appropriate and would be considered permanent.” 10 Was the reason for dismissal properly founded upon the medical reports? [61] The Physical & Functional Assessment gave Mr Pavlov an overall physical rating of “Average”. The fitness for duties assessment took into account the functional capacity assessment and answered the question “Can Mr Pavlov currently perform the inherent requirements of a PUD driver unrestricted, as measured against the core physical demands?” in the affirmative. However Dr Paul then answered the question “Is Mr Pavlov at risk of further injury and/or aggravation if he continues to perform the duties of a PUD driver?” by opining that there was “some risk” if he was to continue in the duties of a PUD driver. In responding to the next question Dr Paul indicated that he would restrict him from lifting more than 20kg and restrict him from performing repetitive bending or climbing or prolonged standing. [62] The Supplementary Report provided by Dr Paul confirmed his recommendation of a restriction from lifting more than 20kg and from repetitive bending or climbing or prolonged standing. [63] The results of the functional assessment report and Dr Paul’s opinion that Mr Pavlov could perform the inherent requirements of a PUD driver unrestricted, as measured against the core physical demands at the time of his examination appear to be at odds with the recommended restrictions, until is appreciated that his recommendation is addressed to the risk faced by Mr Pavlov of continuing to work as a PUD Driver with his degenerative condition. Dr Paul’s recommended restrictions are clear and unambiguous. [64] Dr Lim’s medical certificates were confined to his opinion that Mr Pavlov was fit to return to work and that he should return on a graduated basis on a trial basis. His opinion contained in the letter of 11 December 2015 reported on an MRI of Mr Pavlov’s foot and indicated that the findings do not prevent him from returning to work as a truck driver. This report was at odds with the opinion of Dr Paul. [65] This left TNT with competing medical opinions that they were required to weigh up. [66] It was not unreasonable for TNT to weigh the medical opinions contained within the reports and prefer the recommendation by Dr Paul over the recommendation of Dr Lim. Once in receipt of the recommendation for restrictions it was not unreasonable for TNT to base their decision on this recommendation. In considering this I have asked myself the question “would it have been reasonable for TNT not to act on the recommendation?” The answer to this question has to be “no” because on the basis of Dr Paul’s opinion TNT would have been putting Mr Pavlov at risk. Could TNT have made reasonable adjustments for Pavlov? [67] In the case of Jetstar Airways Pty Limited v Neeteson-Lemkes 11 the Full Bench said: “…Section 387(a) therefore required the Commissioner to consider and make findings as to whether, at the time of dismissal, Ms Neetson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her and, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her.” Mr Arjonilla submitted that TNT, as a large organisation, should have made more of an effort to support Mr Pavlov’s return to work by providing reasonable adjustment. TNT provided Mr Pavlov with modified duties from the time his condition manifested to the time his workers compensation claim was denied. This took the form of administrative duties. Modified duties are distinct from reasonable adjustment. Reasonable adjustment involves making changes to an employee’s duties or the conditions under which they are performed so that they are able to perform their role notwithstanding a disability. The only adjustment advanced by Mr Pavlov to his role was a graduated return to work as recommended by Dr Lim. TNT declined to provide this. This was not unreasonable since any performance of the role of driver was incompatible with Dr Paul’s recommendation. [68] It was submitted that Mr Pavlov had requested a different role although the evidence on this point was conflicting with Mr Guinane’s saying Mr Pavlov did not seek any other role but driver, for which he was no longer suitable. TNT submitted that there was no other role that Mr Pavlov could be redeployed into and in any event redeployment is not the same as reasonable adjustment. Conclusion [69] I consider that the reason TNT dismissed Mr Pavlov was sound, defensible and well founded. It was not unreasonable for TNT to accept Dr Paul’s recommendation; the restrictions placed on Mr Pavlov’s role would have meant that he could no longer perform the inherent requirements of his job, and there were no reasonable adjustments that could have been made to the PUD role to allow him to safely perform it. [70] Accordingly, I find that TNT’s reason for terminating the employment of Mr Pavlov was a valid reason. Procedural fairness Was Pavlov notified of this reason? [71] Mr Pavlov was aware from 15 September that TNT were considering terminating his employment because of their belief that he was unable to safely perform the inherent requirements of his job. He received a “show cause” letter and this letter and the background to it were openly discussed in a Commission conference before Commissioner Roberts. He met and discussed TNT’s belief with Mr Guinane on 9 October 2015. He was made aware on 16 February 2016 that TNT had made a decision to terminate his employment on the same grounds. Was Pavlov given the opportunity to respond to this reason? Mr Pavlov was given an opportunity to respond to TNT when he was asked to attend a meeting in the “show cause” letter of 15 September 2015. He did not attend the meeting he was invited to in the letter however his union brought a dispute to the Commission concerning Mr Pavlov and another employee and that dispute was the subject of conciliation by Commissioner Roberts. This afforded Mr Pavlov the opportunity to respond to the reason given for considering his dismissal. Furthermore he was given the opportunity to provide, and did provide, further information to TNT about his capacity to safely perform the inherent requirements of his job from the conclusion of the conciliation on 8 October 2015 to the time of his dismissal on 16 February 2016. Did TNT unreasonably refuse to allow Pavlov to have a support person present to assist at any discussion relating to his dismissal? [72] Mr Pavlov attended at least three meetings in relation to his dismissal. These meetings were held on 8 October 2015, 9 October 2015 and 16 February 2016. In each meeting he had a support person. He was never denied an opportunity to have a support person present to assist at any discussion relating to his dismissal. Was Pavlov warned about unsatisfactory performance before the dismissal? [73] The reason for Mr Pavlov’s dismissal related to his ability to safely perform the inherent requirements of his job. TNT did not complain about Mr Pavlov’s unsatisfactory performance in his role. This factor is more appropriate to be considered when an employee is underperforming in their role and could reasonably be expected to improve his or her performance when this underperformance is pointed out, often with guidance and training. In the circumstances of an inability to perform a role I do not consider that this factor is relevant. Did the size of TNT impact upon the procedures followed in effecting Pavlov’s dismissal? [74] This factor is more appropriate to be considered when an employer is small and there is an absence of rigor in the process of dismissal. Sometimes the absence of due process can reasonably be explained by the employer’s ignorance of its importance or their inability to take time away from core business activity at the time of effecting the dismissal. The factor will always be weighed against the whole circumstance of the dismissal. TNT is a large employer and it was clear from the evidence that a number of specialists were involved in Mr Pavlov’s dismissal. I do not consider that this factor is relevant. Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Pavlov’s dismissal? [75] TNT is a large employer with a sophisticated human resource management capability. It is clear from the evidence that professional expertise was continuously brought to bear throughout the period that TNT was dealing with the future of Mr Pavlov’s employment. I do not consider that this factor is relevant. Conclusion about procedural fairness [76] TNT afforded Mr Pavlov procedural fairness throughout the process of dismissal which occurred from September 2015 to February 2016. None of the factors above weigh in favour of Mr Pavlov’s dismissal being considered unfair. Other matters Are there any other relevant matters? There are no other matters that I consider relevant to my decision. Taking into account all the factors was Pavlov unfairly dismissed? [77] I have found that there was a valid reason for TNT to dismiss Mr Pavlov. I have found that TNT afforded Mr Pavlov procedural fairness throughout the process of dismissal which occurred from September 2015 to February 2016. I do not consider that there are any other matters relevant to my decision. I consider that TNT’s decision to dismiss Mr Pavlov was not harsh or unjust or unreasonable. I find that Mr Pavlov was not unfairly dismissed and his application is dismissed. I so Order. DEPUTY PRESIDENT Appearances : H Arjonilla, Transport Workers Union, for the Applicant. D Marshall , Ai Group, for the Respondent. Hearing details: 2016 Sydney: 11 July. 1 Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031. 2 Transcript PN 1031. 3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373]. 4 Transcript PN851. 5 Transcript PN798 to PN799. 6 J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 . 7 Qantas Airways Ltd v Christie (1998) 193 CLR 280. 8 Report prepared by Dr Matthew Paul Consultant Occupational Physician 23 July 2015 page [5] to [6]. 9 Report prepared by Dr Matthew Paul Consultant Occupational Physician 23 July 2015 page [6]. 10 Supplementary Report prepared by Dr Matthew Paul Consultant Occupational Physician 24 August 2015 page [1]. 11 [2013] FWCFB 9075 at [45]. Printed by authority of the Commonwealth Government Printer <Price code C, PR583381>