1 Fair Work Act 2009 s.604—Appeal of decision Illawarra Coal Holdings Pty Limited T/A South32 v Anthony William Latham (C2023/6197) VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON SYDNEY, 2 FEBRUARY 2024 Appeal against decision [2023] FWC 2483 of Commissioner Ryan at Sydney on 26 September 2023 in matter number U2022/9263 – permission to appeal refused. Background [1] Illawarra Coal Holdings Pty Ltd T/A South32 (the Appellant / South32) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision of Commissioner Ryan issued on 26 September 2023 (the Decision).1 The Decision concerned an application brought by Mr Anthony Latham (the Respondent / Mr Latham) for a remedy under s.394 of the Act, alleging that he had been unfairly dismissed from employment with the Appellant. [2] In the Decision, the Commissioner found that the dismissal of the Respondent was harsh, unjust or unreasonable as there was not a valid reason for the dismissal and no other factors weighed in favour of a finding that the dismissal was not unfair. The Commissioner ordered separately2 for the Appellant to reinstate the Respondent, and for the Appellant to pay the Respondent lost remuneration from the date of dismissal to the date of reinstatement. On 19 October 2023, by consent, the Decision and Order of Commissioner Ryan at first instance was stayed on condition that the monies due to the Respondent for lost remuneration be preserved in a trust account. [3] This matter was listed for hearing in relation to permission to appeal and the merits of the appeal. On 17 October 2023, directions were set for the filing of material by the Appellant and the matter was listed for hearing on 15 December 2023. The Appellant filed written submissions on 13 November 2023 and the Respondent on 8 December 2023. On 12 December 2023, the Appellant consented for the matter to be determined on the papers and the hearing date was subsequently vacated. We granted permission for both Parties to file further written submissions in lieu of the oral hearing which the Appellant and Respondent did on 13 December 2023 and 14 December 2023, respectively. We are satisfied that this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act. [2024] FWCFB 33 DECISION [2024] FWCFB 33 2 [4] For the reasons that follow, permission to appeal is refused and the appeal is dismissed. The decision under appeal [5] The Commissioner first set out the factual background of the matter, which we summarise as follows. Mr Latham was employed by the Appellant in a number of roles since May 1988. At the time of his dismissal, the Respondent was employed in the role of Appin East Weekend Night Shift General Underground Deputy at Appin Mine, which he had held since 2017. Both the Appellant and Mr Latham agreed at first instance that a priority of the Deputy role was to ensure the safety of the mine, including by maintaining statutory compliance. [6] In April 2019, Mr Latham underwent heart surgery. Upon his return to work in September 2019, the Respondent injured his shoulder during a functional health assessment and subsequently underwent a reverse total shoulder replacement. Mr Latham again returned to work around July 2020, before being directed not to attend work pending further assessment of his capacity. On 13 April 2021, Mr Latham was examined by Dr Home, who recommended a number of permanent medical restrictions which included not engaging in work that involved permanent overhead tasks or lifting in excess of certain weights. [7] Following his return to work, around September 2021, Mr Latham began losing feeling in his hips. On 12 November 2021, he underwent a minimally invasive laminectomy performed by Dr Mobbs. Following a post-surgery review, A/Prof Paolini, a Sports Physician to whom the Respondent was referred by his GP, and who had referred Mr Latham to Dr Mobbs, concluded in a January 2022 report that Mr Latham should remain off work until a further review in 2 months’ time. After considering this report, the Appellant sent Mr Latham to Dr Home for an independent medical examination, and provided Dr Home with a description of the inherent requirements of his role and employment within the Appin Mine workplace. [8] Following this examination, and having taken into account a number of materials including previous medical reports and the information supplied by the Appellant, Dr Home concluded in a February 2022 report that Mr Latham was permanently incapacitated for work within his pre-injury role. Dr Home recommended a number of permanent medical restrictions, including restrictions from performing any work that required repetitive forward bending or involved exposure to whole body low frequency vibration. The Appellant subsequently expressed concern that the Respondent was possibly unfit to return to work permanently and gave him an opportunity to review Dr Home’s recent report with his treating doctor and provide further medical evidence. [9] Mr Latham was reviewed by A/Prof Paolini on 28 March 2022, who concluded that he was medically cleared for pre-injury unrestricted duty and issued a medical certificate expressing this opinion. The Appellant then sent a Job Task Analysis (JTA) document to A/Prof Paolini which identified 30 role requirements for a Deputy and asked him to provide a further report as to whether he maintained his views having regard to the JTA. A/Prof Paolini maintained his opinion, but noted that he had not examined Mr Latham’s shoulder injury. [10] Concerned with the seeming contradiction of opinions between Dr Home and A/Prof Paolini, the Appellant requested that Dr Home review the reports produced in March 2022 by A/Prof Paolini and provide his opinion as to whether the Applicant was fit to return to preinjury [2024] FWCFB 33 3 duties. On 8 April 2022, Dr Home produced a supplementary report which indicated that he disagreed with A/Prof Paolini’s opinion and remained of the view that the Applicant was permanently incapacitated. Dr Home did not recommend any adjustments to the medical restrictions set out in his February 2022 report. On 20 April 2022, the Appellant held an internal meeting at which it formed the view that it preferred the evidence of Dr Home over A/Prof Paolini and that there were no reasonable adjustments that could be made. [11] On 16 May 2022, Mr Latham visited A/Prof Paolini for a further review, following which a further report was prepared which indicated that A/Prof Paolini maintained his earlier opinion that Mr Latham was medically cleared for pre-injury unrestricted duties. Mr Latham forwarded this report to the Appellant on 17 May 2022, disputing a number of matters set out in Dr Home’s reports. On 31 May 2022, the Appellant responded by stating that whilst it considered that there were no outstanding matters that required further assessment, it agreed to arrange for Dr Home to reassess Mr Latham’s capacity and restrictions once more and to produce a further report. [12] On 28 June 2022, Mr Latham attended an examination with Dr Home, who produced a further report, having regard to the relevant documents and his physical examination of Mr Latham. In this report, Dr Home acknowledged that whilst Mr Latham had undertaken considerable physical rehabilitation in efforts to strengthen his core and improve his flexibility, this did not substantively reduce his risks of future injury. Dr Home therefore concluded that he would not vary his recommendations from his February and April 2022 reports. [13] On 9 August 2022, the Appellant sent correspondence to Mr Latham advising him of the outcome of Dr Home’s June examination and explained that it had formed the view that Mr Latham could not safely perform the inherent requirements of his role, and there were no suitable alternative roles available to him. The Appellant invited Mr Latham to show cause as to why his employment should not be terminated by 16 August 2022. On 15 August 2022, Mr Latham responded to the invitation to show cause, attaching a medical certificate from A/Prof Paolini dated 11 August 2022 which certified that he was fit for unrestricted work. In his response, Mr Latham also stated that he was able to conduct an emergency evacuation at the Appin Mine, disagreed with Dr Home’s medical opinion, that his physical fitness had improved and that he did not have any permanent disabilities or restrictions for lifting, walking, or driving. [14] After considering Mr Latham’s response and forming the view that he was nevertheless unable to perform the inherent requirements of his role and no reasonable adjustments could be made to accommodate the medical restrictions recommended by Dr Home, the Appellant sent correspondence to Mr Latham on 25 August 2022 confirming its decision to terminate his employment with immediate effect. [15] Having set out the factual background of the matter, the Commissioner subsequently noted that there was dispute over the inherent requirements of Mr Latham’s role. Mr Latham and co-worker Mr Meades both contended that the JTA provided to Dr Home did not actually reflect the inherent requirements of the role as it included items that they had never completed before, or tasks that were ordinarily assigned to Operators. However, both parties accepted, and the Commissioner consequently found at [76] of the Decision, that the inherent requirements of the role of a Deputy in terms of physical capacity are set out in correspondence sent to Dr [2024] FWCFB 33 4 Mobbs dated 6 March 2023 by the Collieries Staff and Officials Association. That list contained the following items: “1. regularly travel in a “drift runner” style vehicle with limited or no suspension over rough/uneven ground and unsealed roads; 2. regularly walk over uneven ground; 3. from time to time, bend and crouch (primarily in order to inspect equipment including by inspecting the area under conveyor belts); 4. perform repetitive forward bending at the waist and/or repetitive twisting of the spine (in order to observe conditions such as the roof and the side of the roadway); 5. from time to time, use a shovel to move coal dust; 6. from time to time, lift, push, pull and use heavy hoses and pumps; 7. from time to time, lift more than 15 kg between shoulder and knee height and more than 10 kg from below knee height; 8. in an emergency situation, put up and carry a CABA that weighs approximately 16 kg in backpack form and walking up to 15 km out of the mine; and 9. in an emergency situation, lifting up to 25 kg as part of four person lift of stretcher.” [16] The Commissioner then turned to the medical evidence and March 2023 medical report provided by Dr Mobbs. In his report, Dr Mobbs stated inter alia that: • minimally invasive laminectomies cause minimal spinal instability and minimal increased risk of future injury; • the condition of Mr Latham’s spine was excellent and there was no increased risk of further spinal injury in keeping with an asymptomatic person of a similar age and sex; • there was no indication that a multilevel spinal fusion was necessary should Mr Latham become re-injured as it would be a ‘gross overservicing’; and • there is no high-level evidence to confirm a cause-and-effect relationship between low body frequency vibration and spinal pathology. [17] The Commissioner contrasted Dr Mobbs’ evidence against that of Dr Home’s, who produced a further medical report in reply in April 2023. Across his evidence, Dr Home stated inter alia that: [2024] FWCFB 33 5 • he imposed the permanent medical restrictions on Mr Latham due to risk of material aggravation of the identified multilevel spinal degenerative changes and additional vulnerability due to his disc surgery; • Mr Latham’s previous requirement for decompression surgery and known spinal pathology increase his risk of reinjury and further surgery; • the reporting on Mr Latham’s preoperative imaging demonstrates multilevel central disk bulges and bone scan uptake; • Mr Latham’s spinal degenerative changes are not minor; and • Dr Mobbs does not address the issue of risks posed to Mr Latham and his coworkers in relation to his workplace duties, and thus his report does not change his (Dr Home’s) previous opinions regarding work capacity. [18] In examination-in-chief and cross-examination, Dr Mobbs also stated the following: • the reporting of Mr Latham’s preoperative MRI scans was ‘grossly overstated’; • the presence of multilevel disc bulging is not an abnormal finding having regard to a person in Mr Latham’s age bracket; • any future aggravation of Mr Latham’s injuries would not require spinal stabilisation; and • any low level of increased risk due to whole body vibration would not prevent Mr Latham from returning to work as a Deputy. [19] The Commissioner then briefly summarised each of Mr Latham’s and the Appellant’s submissions. Mr Latham submitted that Dr Mobbs’ opinion must be preferred for the following reasons: • Dr Mobbs is a neurosurgeon with a sub-specialty in spinal surgery and is independent with no ongoing relationship with any of the parties; • Dr Home incorrectly assessed Mr Latham’s spinal condition and MRI scans. Moreover, Dr Home was unable to say with confidence whether he had seen the MRI scans and accepted that he had not seen the CT scans; and • Many of Dr Home’s opinions did not rise beyond the level of mere assertion, including the suggestion that the level of vibration at Appin Mine posed a danger to workers. [20] Moreover, Mr Latham submitted that the inherent requirement of the Deputy role was as a supervisor and inspector, inconsistent with the level of manual handling contended for by the Appellant. Mr Latham also submitted that many of the tasks Dr Home considered him incapable of performing were marginal aspects of his job which he never performed. Mr Latham [2024] FWCFB 33 6 therefore submitted that as there was no relevant incapacity on his part to perform the inherent requirements of his role, there was no valid reason for his dismissal, and that his dismissal was harsh, unjust and unreasonable. [21] The Appellant’s submissions at first instance can be summarised as follows: • the Appin Mine is a dangerous working environment which requires a high level of physical capacity, with the safety of other workers dependent on this capacity; • whilst Mr Latham’s spinal decompression surgery was successful, it was uncontradicted that the procedure affected the stability of his spinal column, and the degenerative conditions that led to spinal stenosis will continue to worsen; • Dr Mobbs’ March 2023 report was obtained post dismissal and was limited to the successful outcome of the spinal decompression procedure, and cannot be accepted as relevant to the issue of whether there was a valid reason for the termination of Mr Latham’s employment which had occurred some nine months prior; • Dr Mobbs accepted at hearing that the assessment of injuries and their impact upon a person’s functional capacity are within the expertise of an occupational physician like Dr Home; • in circumstances where the Commission must ‘arbitrate’ between competing medical advice in relation to maintaining safety in a dangerous workplace, the Commission should take a conservative approach and prefer an option which is safe; • Dr Home had concluded there were certain critical and unavoidable requirements of Mr Latham’s role that he could no longer perform, giving rise to a valid reason for dismissal; • there are potentially catastrophic consequences if Mr Latham was allowed to return to work as a Deputy; and • if the Commission did determine that Mr Latham’s dismissal was unfair, that reinstatement would be an inappropriate remedy. [22] Having set out the evidence and submissions before him, the Commissioner found at [135] of the Decision that Mr Latham had been dismissed within the meaning of s.385 of the Act, as there was no dispute that his employment was terminated at the initiative of the Appellant. The Commissioner then turned to assessing each of the factors under s.387 of the Act as to whether Mr Latham’s dismissal was harsh, unjust or unreasonable. [23] In considering whether there was a valid reason for Mr Latham’s dismissal, the Commissioner first summarised the applicable legal principles. The Commissioner noted that where an employer asserts that there was a valid reason for dismissal related to capacity, it must be the substantive position or role of the employee that must be considered and not modified, restricted or alternative duties.3 Moreover, where there is conflicting medical evidence, the [2024] FWCFB 33 7 Commission must resolve the conflict and make findings as to whether there was the alleged incapacity at the time of dismissal.4 [24] The Commissioner accepted that whilst an assessment of functional capacity fell into the expertise of Dr Home, that assessment must be based on an accurate evaluation of the condition and stability of Mr Latham’s spine. The Commissioner found at [145] of the Decision that ‘the key issue in dispute is the conflict between the evidence of Dr Home and Dr Mobbs as to the condition and stability of the Applicant’s spine following the spinal decompression procedure in November 2021’, and subsequently set out the reasons he preferred the evidence of Dr Mobbs to Dr Home. [25] The Commissioner found that Dr Mobbs was clear in his evidence that he had reviewed the preoperative CT and MRI scans and considered that the reporting of this imaging was overstated, concluding that Mr Latham’s spine had minimal degenerative changes in keeping with an asymptomatic person of a similar age. Conversely, Dr Home had not viewed the CT scans and was uncertain as to whether he had viewed the MRI scans. Dr Home also accepted that he did not have the same level of experience as Dr Mobbs in reviewing spinal imaging. Despite this, Dr Home had placed significant emphasis on the fact that his assessment of the preoperative imaging led to his decision to place permanent medical restrictions on Mr Latham. [26] Additionally, as Dr Mobbs was the neurosurgeon who performed the spinal decompression procedure, the Commissioner found that he was uniquely placed to comment on the condition of Mr Latham’s spine, which he described as excellent with minimal risk of further spinal injury compared to an asymptomatic person of similar age and sex. Moreover, the Commissioner found that Dr Mobbs was clear that the spinal decompression procedure had minimal impact on Mr Latham’s spine, which Dr Home ultimately accepted at hearing. [27] As the Appellant’s view that Mr Latham could not perform the inherent requirements of his role was based upon his medical conditions and in particular, the condition of his spine, the Commissioner found at [160] of the Decision that Mr Latham did not suffer from the alleged spinal incapacity at the time of his dismissal, and thus that the Appellant did not have a valid reason for dismissal. He concluded at [162] that this weighed in favour of a conclusion that Mr Latham’s dismissal was unfair. [28] The Commissioner subsequently found that whether Mr Latham was notified of a valid reason for dismissal and whether he was given an opportunity to respond to that valid reason for dismissal, factors requiring assessment under s.387(b) and (c), were irrelevant to the matter at hand as there was no valid reason for dismissal. As the dismissal did not relate to unsatisfactory performance, the Commissioner also considered the factor under s.387(e) – whether Mr Latham was warned about unsatisfactory performance prior to dismissal – to be irrelevant. [29] The Commissioner further found that the Appellant did not refuse to allow Mr Latham a support person, that the size of the Appellant’s enterprise did not impact the procedures effecting the dismissal, and that the Appellant did not lack dedicated human resource management specialists and expertise. The Commissioner therefore concluded that the factors in s.387(d), (f) and (g), respectively, weighed neutrally in his consideration. As for other [2024] FWCFB 33 8 relevant matters under s.387(h), the Commissioner found that Mr Latham’s age and extensive length of service supported a finding that his dismissal was harsh, unjust or unreasonable. [30] Having considered each of the matters specified in s.387 of the Act, the Commissioner found at [175] of the Decision that the dismissal of Mr Latham was harsh, unjust or unreasonable as there was no valid reason for dismissal and no other factors weighed in favour of a finding that the dismissal was not unfair, and at [180] of the Decision that Mr Latham had been unfairly dismissed within the meaning of s.385 of the Act. [31] Finally, the Commissioner considered the appropriate remedy for unfair dismissal. Mr Latham sought reinstatement and back-pay, whilst the Appellant opposed reinstatement. The Commissioner found that the Appellant’s position regarding reinstatement was based on its view that Mr Latham would have been unable to perform the inherent requirements of his role as a Deputy, and therefore that reinstatement was not inappropriate having regard to his previous findings on Mr Latham’s alleged incapacity. In arriving at this conclusion, the Commissioner took into account the fact that Mr Latham had completed refresher training on emergency evacuation in January 2023 and that, despite his shoulder condition, Mr Latham was previously able to work as a Deputy within the relevant restrictions placed on him. The Commissioner therefore made orders for Mr Latham to be reinstated, for the Appellant to pay him lost remuneration, and for the continuity of his employment to be maintained. Grounds of appeal [32] In its F7 Notice and Appeal and Outline of Submissions, the Appellant advances six grounds of appeal, which we briefly summarise below. Ground 1 – misidentification of key issue in dispute [33] The Appellant’s first ground of appeal, which it describes as being the ‘fundamental error’ made by the Commissioner that led to other derivative errors, is that the Commissioner misidentified the critical issue in dispute. The Appellant contends the Commissioner erred at [145] of the Decision in finding that ‘the key issue in dispute is the conflict between the evidence of Dr Home and Dr Mobbs as to the condition and stability of the Applicant’s spine following the spinal decompression procedure in November 2021’. Rather, the Commissioner should have found that the key issue was whether Mr Latham had functional capacity to carry out the inherent requirements of his role as an Underground Deputy as at the date of his dismissal. [34] The Appellant submits that it was an error in such circumstances for the Commissioner to prefer Dr Mobbs’ evidence, given Dr Home was accepted by both Dr Mobbs and the Commissioner as having the relevant expertise to determine Mr Latham’s functional capacity, as an occupational physician. Moreover, the Appellant submits that Dr Mobbs’ medical evidence was based only on examinations conducted in late 2021 – some 8 months prior to Mr Latham’s termination, and therefore that Dr Mobbs was incapable of giving evidence about Mr Latham’s medical condition or functional capacity as at the point of termination, citing Hyde v Serco Australia Pty Ltd.5 [35] The Appellant also submits that the Commissioner’s finding at [156] of the Decision – that Mr Latham was typical of an asymptomatic person of the same age and sex – was far from [2024] FWCFB 33 9 the opinion that it was safe and available for Mr Latham to continue to carry out the inherent requirements of his role, and was a finding that should have been evaluated in the context of the ‘critical concessions’ made by Dr Mobbs in cross-examination. Ground 2 – significant error of fact regarding witness [36] The Appellant submits under Ground 2 that the Commissioner made a significant error of fact in finding that Dr Home accepted that he did not have the same level of expertise as Dr Mobbs in reviewing spinal imaging, despite extracts from the transcript of the hearing suggesting otherwise. Ground 3, 4 and 5 – consideration of irrelevant evidence [37] The Appellant contends variously under Grounds 3 to 5 that the Commissioner erred in admitting certain evidence as relevant. Grounds 3 and 4 largely reiterate the Appellant’s contentions under Ground 1, insofar as the Commissioner erred by admitting Dr Mobbs’ medical evidence as relevant, and in preferring Dr Mobbs’ medical evidence to Dr Home’s. Under Ground 6, the Appellant submits that the Commissioner erred by finding there was a conflict in the views of Dr Home and A/Prof Paolini and that it would have been prudent for the Appellant to seek a further opinion from an agreed independent medical expert, in circumstances where there was no conflict of medical opinion in relation to Mr Latham’s spinal pathology. Ground 6 – reinstatement [38] The Appellant submits under Ground 6 that the Commissioner erred in finding that it was not inappropriate to reinstate Mr Latham, in circumstances where the Commissioner did not make any definitive finding that Mr Latham had the functional capacity to safely carry out the inherent requirements of his role. Public interest [39] The Appellant submits that it would be in the public interest to grant permission to appeal because the Decision has capacity to result in an unsafe work situation for Mr Latham and his co-workers, involves questions of general application to inherently dangerous and dynamic work environments, raises important issues of principle in relation to evaluating competing medical opinions, and raises important issues of principle in relation to the exercise of the Commission’s discretion to grant reinstatement in circumstances where there is credible evidence that the employee is suffering from a degenerative medical condition which may impact on their ability to carry out the requirements of their role. The Appellant also contends that the Decision contains significant errors of fact and law. Principles on appeal [40] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.6 There is no right to appeal. An appeal may only be made with the permission of the Commission. [2024] FWCFB 33 10 [41] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally. [42] The public interest test in s.400(1) is a discretionary one involving a broad value judgment.7 The public interest is not satisfied simply by the identification of error,8 or a preference for a different result.9 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest: “… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”10 [43] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.11 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. Consideration Ground 1 [44] The Appellant is essentially contending under Ground 1 that the Commissioner misapplied the test for whether the Appellant had a valid reason to dismiss Mr Latham on grounds of incapacity by misidentifying the key issue in contention. The Appellant submits that whilst the Commissioner answered the question of what condition and level of stability Mr Latham’s spine was in following his spinal decompression surgery, he did not explicitly answer whether Mr Latham was able to, at the time of his dismissal, carry out the inherent requirements of his role. Having regard to all the material before us, we disagree. [45] We consider that the Appellant’s submission mischaracterises and takes out of context [145] of the Decision, which should be read together with the remainder of the Commissioner’s analysis of the reason for dismissal for the purpose of s.387(a) of the Act. At [148] of the Decision, the Commissioner makes the following observation: “[148] I accept the evidence of both Dr Home and Dr Mobbs that the question of whether a person has functional capacity falls within the expertise of Dr Home. However, any assessment of functional capacity must be based on an accurate assessment of the condition of the persons health – in this matter, the condition and stability of the Applicant’s spine.” [2024] FWCFB 33 11 [46] Moreover, at [159] – [161], the Commissioner indicates that the question of whether Mr Latham was fit and able to perform the inherent requirements of his role was predicated upon the finding of what condition his spine was in, and thus whether the Appellant had a valid reason to dismiss him: “[159] The Respondent’s view that the Applicant could not perform the inherent requirements of his role of a Deputy at the Appin Mine was based upon his medical conditions and in particular, the condition of his spine. [160] Having regard to my preference for the evidence of Dr Mobbs, I am not satisfied that the Applicant suffered from the alleged spinal incapacity at the time of dismissal. [161] As a consequence, the Respondent’s dismissal of the Applicant for the reason that he was unable to perform the inherent requirements of the role of a Deputy is a not a valid reason.” [47] We do not consider that the Commissioner erred in choosing to focus on the issue he did, nor do we consider that the Commissioner misapplied the test for valid reason. It is clear from the Decision that the Commissioner had to make a finding about the condition of Mr Latham’s spine in order to inform his conclusion about Mr Latham’s alleged incapacity to fulfil the inherent requirements of his role. The Commissioner’s characterisation of the conflicting medical evidence as the ‘key issue’ is not incorrect, as the condition and stability of Mr Latham’s spine was obviously the primary area of difference between the parties at first instance. [48] For similar reasons, we reject the Appellant’s submission that the Commissioner erred in preferring Dr Mobbs’ medical opinion over Dr Home’s, as Dr Home held the expertise in assessing Mr Latham’s functional capacity, being an occupational physician. We consider this to be an oversimplification of why the Commission should have preferred Dr Home’s opinion. As noted above, the Commissioner readily accepted at [148] of the Decision that the question of whether a person has functional capacity falls within the expertise of Dr Home. However, especially given Dr Home stated that the reason for the permanent restrictions placed on Mr Latham was due to his spinal pathology, any inaccuracy in the assessment of Mr Latham’s spinal condition and stability necessarily undermines the reliability of Dr Home’s opinion. The Commissioner set out extensive reasons at [150] – [158] of the Decision for why, on the issue of Mr Latham’s spinal condition and stability, he preferred the evidence of Dr Mobbs. It was therefore open to the Commissioner to make the finding he did. [49] We also disagree with the Appellant’s assertion that, because Dr Mobbs’ examination of Mr Latham occurred some 8 months prior to his dismissal, the medical opinion contained within his March 2023 report was incapable of informing any finding on Mr Latham’s spinal condition or functional capacity as at the time of dismissal. Dr Mobbs’ March 2023 report contained observations – that the spinal decompression injury created minimal risk of further injury, and that Mr Latham’s spine condition was excellent in keeping with a person of similar age and sex in November 2021 – that had continued relevance at the time of dismissal. There is no suggestion that any substantive, medically relevant events occurred between November 2021 and 25 August 2022 that altered the condition or stability of Mr Latham’s spine. We note especially that Mr Latham was examined three additional times following November 2021 by [2024] FWCFB 33 12 A/Prof Paolini and Dr Home, neither of whom observed any material deterioration in Mr Latham’s condition. Moreover, no additional MRI, CT or flexion extension x-ray scans were conducted following Mr Latham’s surgery, and Dr Mobbs, A/Prof Paolini and Dr Home each relied on the same pre-operative scans to inform their reports. It was therefore open to the Commissioner to rely on Dr Mobbs’ March 2023 report, as there was no evidence before him that anything had changed about Mr Latham’s condition prior to the dismissal or the hearing before the Commissioner. [50] Finally, we disagree with the Appellant’s submission that Dr Mobbs’ medical opinion was not evaluated in light of certain ‘critical concessions’ made in cross-examination. First, we consider the fact that the Commissioner acknowledged a number of these concessions at [106] of the Decision suggests that he did take them into account in his subsequent evaluation of Dr Mobbs’ evidence. Second, we do not consider that any concessions made by Dr Mobbs in cross- examination materially impacted the reliability of the March 2023 report to the point where the Commissioner erred in preferring it. The main concessions the Appellant points to are Dr Mobbs accepting that Mr Latham was suffering from particular conditions that would worsen with age, including multi-level disc bulges, facet arthropathy, discovertebral uptake, and the potential for reoccurring stenosis, and that Mr Latham’s back would likely degenerate faster than someone with a desk job given the nature and environment of his work. We consider that these observations are not mutually exclusive with, nor undermine Dr Mobbs’ conclusions that Mr Latham’s spine had minimal degenerative changes and was in keeping with an asymptomatic person of a similar age, and that any increased risk of further spinal injury was minimal compared to that of an asymptomatic person of the same age and sex. [51] As Ground 1 discloses no arguable case of appealable error, we reject it. Ground 2 [52] The Appellant’s submission under Ground 2 is that the Commissioner made a significant error of fact at [94] of the Decision by finding that “While both Dr Home and Dr Mobbs are experienced in reviewing spinal imaging, under cross examination, Dr Home accepted that he did not have the same level of experience as Dr Mobbs in reviewing spinal imaging.” The Appellant contends that, to the contrary, Dr Home asserted in cross-examination that he had high expertise in interpreting spinal imagery. The Appellant points in particular to responses given by Dr Home at PN1630 – PN1640 of the Transcript, extracts of which are provided below: “PN1631: And if I suggested to you that Dr Mobbs, for example, has a special expertise in interpreting spinal imaging you'd agree?---I have no idea whether he has a special expertise in reviewing spinal imaging. A lot of neuro-radiologists, radiologists, particularly MRI specialists in imaging, who have a special – he's not unique in that regard. I actually myself review MRI scans 500 times a year – probably several thousand MRI scans each year. So I have very high expertise interpreting MRI scans and other imaging of the spine. PN1632: You're not suggesting that you have the same level of expertise as Dr Mobbs in reviewing the spinal imaging, are you?---No. I do. I would say, I don't know him personally, but I would say that I have a lot of experience in that area. Yes. [2024] FWCFB 33 13 […] PN1638: Now, you deal with a wide variety of problems – medical problems?---Well, if you want me to answer the question. I deal with 500 chronic back cases a year. So spine is the main thing I see in my work – chronic spine conditions. All with chronic back pain. PN1639: All right. So you, sitting here, suggest to the Commissioner that he should proceed on the basis that your expertise in reviewing spinal imaging is on a par with that of Dr Mobbs?---I don't know. I don't know Dr Mobbs personally. So I don't know how expertised he is in that area. But I would say I have expertise in that area. If you say he is unique I disagree with that statement. PN1640: He has an unusually high level of skill interpreting spinal imaging. Would you agree with that?---I'm sure he would have if he has been working for 20 years as a spinal surgeon. Yes.” [53] We accept based on the above responses by Dr Home that the Commissioner erred in finding that Dr Home accepted he did not have the same level of experience as Dr Mobbs in reviewing spinal imaging. However, that an error of fact was present in the Decision does not mean the appeal must succeed, as we are not persuaded the error is significant. Whilst Dr Home does not concede that Dr Mobbs’ expertise in reviewing spinal imaging is of a higher level, he at best asserts that his level of expertise may or may not be on par with Dr Mobbs, and that he is unable to make a definitive conclusion as he does not know Dr Mobbs personally. Dr Home nevertheless accepts that Dr Mobbs has an ‘unusually high level of skill interpreting spinal imaging’. It is clear from the Commissioner’s analysis at [150] – [158] of the Decision that the relative level of expertise between Dr Home and Dr Mobbs of assessing spinal imaging is only one of several factors that contributed to the Commissioner’s preference for Dr Mobbs’ evidence. [54] As Ground 2 does not disclose any arguable case of appealable error, we reject it. Grounds 3, 4 and 5 [55] We consider that Grounds 3 and 4 are mere reiterations of submissions the Appellant has already made under Ground 1, and therefore we reject them. [56] As for Ground 5, the Appellant submits that the Commissioner erred at [177] – [179] of the Decision by stating that: “[177] I note the Respondent’s submission that it should not have to ‘arbitrate’ competing medical evidence in coming to a conclusion as to whether an employee is fit to perform the inherent requirements of their role. [178] However, the Respondent was aware that there was a conflict in the views between Dr Home and A/Prof Paolini prior to terminating the Applicant’s employment. While it was open to the Respondent to seek a further opinion, it did not do so. [2024] FWCFB 33 14 [179] There is always an element of risk in relying on a medical opinion which is later found to have been inaccurate or overstated. In circumstances where an employer is in receipt of competing medical opinions, it would be prudent to seek a further opinion which may be best achieved by the parties agreeing on a nominated independent medical expert.” [57] The Appellant submits that it was clear in the evidence before the Commission at first instance that there was no clear conflict of medical opinion between Dr Home and A/Prof Paolini, which is a separate issue from their views on Mr Latham’s functional capacity to perform the inherent requirements of his role, and that Dr Home in fact relied on A/Prof Paolini’s assessment of preoperative imaging as the basis for his reports. Moreover, the Appellant submits that, because A/Prof Paolini was not called to give evidence at the hearing, the Commissioner could not confirm whether Dr Home’s and A/Prof Paolini’s medical opinions were actually in conflict. [58] We consider that there is no case of appealable error under Ground 5. When read in the context of the Decision, it is clear that the Commissioner’s statement at [177] – [179] was not a basis upon which he concluded that Mr Latham’s dismissal was harsh, unjust or unfair, but rather a general recommendation made to employers regarding any future conduct under similar circumstances. The statement appears after the Commissioner concludes his analysis of the s.387 factors at [175], and immediately prior to his consideration of the appropriate unfair dismissal remedy. Therefore, the Commissioner’s statement at [177] – [179] did not affect the outcome of Mr Latham’s application as it was not given weight as a relevant consideration. Accordingly, we reject this ground of appeal. Ground 6 [59] Finally, as for Ground 6, we consider that the Appellant’s submissions are merely an assertion that the Commissioner should not have made an order for reinstatement based on the Appellant’s other submissions under Grounds 1 through 5. Moreover, we disagree with the Appellant’s contention that reinstatement should not have been ordered in circumstances where the Commissioner did not make an explicit finding that Mr Latham was capable of safely carrying out the requirements of his role, or any finding in relation to the ‘true nature’ of Mr Latham’s spinal capacity at the time of dismissal. [60] The Commission has a broad discretion to order various remedies in relation to an unfair dismissal so long as they are not inappropriate or appropriate in all the circumstances, pursuant to s.390 of the Act. The Commissioner found at [186] of the Decision that reinstatement of Mr Latham was ‘not inappropriate’, having taken into account his previous findings on Mr Latham’s alleged incapacity. As discussed above, we do not consider that the Commissioner erred in making these previous findings.12 [61] Further, we disagree with the Appellant’s submissions that the Commissioner should not have found that reinstatement was not inappropriate given no positive finding was made about Mr Latham’s spinal capacity or ability to carry out his responsibilities safely in his role. The Commissioner was not required to make positive findings in the form the Appellant contends. The Commissioner’s finding that Mr Latham did not suffer from the alleged spinal [2024] FWCFB 33 15 incapacity at the time of his dismissal at [160], with no further evidence presented by the Appellant suggesting that any substantive, medically relevant deterioration had occurred in his condition after the date of dismissal, necessarily implies that the Commissioner was satisfied Mr Latham could perform the inherent requirements of his role safely, given workplace safety was identified at [20] of the Decision as being a priority for Deputies. [62] As Ground 6 discloses no arguable case of appealable error, we reject it. Conclusion [63] The issue here is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Commissioner has not erred in the application of the principles to the facts and evidence as presented to him. [64] Further, we have considered whether the appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 of the Act, that it does attract the public interest. In reaching this conclusion we have had regard to the fact that: • there is not a diversity of decisions at first instance so that guidance from an appellate bench is required; • the appeal does not raise issues of importance and/or general application; • the Decision at first instance does not manifest an injustice, nor is the result counter- intuitive; and • the legal principles applied by the Commissioner were not disharmonious when compared with other decisions dealing with similar matters. [65] It follows that we must refuse permission to appeal. Accordingly, permission to appeal is refused. VICE PRESIDENT Appearances: Matter determined on the papers. [2024] FWCFB 33 16 Final written submissions: 13 December 2023, for the Appellant. 14 December 2023, for the Respondent. Printed by authority of the Commonwealth Government Printer <PR770887> 1 [2023] FWC 2483 (‘the Decision’). 2 PR766600. 3 J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22]. 4 CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at [76] – [77]. 5 [2018] FWCFB 3989 at [70]. 6 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. 7 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46]. 8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]. 9 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]. 10 (2010) 197 IR 266 at [27]. 11 Wan v AIRC (2001) 116 FCR 481 at [30]. 12 House v The King (1936) 55 CLR 499 at 505.