TERMINATION OF EMPLOYMENT – incapacity – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – Mr Norman had a skydiving incident which resulted in significant injuries to his left and right femurs and his face – Mr Norman did not return to work – Dr Graham is a Specialist Occupational Physician and he was asked by the appellant to provide a medical assessment of Mr Norman and to provide recommendations as to his ongoing capacity to perform the inherent requirements of his role as a maintenance fitter – Dr Graham concluded that it would be unlikely that Mr Norman would be able to perform all the inherent requirements of the role in the near future – Professor Jaarsma was Mr Norman’s treating Orthopaedic Surgeon, he provided Mr Norman with a clearance to return to work – appellant provided Professor Jaarsma’s clearance to Dr Graham who advised that he had not changed his opinion – Mr Norman was dismissed on the basis that he was no longer able to perform the inherent requirements of his position – at first instance the Commission held that the Mr Norman had been unfairly dismissed as his dismissal was found to be unjust and unreasonable – the Commission ordered that Mr Norman be reinstated to his former position and be paid for remuneration lost by him as a result of his dismissal – permission to appeal granted on the grounds that this Full Bench was satisfied that a potential significant error of fact may have led the Commission to erroneously decide Mr Norman was able to perform the inherent requirements of his position, when his employer took the view the evidence available to it led to a decision to the contrary [[2016] FWCFB 1887] – decision of Full Bench majority – appeal grounds essentially address the finding of the Commission that there was not a valid reason for Mr Norman’s dismissal – whether the Commission properly applied the test for establishing the existence of a valid reason for termination – Selvachandran considered – in an unfair dismissal case the relevant factual matrix must be considered by the Commission – in a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss – appropriate to have regard to whether reasonable adjustments may be made to a person’s role in order to accommodate any current or future incapacity, however such consideration will be within the context of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury – decision at first instance reveals two significant errors – Full Bench majority did not believe that the Selvachandran test was properly applied – the approach taken was to hear evidence from the two doctors and on the basis of their evidence, form a view as to which doctor’s view was preferred – the task in this case was to determine whether there was a valid reason for the dismissal – whether the employer’s reason was sound, defensible and well-founded – this error was compounded by the Commission’s treatment of the evidence – Commission rejected the evidence of Dr Graham, the only doctor to provide an assessment of Mr Norman’s overall capacity, and the only doctor to provide an assessment about Mr Norman’s capacity to perform the inherent requirements of his role – Commission preferred the evidence of Professor Jaarsma, however Professor Jaarsma did not give evidence of any reliable kind on Mr Norman’s ability to perform the inherent requirements of the role – his opinion was confined to the recovery from the injury he treated – Commission is not in a position to make an expert medical assessment – held the errors in the approach and analysis of the Commission at first instance vitiated the discretion vested in the Commission – Commission should have found there was a valid reason for dismissal – appropriate therefore that we allow the appeal and quash the decision and order – question of whether the termination was harsh, unjust or unreasonable to be re-determined – found there was a valid reason for the dismissal of Mr Norman based on the medical advice that the appellant received – reason was sound, defensible and well-founded – Mr Norman no longer able to perform the inherent requirements of his position – appellant had considered whether reasonable modifications could be made, or whether he could be moved to another role, and concluded that neither could be done – at first instance the Commission found that Mr Norman was advised of the reason for dismissal but was not given a reasonable opportunity to respond to those reasons – with respect, the reasonableness of the opportunity is not part of the criterion in s.387(c) of FW Act unless the facts indicate that no opportunity at all was given – insertion of a qualitative assessment into the legislation alters the test in an impermissible way – more time was not sought by Mr Norman – Full Bench majority found Mr Norman was given an opportunity to respond to the reason – found dismissal was not harsh, unjust or unreasonable – appeal allowed – decision at first instance quashed – Mr Norman’s application for unfair dismissal dismissed – decision of Full Bench minority – decision at first instance was a discretionary decision and it is not in contest that the principles set out in House v The King apply – appellant only granted permission to appeal in relation to those grounds pivotal to the Commission’s preference for Professor Jaarsma’s evidence – submitted that capacity cases should be distinguished from conduct cases where it needs to be established that the conduct actually occurred – further submitted that a determination of the inherent requirements was different and as reasonable medical minds may differ ‘an employer should be entitled to rely on medical evidence that it has before them’ – Ambulance Victoria v Ms V considered – Full Bench minority did not accept the submission of the appellant that conduct cases are binary and capacity cases are not – held that context in both conduct and capacity cases plays an essential part in determining whether there was a valid reason for dismissal – the assessment of whether there was a valid reason for the dismissal must be assessed by reference to Mr Norman’s state of health and the expert opinions expressed as to his state of health, as they were at the time of his dismissal – what was in dispute was whether Mr Norman would have been able to fulfil his position sometime in the future and whether reasonable modifications could be made to accommodate any restrictions or limitations that he may have – no evidence on which Commission could conclude that Mr Norman’s was fit to perform the inherent requirements of the position – Commission erred when it found that at the date of his dismissal Mr Norman was able to perform the inherent requirements of the position – Full Bench minority held this finding was a significant factual error – would uphold the appeal and quash the decision and order at first instance – appropriate to determine the question of whether the dismissal was harsh, unjust or unreasonable – satisfied there was a valid reason for the dismissal – satisfied that on the evidence before the Commission, at the date of his dismissal Mr Norman was not able to safely perform the inherent requirements of his position – also satisfied that there was no reasonable accommodation that could have been made to enable him to perform the requirements safely – Full Bench minority did not agree with the decision of the majority that s.387(c) only has relevance if the employee is given no opportunity to respond – the opportunity to respond must be real – for the reasons set out by the majority in relation to s.387(h), minority satisfied that Mr Norman did have an opportunity to respond to the reason – therefore satisfied that, given there was a valid reason for the dismissal and Mr Norman was afforded procedural fairness, the dismissal was not harsh, unjust or unreasonable – would also dismiss Mr Norman’s application for unfair dismissal. Appeal by Lion Dairy and Drinks Milk Limited against decision of Bartel DP of 10 February 2016 [[2016] FWC 840] Re: Norman
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