Thursday, 06 March 2014 1:07pm
Two train drivers - one with post-traumatic stress disorder (PTSD) and another who suffered a stroke - were fairly sacked after being off work for more than 18 months, the Fair Work Commission has ruled.
The FWC found the two workers, from different states and companies, were unable to perform the inherent requirements of their pre-injury roles, or any other roles within their companies.
In the first case, the V/Line Pty Ltd train driver took leave in December 2010 after developing PTSD, which was caused by a number of incidents.
The worker was involved in 20 reported near misses, collisions and fatalities during his career, including one where his train struck a pedestrian at high speed, and another where his train struck fallen trees and derailed, the FWC heard.
His train narrowly missed two boys and narrowly missed a car in separate incidents in 2010.
By late 2012 he hadn't returned to work, and was sacked after two medical reports showed he still suffered PTSD and couldn't return to pre-injury duties then or in the foreseeable future.
The reports also stated the worker would be unfit to perform any other role in the rail safety environment, including office work.
The worker claimed unfair dismissal, arguing his symptoms might have improved, and he could have been retrained in alternative duties.
The employer argued it had a valid reason to dismiss the worker based on the medical reports.
In Melbourne, Commissioner Nick Wilson found there was no evidence the worker had "ever performed any other duties" other than train driving.
"As a result, the argument does not arise that there could be an easy and fair accommodation of his wishes to be retrained by excising from his job those duties which caused, or had the potential to cause, distress or anxiety," he said.
He found the employer had rightly determined the worker had the "potential to affect the safety and welfare of other employees" if he returned to work.
"I am satisfied that the dismissal of [the worker] from employment with [the employer] was neither harsh, unjust or unreasonable and as a consequence he was not unfairly dismissed."
In the second case, the Aurizon Holdings Ltd train driver suffered a stroke or seizure in October 2011 and had a number of brain surgeries. He subsequently developed epilepsy and hasn't returned to work.
In Brisbane, the FWC heard the worker applied for a number of alternative roles within the company, but was unsuccessful.
He was sacked in May 2013, after the employer found he was permanently restricted from performing train driving duties.
The worker claimed unfair dismissal, arguing the employer should have offered him an alternative position within the company.
The employer claimed it had a legal obligation to follow the National Health Standard guidelines, which stated a person in a safety critical category one role (like the worker) wasn't fit for duty if they had suffered a seizure in the previous five years (later adjusted to 10 years).
Commissioner Paula Spencer found the employer, in accepting the worker's medical restrictions, "was acting within the terms of their policy and the National Standard".
"Failure to do so may have put the [worker], and potentially third parties, at risk if the [worker] had a further seizure and may have made the [employer] liable for penalties for failing to comply with a requirement under the Rail Safety Act," she said.
She also found the employer "was under no strict legal or statutory obligation to arbitrarily place the [worker] into another position that he was not suitable, or medically fit for".
She found the worker's dismissal wasn't harsh, unjust or unreasonable, and dismissed his claim.
Kevin Rowe v V/Line Pty Ltd [2014] FWC 1437 (3 March 2014)
Stephen Born v Aurizon [2014] FWC 22 (28 February 2014)