Anna MacKowaik v Kimberly-Clark Australia

[1995] IRCA 473

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - PHYSICAL DISABILITY - Inherent requirement of the particular position - HARSH - The effect on a person of the termination of his or her employment is a factor to be taken into account in determining whether the termination of employment is HARSH, but it is not necessarily determinative.

Industrial Relations Act 1988 ss 170DC, 170DE, 170DF, 170EA, 170EDA

Bostik (Australia) Pty Ltd -v- Gorgevski (1) (1992) 41 IR 452

Anna MacKowaik -v- Kimberly-Clark Australia

No. NI  1894 of 1995

COURT:       PATCH JR
PLACE:       SYDNEY
DATE:          7 SEPTEMBER 1995
INDUSTRIAL RELATIONS COURT

OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 1894 of 1995

BETWEEN:

Anna MACKOWIAK
Applicant

AND:

KIMBERLY-CLARK AUSTRALIA
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY
DATE:          7 SEPTEMBER 1995

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)

This is an application under section 170EA of the Industrial Relations Act ("The Act"). The applicant seeks the following orders:

1. An order requiring the respondent to reinstate her in employment; and

1. An order that the respondent pay her compensation.

The applicant makes three submissions. The primary submission is that the termination of her employment was a breach of section 170DF(1)(f) of the Act. The second submission is that there was no valid reason for the termination of her employment, and the third submission is that the termination of her employment was a breach of section 170DE of the Act, in that it was harsh or unjust or unreasonable.

Section 170DF(1) of the Act reads as follows:

"An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:"

and there then follows a list. 

Subsection (f) sets out the following prohibited reasons:

"Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin."

The applicant contends that the termination of her employment was for reasons of "physical disability".  The respondent agrees with that. 

Subsection (2) of section 170DF is as follows:

"Subsection (1) does not prevent a matter referred to in paragraph 1(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position."

Section 170EDA(2) of the Act places the onus of proof on employers to prove that, if a persons' employment has been terminated for reason of a physical disability, that reason was part of the inherent requirements of the particular position.

In other words, the onus is on the respondent employer to prove that the physical disability (in connection with which the application in this case was undoubtedly dismissed) resulted in her not being able to perform the inherent requirements, or some inherent requirement, of  her particular position.

The applicant's physical disability had to do with a sore shoulder and neck, which restricted her ability to lift heavy goods and to lift anything above approximately shoulder height, to stretch, to turn and to perform rapid physical duties.

I am satisfied on the evidence that that physical disability prevented the applicant from performing a number of essential aspects of her job. 

She worked on a production line involved with the production of facial tissues.  She was unable to at all times, particularly when the production line was working at full capacity, to work as quickly as she could work before she suffered the injury which caused the physical disabilities.  As a result of her being unable to perform the full range of duties and to perform those duties as quickly as before, production was slowed down and the other workers on the same production line were unable to rotate positions on the production line to the same extent as they had been doing before.

It is, in any factory, essential that a production line work as efficiently as is reasonably possible. 

Furthermore, the evidence of Mr Langer establishes to my satisfaction that the need to rotate positions was for ergonomic reasons.  It was necessary for the physical well-being of the other workers in the production line to reduce the physical strain on them caused by doing the same job in the same place, day in and day out. 

I am satisfied therefore that the applicant, although dismissed for a physical disability, was dismissed because of a physical disability which meant that she could not perform the inherent requirements of her position. The respondent has therefore discharged its onus under section 170DF(2) of the Act.

It follows, in the particular circumstances of this case, that the respondent has also discharged the onus which it bears to prove that there was a valid reason for the termination of the applicant's employment in respect of section 170DE(1) of the Act. That valid reason was the applicant's inability to perform the full range of duties, her inability to perform at normal speed, and the consequent effect that that had on the productivity of the respondent's production line, and the possible deleterious effects that that had on the well-being of fellow workers as a result of the workplaces not being able to be rotated as frequently as was desirable.

When the applicant was injured, the respondent, initially, did not introduce a rehabilitation program.  The evidence of Mr Murray Smith, who is now the Business Group Manager for the respondent and who, from April 1993 until June 1995, was the Human Resources Manager, Textile Mills, based at the respondent's Warwick Farm site where the applicant worked, was to the effect that rehabilitation plans are not always put into place in the early days following an injury, particularly where the compensable basis of the claim is in question. 

To my mind that is not good policy.  If someone is injured, the sooner a proper rehabilitation plan is put into effect the better.  That is desirable, not only form the point of view of good industrial relations, but from the point of view of minimisation of liability for an employer and minimisation of harm to a worker.

Be that as it may, a rehabilitation plan was eventually put into effect in December, approximately 4 months after the applicant's injury became apparent.  That rehabilitation plan  was done after consultation with the applicant and the union.  At the end of that rehabilitation plan, the applicant not being successfully rehabilitated, but some progress having been observed by those concerned, a second rehabilitation plan was put into effect.

That second rehabilitation plan continued up to just prior to the decision to terminate the applicant's employment.  I am satisfied that a proper search was made for alternative employment for the applicant, not only at the Warwick Farm site but at other work places controlled by the respondent company, and that that search for alternative employment was unfortunately, unsuccessful. 

It was made quite clear to the applicant that her continued employment was in question.  The reason why her continued employment was in question was also made clear to her.  This was done months in advance of the decision to terminate her employment.

There is therefore no breach of section 170DC of the Act.

Nor could it be said that the termination of the applicant's employment was "unjust" within the meaning of section 170 DE(2).

In other words, there was no procedural unfairness.

The applicant submits that the termination of her employment was "harsh" within the meaning of subsection 170DE(2) of the Act.  This is because of the effect that the termination of employment has had upon her, namely it has left her unemployed and with unpaid medical bills. 

True it is that the effect on a person of the termination of his or her employment is a factor to be taken into account in determining whether the termination of employment is "harsh" within the meaning of section 170DE(2) of the Act, but it is not necessarily a determinative factor. (See Bostik (Australia) Pty Ltd -v- Gorgevski (1) (1992) 41 IR 452, per Sheppard and Herrey JJ, at 459).

It must always be the case that persons whose employment is terminated do suffer some hardship, simply because they are unemployed.

It follows that that mere fact alone cannot itself constitute a "harsh" termination of employment in the vast majority of cases.  The Parliament could not have intended that the word "harsh" be given a meaning which would result in almost every termination of employment being regarded as "harsh". 

So, although I am naturally sympathetic to the plight of the applicant, in my opinion the termination of her employment was not "harsh" within the meaning of section 170DE(2) of the Act. Nor is there any reason why it was "unreasonable".

It follows that the termination of the applicant's employment was not unlawful. 

The application is therefore dismissed.

I certify that this and the preceding six (6) pages are  a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:     Caroline Sternberg
Date:              20 September 1995

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 1894 of 1995

BETWEEN:

Anna MACKOWIAK
Applicant

AND:

KIMBERLY-CLARK AUSTRALIA
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY
DATE:          7 SEPTEMBER 1995

MINUTES OF ORDER

THE COURT ORDRS THAT:

1. The application be dismissed.