Arthur Thomas Murray v W. H. Bowden Pty Ltd
[1995] IRCA 670
•14 December 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON
INDUSTRIAL RELATIONS ACT 1988 , ss170EA
ARTHUR THOMAS MURPHY v W.H. BOWDEN PTY LTD
No. QI 95/1041
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 14 DECEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1041
QUEENSLAND DISTRICT REGISTRY
BETWEEN: ARTHUR THOMAS MURPHY
Applicant
AND: W.H. BOWDEN PTY LTD
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 14 DECEMBER 1995
THE COURT ORDERS THAT:
1.The time for filing the application be extended to 28 February 1995.
2.The application be allowed.
3.The respondent pay to the applicant the sum of $2052 within 14 days of this order.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1041
QUEENSLAND DISTRICT REGISTRY
BETWEEN: ARTHUR THOMAS MURPHY
Applicant
AND: W.H. BOWDEN PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 14 DECEMBER 1995
REASONS FOR JUDGMENT
Findings
The applicant is now aged 47, having been born on 14 July 1948. He has worked in butchering for practically all his working life.
The applicant took up employment with the respondent as a butcher in early March 1994 at its Brendale, Queensland premises. On 27 June 1994, while working at the respondent's premises, he suffered an injury to his back. After some treatment, he found he could not carry out his work duties. The applicant applied for, and received, workers' compensation payments from the Workers' Compensation Board of Queensland.
In August 1994 he underwent some rehabilitation at the Belmont Rehabilitation Centre, Brisbane. In about September or October 1994 the applicant spoke to a Mr Orreal, the manager of the respondent's butchery about his employment. Mr Orreal suggested he should not come back to work until he had a clearance from the Workers' Compensation Board. The applicant was interested in returning to work, under supervision, under what is known as a Work Assessment Scheme. The applicant spoke to Mr Orreal several times in this period, but was not encouraged by what he heard from Mr Orreal. Mr Orreal said words to the effect that he (the applicant) could not expect Orreal to put someone off, and he (the applicant) to be put back on.
Subsequently, but before January 1995, the applicant spoke to the principal of the respondent, Mr Bowden, and asked to be allowed to return to work under the Work Assessment Scheme. Mr Bowden (who did not give evidence before me) refused his request.
On 9 January 1995, while the applicant was still in receipt of workers' compensation payments, he received a letter (exhibit A1) from the respondent under the hand of Mr Orreal in which he was given one weeks notice terminating his employment, with effect from 13 January 1995. The first paragraph of that letter stated:
"Since the introduction of late night trading in Queensland, this business has suffered a significant downturn, forcing a complete and comprehensive restructuring of staff and other costs."
I am not satisfied that the respondent has proved that the real reason for the applicant's termination was one related to its operational requirements, as the letter asserts. I suspect that what motivated the respondent to act as it did was the fact that the applicant had by then been absent from work and in receipt of workers' compensation for a lengthy period, with there being no end in sight.
The applicant's termination was unlawful, the respondent having no valid reason for the termination. The respondent is in breach of subsection 170DE(1) of the Industrial Relations Act 1988. In the circumstances, it is unnecessary for me to deal with an argument addressed to me about the effect of regulation 30D of the Industrial Relations Regulations relating to termination on grounds of temporary absence from work.
Following his termination, the applicant remained in receipt of workers' compensation. In March 1995 he underwent a Work Assessment Scheme at another butchery, but discovered he could not cope with the usual duties of his calling. The Workers' Compensation Board paid out his claim, with a lump sum payment, in September 1995. Apart from the work performed in March 1995, the applicant has not worked at all since his back injury.
The respondent ought to have permitted the applicant to return to work with it, with the connivance of the Workers' Compensation Board, to allow a true assessment of his residual working capacity. Had it done so, it would have ascertained, within short order, that the applicant was unlikely to be able to carry out his employment with it. That position would have obtained within about four weeks, I find, of a return to work under supervision in mid January 1995. After a proper assessment, the respondent is likely to have had a valid reason connected with the applicant's capacity to terminate his employment.
Remedy
The applicant's counsel eschewed reinstatement as a remedy. That was a proper stance to take. The applicant's back condition means reinstatement is impracticable.
In respect of compensation, I consider it appropriate to fix it by reference to the remuneration the applicant would have received if the respondent had not terminated his employment and he had been allowed to return to work to attempt to carry out his normal duties, for a four week period from mid January 1995. It appears to me that I am not constrained by authority to deduct the workers' compensation payments actually paid to the applicant in this period, and I do not do so.
Exhibit A3, a form submitted by the respondent to the Workers' Compensation Board, reveals that the applicant's gross average weekly earnings during the period of his employment with the respondent, before injury, were $513.07. I adopt this figure, as I am not satisfied on the evidence with the figure the applicant claimed he was in fact being paid. On the basis that the applicant would have been paid his ordinary rate of pay during the period I have selected, I assess appropriate compensation to be the (rounded-off) sum of $2052.
Extension of Time
There was no opposition by the respondent to an extension of time being granted to the applicant to 28 February 1995 (the actual date of filing) to file his application. I extend time accordingly.
Orders
I order that:
The time for filing the application be extended to 28 February 1995.
The application be allowed.
The respondent pay to the applicant the sum of $2052 within 14 days of this order.
I certify that this and the preceding THREE (3) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 14 December 1995
Counsel for the Applicant: Mr Gorman
Solicitor for the Applicant: Paul Jacko & Co
Appearing for the Respondent: Mr Camp
Solicitor for the Respondent: Thompson King Connolly
Date of hearing: 6 December 1995
Date of judgment: 14 December 1995
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