Austin v BHP Building Products

[1997] IRCA 66

DECISION NO:66/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - temporary ABSENCE from work due to INJURY - COMPENSATION.

Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988) Ss 170DC, 170DE(1), 170DF(1)(f), 70EA, 170EDA
Workplace Relations Regulations Reg 30D(2)

Neville Bruce AUSTIN -v- BHP BUILDING PRODUCTS 
DI 1061 of 1996

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH (heard in Darwin)
DATE:              27 February 1997

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          

No. DI 1061 of 1996

BETWEEN:  

Neville Bruce AUSTIN
  Applicant

AND:  

BHP BUILDING PRODUCTS
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH (heard in Darwin)

DATE:  27 February 1997

THE COURT ORDERS THAT:

1.          The respondent pay to the applicant compensation in the sum of $2,802.00 within 14 days of the date of this order.

Note:    Settlement and entry of Orders is dealt with by Order 36 of the  Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

DI 1061 of 1996

BETWEEN:

Neville Bruce AUSTIN
Applicant

AND:

BHP BUILDING PRODUCTS
Respondent

REASONS FOR DECISION

27 February 1997  R. D. FARRELL JR

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Neville Austin (“Mr Austin”), by the respondent, BHP Building Products (“the Company”). It was not contended that reinstatement was practicable.

Findings as to the Facts.

The business of the Company is the manufacture of building materials. Mr Austin began working for the Company in April 1995. He had previous experience in the manufacture of building materials, and left another employer to take the job. He had been recommended for the job by another employee of the Company and was interviewed by the Company’s Factory Supervisor, Mr Stephen Drawwater. Mr Drawwater decided to hire Mr Austin, subject to his undergoing a medical examination in accordance with the Company’s standard procedure.

Mr Austin was examined by Dr S.J. Linco on 3 April 1995. In his report, Dr Linco noted the following:

“Poor vision left eye

Needs to watch blind spot...

Has congenital problem both calf muscles. This does not affect work.”

Mr Austin was employed after this report was provided to the Company, apparently with the approval of the then Site Manager. He worked as a machine operator. In accordance with the Company’s usual practice, there was an initial three month period of casual employment after which Mr Austin became a permanent employee.

Mr Austin says he found the duties required of him “not severely demanding”, though it involved some lifting. Mr Drawwater says Mr Austin performed his duties in a satisfactory manner, and was “quite a reasonable” employee. Mr Drawwater does not recall being aware of the congenital problem with Mr Austin’s calf muscles. He recalls that Mr Austin had told him that his limp was due to an injury he had sustained in a previous job.

Mr Drawwater noticed occasions when Mr Austin’s limp seemed to be causing him difficulty. Examples were when Mr Austin was carrying particularly heavy stock, or when he had to climb over stock bundles while helping to lift heavy building products as part of a team. While these tasks were not explained to me in detail, what I heard raised questions in my mind as to whether they were properly part of a safe system of work.

Toward the end of 1995, Mr Austin approached Mr Creacy, the Site Manager, and advised him that he needed to undergo a knee reconstruction operation to remedy the cruciate ligament injury to his knee that he suffered in his previous employment. He sought three months’ unpaid leave in which he could have the operation and recuperate. He expected to receive compensation from his former employer’s insurer for the period he was away from work. The operation was scheduled for 29 February 1996.

After considering the option of requiring Mr Austin to resign and reapply for the position when he was fit, Mr Creacy decided to “look after him” and agreed to approve the leave. While it was usual in those circumstances for the Company to require a medical clearance before permitting an employee to resume work, it seems Mr Austin was not told of that requirement at that time.

Mr Drawwater and Mr Creacy said the policy of requiring a clearance was motivated  by the duty of care owed by the Company to its employees to ensure that they do not risk further or aggravated injury by working when they are not fit to do so. I accept that this is, in principle, a reasonable policy on the part of the Company.

Mr Austin went on leave in late February 1996 and underwent the operation performed by his surgeon, Mr Ross Kennedy. There were complications after the first operation, requiring further surgery and setting back Mr Austin’s recuperation by about a month.

On 11 April 1996, Mr Kennedy issued a medical certificate certifying that Mr Austin was unable to work from 29 February to 14 April 1996 owing to surgery on his right knee, but that he would be fit to resume seated work on 15 April for four weeks.

Mr Austin provided a copy of the first medical certificate verifying his inability to work to his former employer’s insurers and also to the Company. Mr Creacy does not recall receiving the certificate, but does recall searching for it later when Mr Austin claimed to have provided the Company with a copy. Mr Austin recalls being told by someone from the Company not to bother bring in the certificates. Mr Creacy confirms he did not regard it as necessary for Mr Austin to prove to the company that he was unfit for work as a result of the operation, but he does not believe he ever positively told Mr Austin not to provide the Company with his doctor’s medical certificates. I accept however that Mr Austin genuinely believed that the Company did not wish him to provide certificates from his doctor to verify his unfitness for work, and that this belief arose from his dealings with either Mr Drawwater or Mr Creacy following his operation, whether that was their intention or not. As a result, none of Mr Kennedy’s later certificates were provided to the Company.

On a number of occasions following his operation, Mr Austin approached Mr Creacy and advised him that he was having difficulties obtaining payment from his former employer’s insurer for his time off work following the operation, so that he was in financial difficulties. Mr Creacy agreed to convert Mr Austin’s unpaid leave into sick leave. Later, when Mr Austin’s accrued sick leave had expired, Mr Creacy granted a further three weeks’ paid sick leave, on the basis that Mr Austin would repay the additional sick leave payments on receipt of the money due to him from his former employer’s insurer.

Soon after, Mr Austin received a sum from the insurers, but it was not as much as he had expected. He was not therefore in a position to repay the advanced sick leave. Mr Austin therefore acknowledges that three weeks’ pay is due to the employer and should be deducted from any amounts awarded to him pursuant to this application.

On 22 April 1996, Mr Austin again visited the Company to tell them that his leg was still not sufficiently recovered to enable him to resume work.

On this occasion, Mr Drawwater offered Mr Austin light duties involving clerical work. Mr Austin, without explanation, rejected this proposition in robust terms saying, among other things, that clerical duties would “drive him up the wall”. While it seems Mr Austin and Mr Drawwater were on good terms, and Mr Austin says his response was intended in a joking tone, Mr Drawwater was somewhat offended by Mr Austin’s refusal of this offer, which he had extended with Mr Austin’s interests in mind.

Mr Austin explained at the hearing that he had been prescribed a regular program of exercise sessions, at home and at the gymnasium, and also had to attend his physiotherapist on a regular basis, so that any time he spent at work would have often been disrupted. In the circumstances he thought it more appropriate to decline the offer of light duties, and concentrate on his rehabilitation program. He was also conscious that Mr Drawwater already had an employee on light duties. He assumed therefore that there was unlikely to be useful work available for him. Mr Austin instead applied for and was given three weeks’ annual leave from 14 May 1996, with his return to work scheduled for 3 June 1996.

On 7 May 1996, Mr Kennedy issued a medical certificate certifying that Mr Austin was unable to work from 14 April to 14 May 1996.

Mr Creacy went on annual leave in late May.

On 3 June 1996, Mr Austin presented himself at the Company, intending to resume work. Mr Drawwater told Mr Austin that he could not begin work until he had obtained a medical clearance. Mr Austin did not recall any previous reference to the need for a clearance, but responded that it was not a problem. Mr Drawwater made an appointment for Mr Austin at 11:30 am that day with Dr Brownjohn, a doctor the Company was then using for its medical examinations.

Mr Austin stayed in the lunch room at the Company’s premises while waiting for the appointment. In the course of the morning, he asked Mr Drawwater for light duties, but was told there were none available.

Mr Austin was examined by Dr Brownjohn and then returned to the Company. Dr Brownjohn had not issued him with a certificate. Mr Austin was under the impression that he was fit to resume work, and told Mr Drawwater that Dr Brownjohn would be calling the Company that day. However, when Mr Drawwater spoke to Dr Brownjohn, Dr Brownjohn indicated that he would not give Mr Austin a clearance to work, and that he was concerned about the congenital condition Mr Austin had. He said that Mr Austin could not get up from a squat, and that he doubted that Mr Austin would be able to do so, even when his knee had fully recovered. Mr Austin was sent home, at least until Mr Creacy returned from his holidays.

Mr Austin saw his own doctor, Mr Kennedy, the next day. On 4 June 1996, Mr Kennedy issued a medical certificate certifying that Mr Austin was unable to work until 14 June 1996, but that he would be fit to resume normal work on 17 June 1996. Mr Austin returned to his rehabilitation program with renewed vigour.

On 11 June 1996, Mr Kennedy issued a further medical certificate certifying that Mr Austin was unable to work in the period from 14 June to 30 June 1996, but that he would be fit to resume work on 1 July 1996.

On 16 June 1996, Dr Brownjohn prepared a report for the Company concerning Mr Austin, in the following terms:

“Mr Austin suffered a right knee injury in 1992. An anterior cruciate ligament repair was performed by Mr Ross Kennedy on the 1st of March, 1996. Mr Austin also has a condition he calls “familial spastic paraplegia” which he says causes stiffness of the calf muscles and a tendency for him to drag his toes.

When assessed by me on the 3rd of June, 1996 Mr Austin had a flat footed gait. On examination there was moderate laxity of his anterior cruciate ligament and weakness and restriction of movements of both his legs. He was unable to squat or stand from a squatting position without support.

I spoke to Mr Kennedy who, with respect to the knee operation, was surprised that he was not functioning better.

In my opinion Mr Austins’ physical limitations are in part due to the “familial spastic paraplegia”. Full recovery from his knee operation would still leave him with restricted movement and reduced power in both legs and therefore unable to lift correctly. With heavy lifting he is at significant increased risk of injury to both his back and his knees...”

This report had been received by the Company by 19 June 1996, and Mr Creacy telephoned Dr Brownjohn and discussed the report with him. Mr Austin did not see the report until after his dismissal. Mr Creacy’s recollection of his discussion with Dr Brownjohn was to the effect that Mr Austin’s knee was not “100 percent”. Mr Creacy recalls a reference to his paraplegia. I gained the impression from Mr Creacy’s evidence that he did not understand Dr Brownjohn to be saying that Mr Austin would be permanently unfit, notwithstanding the terms of the report.

Mr Austin arranged to be examined again by Dr Brownjohn on or about 18 June 1996. He discussed the arrangement of this further examination in a telephone conversation with Mr Creacy, as a result of which Mr Austin met the cost of the appointment.

Dr Brownjohn again declined  to certify Mr Austin fit for work.

On 19 June 1996, Mr Austin again attended the Company offices, and spoke to Mr Creacy and Mr Drawwater. He sought a new starting date, saying that he felt able to work. They reiterated that he would need a medical clearance before he could resume work. Mr Creacy added that, while he was prepared to extend Mr Austin’s leave, they were reaching a time when they would have to “sort out his status” and consider his position in the business. Mr Austin was told that if he was unable to obtain a clearance, the Company would need to consider “taking him off the books”.

Mr Austin says he was taken aback when Mr Creacy raised this possibility. He had regarded his employment with the Company as safe. Mr Creacy asked him to “sleep on it” and asked him to come back the next day to discuss it further, because they needed to make a decision.

On 20 June 1996, Mr Austin returned to meet with Mr Creacy and Mr Drawwater.

Mr Creacy asked Mr Austin whether he wanted more time to obtain a clearance. Mr Drawwater recalls Mr Austin responding that it wouldn’t do any good, and that he didn’t believe he would ever be passed fit. Mr Creacy’s recollection was that Mr Austin “laid his cards on the table”, saying that he didn’t think he had any chance of being cleared for work. Mr Austin does not recall making such statements, but I accept that something of the sort was said.

Mr Austin’s own view, by 20 June 1996, was that he was fit to start work again. To the extent that he was suffering from a balance problem, he believed it was the same problem he had had when he started work for the Company, having been certified fit to work by Dr Linco. However, following his examinations by and discussions with Dr Brownjohn, he appears to have believed that Dr Brownjohn’s view of his congenital disability was such that Dr Brownjohn would never certify him fit for work, notwithstanding a full recovery from his knee surgery.

Mr Austin says he made no mention of Mr Kennedy’s more positive prognosis to the Company because it was his understanding that he had to obtain the clearance from Dr Brownjohn, the company doctor. He had no solicitor acting for him at that time. Mr Creacy says he would have accepted a clearance from any medical practitioner, but concedes he probably didn’t expressly say so to Mr Austin. Mr Drawwater says he isn’t sure whether a certificate from another practitioner would have been acceptable or not. In his six and a half years with the Company, he was not aware of an occasion when a clearance from other than the Company doctor was accepted by the Company.

Mr Creacy concluded that the Company would have to look at terminating Mr Austin’s employment, and asked him whether he preferred to resign. Mr Austin declined to do so. Mr Creacy readily accepts that the termination was at his initiative and I accept that his motives in giving Mr Austin the opportunity to resign were not improper.

Mr Drawwater says there was then a “stalemate”. Mr Austin recalls saying something further, enquiring as to other alternatives and indicating his wish to keep his job. He found the prospect of losing his job in these circumstances “pretty upsetting”.

There was no discussion about the possibility of light duties.

Mr Creacy then advised Mr Austin that they would lay him off the books, because he wouldn’t get a clearance to work.

Mr Creacy drew up and signed a Department of Social Security Separation Certificate for Mr Austin, which certified that his employment was terminated due to “unsuitability for this type of work” by reason of “medical grounds”.

Mr Austin filed an application in this Court the next day.

Mr Austin says he was later told by Mr Kennedy that he was fit for work, though he never obtained further certification of that fact. The compensation payments from his former employer’s insurer concluded on 1 July 1996, on the basis that he was fit for work after that date.

By late September, Mr Austin succeeded in obtaining employment as an installer of air-conditioning ducting. He describes the work required of him in his new employment as more physically demanding than that required of him before his dismissal, requiring him for example to carry air-conditioning ducting up and down ladders.

The Issues

Mr Austin contends that he was dismissed in breach of Sections 170DE(1), 170DF(1) and 170DC of the Act. He claims he was dismissed for a reason which was not valid, and for reasons including his temporary absence from work because of illness or injury, or physical disability.

The Company contends that Mr Austin was dismissed because of his physical disability as at 20 June 1996, and his unwillingness to continue with rehabilitation for that physical disability. It contends that Mr Austin’s disability did not permit him to meet the inherent requirements of his position, for the purposes of Section 170DF(2).

Section 170DF(1)(a): Temporary Absence From Work Because of Illness or Injury

Mr Austin contends that he was dismissed for reasons including a temporary absence from work because of illness and injury.

Counsel for the Company relied upon the fact that Mr Creacy had offered Mr Austin more time in which to obtain the clearance before terminating his employment. He only proceeded to terminate the employment after Mr Austin’s response to the effect that further time would not do any good and that he didn’t believe that he would ever get a clearance.

Counsel for Mr Austin submitted that Regulation 30D(2) of the Workplace Relations Regulations was applicable. Subregulation (2) provides that an employee’s absence from work because of illness or injury is taken to be a temporary absence if, due to illness or injury, the employee is on authorised leave.

I am not satisfied that this regulation has application to these facts. Mr Austin received an extension to the initial three months’ leave authorised by his employer, which would have expired in late May. By 20 June 1996, Mr Creacy was considering whether to further extend that leave. Even if it were argued that Mr Austin had been granted an indefinite extension to his leave pending his production of a clearance to work, it would be a surprising result if the authorisation of such leave for an indefinite period could have the effect of deeming the absence temporary.

Section 170EDA(2) confers the onus on the employer to prove that the employment was not terminated for reasons that included a temporary absence from work because of illness and injury, failing which the termination is taken to have contravened subsection 170DF(1).

Mr Creacy relied upon Mr Austin’s statement to the effect that he believed he would never obtain a clearance, so that Mr Creacy concluded that Mr Austin’s absence would be permanent. There was evidence before me that suggested otherwise.

Mr Austin’s response was based on a mistaken apprehension of the position. He thought he had to satisfy Dr Brownjohn that he was fit to work, whereas it appears his own surgeon’s clearance would have been sufficient. The evidence suggests such a clearance could have been obtained by 1 July 1996. At the time of Dr Brownjohn’s written report, he was of the opinion that Mr Austins’ physical limitations were only in part due to the “familial spastic paraplegia”, and partly because he had not fully recovered from his knee operation. While Dr Brownjohn gave some views as to what the position might be after a full recovery, we do not know whether those views  would have been confirmed by an examination after full recovery.

On the evidence before me, therefore, I was not satisfied that it was more probable than not that the absence from work would not have been temporary.

Accordingly, I find the termination to have contravened subsection 170DF(1)(a).

Other Issues

I was also not satisfied on the evidence before me that Mr Austin’s disability as at 20 June 1996 prevented him from meeting the inherent requirements of his position. Again, the onus in this matter is on the Company. There was no evidence establishing that Dr Brownjohn was aware of the requirements of Mr Austin’s position. The mere absence of a medical clearance is not evidence of disability. There was some broad evidence from Mr Drawwater and Mr Austin as to the requirements of the position, but it was insufficient to enable me to make a judgment that Mr Austin would have been prevented by his condition from meeting those requirements, given his assertions that he felt able to do the job. I therefore find the termination to have contravened subsection 170DF(1)(f).

It is unnecessary for me to decide whether there has been a breach of Section 170DE. I am satisfied that Section 170DC was not breached.

Compensation

In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

Counsel for the Company contend that there is no evidence before the Court proving that the applicant would have obtained a clearance and returned to work with the Company, had he not been dismissed. Counsel for the Company correctly point out that the onus is on Mr Austin to prove his loss.

The evidence includes Mr Kennedy’s certification that Mr Austin would be fit for work from 1 July 1996, Mr Austin’s evidence that Mr Kennedy gave him a “verbal clearance” and the evidence that Mr Austin commenced a more physically demanding job on 23 September 1996. There was also evidence that he was in receipt of unemployment benefits, rather than disability benefits, from the Department of Social Security after 1 July 1996.

On balance, I am satisfied that it is more probable than not that Mr Kennedy would have certified Mr Austin fit for work on 1 July 1996.

Counsel for the Company also contended that Mr Austin did not take the necessary steps to mitigate his loss. The Court heard evidence that Mr Austin registered with the Commonwealth Employment Service (CES) and checked the CES boards and newspaper for positions in the fields where he had experience. On one occasion he rang up about four or five companies in his industry enquiring for positions. As a general proposition, I accept that Mr Austin took reasonable steps to mitigate his loss.

However, there was additional evidence that Mr Austin travelled to Queensland for five or six weeks in August and September 1996, during which time he conceded he wasn’t looking for work. I must conclude, therefore, that for at least five weeks between his dismissal and obtaining new employment, Mr Austin was not seeking to mitigate his loss. I will therefore deduct those five weeks from the compensation he would otherwise have been awarded.

The Company accepted that a fair assessment of Mr Austin’s average gross weekly earnings would be $650 per week. My review of Mr Austin’s pay details from his new employment supports his assessment that his average weekly earnings in his new employment are similar to his earnings with the Company. Mr Austin was unemployed for thirteen weeks and one day between his dismissal on 20 June 1996 and his commencing his new employment on 23 September 1996. His loss of income over that period would therefore have been $8,580. However, his loss was diminished by the $1,045 he received in termination pay. The three weeks’ advance sick leave due to the Company, which the pay records indicate was worth $1,483, must be deducted, as must the five weeks he spent in Queensland when he wasn’t seeking to mitigate his loss, worth $3,250.

Counsel for Mr Austin sought additional compensation for the distress suffered by Mr Austin in the circumstances of his dismissal. I am not satisfied that in the circumstances of this case the distress suffered by Mr Austin was greater than that necessarily suffered by any dismissed employee and will not award such additional compensation.

Conclusion

The loss for which Mr Austin can be compensated is therefore $2,802, and I will order that the Company pay Mr Austin that amount.

I certify that this and the preceding 13 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:  27 February 1997

APPEARANCES

Counsel appearing for the applicant:     Mr A. Woodcock

Solicitors for the applicant:  Mildrens

Counsel appearing for the respondent:  Mr M. Spargo

Solicitors for the respondent:  Cridlands

Dates of Hearing:  17 & 18 February 1997

Date of Judgment:  27 February 1997

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          

No. DI 1061 of 1996

BETWEEN:  

Neville Bruce AUSTIN
  Applicant

AND:  

BHP BUILDING PRODUCTS
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH (heard in Darwin)

DATE:  27 February 1997

THE COURT ORDERS THAT:

1.          The earlier order made in this matter at 12.00pm on 27 February   1997 in Perth be set aside.

2.          The respondent pay to the applicant compensation in the sum of $2,022.00 within 14 days of the date of this order.

Note:    Settlement and entry of Orders is dealt with by Order 36 of the  Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

DI 1061 of 1996

BETWEEN:

Neville Bruce AUSTIN
Applicant

AND:

BHP BUILDING PRODUCTS
Respondent

SUPPLEMENTARY REASONS FOR DECISION

27 February 1997  R. D. FARRELL JR

Earlier today, I made orders for the payment by the respondent to the applicant of compensation pursuant to Section 170EE of the Workplace Relations Act 1996, and published reasons for decision.

Counsel for the respondent has since brought to my attention an error in my calculation of the amount of compensation.

Having stated that I was satisfied that it is more probable than not that Mr Austin would have been certified fit for work on 1 July 1996, I then go on to calculate his loss of income from 20 June 1996, the date he was dismissed, rather than from 1 July 1996, the date at which he became fit to work.

This was, as I think is apparent on the face of my reasons, an oversight on my part. As the order has not yet been entered, it is an oversight I am empowered to rectify under Order 35 Rule 7 of the Court’s Industrial Relations Court Rules.

Accordingly, I will recalculate the compensation payable as follows:

·   Mr Austin lost income for 12 weeks between becoming fit for work as of 1 July 1996 and commencing new employment on 23 September 1996. His loss of income over that period, at $650 per week, would therefore have been $7,800.

·   His loss was diminished by the $1,045 he received in termination pay, which must be deducted.

·   The three weeks’ advance sick leave due to the Company, worth $1,483, must be deducted.

·   The five weeks he spent in Queensland when he wasn’t seeking to mitigate his loss, worth $3,250, must also be deducted.

Conclusion

The loss for which Mr Austin can be compensated is therefore $2,022.00

I certify that this and the preceding 2 pages
are a true copy of the supplementary reasons
for decision of Judicial Registrar R.D. Farrell.

Associate:
Dated:  27 February 1997

APPEARANCES

Counsel appearing for the applicant:     Mr A. Woodcock

Solicitors for the applicant:  Mildrens

Counsel appearing for the respondent:  Mr M. Spargo  

Solicitors for the respondent:  Cridlands

Dates of Hearing:  17 & 18 February 1997

Date of Judgment:  27 February 1997