AWU-FIME Amalgamated Union v Conagra Wool Pty Ltd
[1994] IRCA 39
•15 Sep 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 162/94
VICTORIA DISTRICT REGISTRY
B E T W E E N :
AWU-FIME AMALGAMATED UNION AND
JOSEPH PATRICK FARRELL
Applicants
A N D :
CONAGRA WOOL PTY LTD
Respondent
Reasons for Judgment
15 September 1994 PARKINSON JR
This application is made by the AWU-FIME amalgamated union (“ the union “) and Joseph Patrick Farrell, who for convenience I will refer to as “the applicant”. The applicant was a member of the union at all times relevant to this proceeding. The union and the applicant contend that in terminating the applicant’s employment the respondent contravened S170DF(1) (a) and alternatively S170DE(1) of the Industrial Relations Act 1988 (“the Act”).
The applicant seeks:
a Declaration that the termination of his employment contravenes Division 3 of Part VI A of the Act ;
an Order that the respondent reinstate the applicant to the position he held prior to the termination;
an Order that the respondent pay the applicant compensation in the sum of wages and other benefits lost between the date of termination and the date of reinstatement.
The proceeding occupied 4 sitting days and the following witnesses were called to give evidence:
Mr. J. Farrell - The applicant.
Mr. P. Brockhus - Union Shop steward and co-worker.
Dr. M. Haikerwal - Applicant’s general practitioner.
Mr. G. Wills - Human Resources Manager of the respondent.
Mr. B. Ferguson - Production Manager of the respondent.
Mr. D McCall - Shift Supervisor of the respondent.
Background.
The respondent operates a wool processing plant at Altona, Victoria, in addition to a number of other wool processing operations at locations throughout Victoria and interstate.
The Altona plant runs its wool carbonising section on a 4 shift, 24 hour, 7 day week basis. Each shift is for a duration of 12 hours. The employees work shifts which rotate between day and night shift.
The applicant who is aged 25 years, was employed by the respondent on 28th November, 1991 as a labourer in the respondent’s carbonising section at the Altona plant. Approximately six months later he was promoted to the position of leading hand in that area. Immediately prior to the termination of his employment he had been enrolled in a three year apprenticeship in the wool scouring and carbonising trade and had during the course of his employment completed trade and work related training.
On 30th March, 1994 the respondent terminated the applicant’s employment. He was subsequently reinstated pending the outcome of proceedings in the Australian Industrial Relations Commission (“the Commission”). At the conclusion of the Commission proceedings on 14th April, 1994 the respondent again terminated the applicant’s employment.
The Evidence and Findings of Fact.
The evidence of witnesses for both the applicant and respondent shows that the applicant’s work standard and skill was never under question and did not form any part of the reasons for the termination of employment.
The reason given by the respondent for the termination of applicant’s employment was excessive absenteeism on the part of the applicant. Exhibit W7 extracts from personnel records the history of the applicant’s absences.
The applicant was absent from work for a total of 34.5 days over a two year period between March 1992 to January 1994. Of these absences 14.5 days arose out of illness or injury and were the subject of substantiation either by way of doctor’s certification or statutory declaration. There were however 20.5 days of absence which were not said to be as a result of illness or injury and/or were not substantiated in any way.
The respondent contended that it had given the applicant prior warning as to its dissatisfaction with his absenteeism both verbally and in writing by way of formal written warnings. I accept that such warnings were given. I shall deal with the nature and content of the warnings later in this decision when dealing with the issue of procedural fairness.
On 27th August, 1993 the applicant was given a warning in relation to excessive absenteeism which warning was reduced to writing, however no copy of the document was provided to him.
On 21st January, 1994 the respondent issued the applicant with a final
warning in relation to his absenteeism, which was reduced to writing and signed by management, the applicant and his union representative, although it appears that no copy of the document was given to the applicant or the union.
On 2nd March, 1994 the applicant was absent from work due to a
gastro-intestinal ailment for which a medical certificate was provided.
There was no action taken by the respondent’s management in respect of this absence either at that time or subsequently, and the evidence of Mr
Brockhus the shop steward was that management were aware of the absence and apparently accepted it as being for genuine reasons of illness. This evidence can be found at page 55 of the transcript.
On Saturday 26th March, 1994, the applicant notified the respondent at 6.30a.m that he was unwell and would not be attending work that day. The applicant’s evidence is that the absence was due to a gastro-intestinal ailment, that he informed the respondent of this fact and provided medical evidence in this regard. The evidence was that a medical certificate (exhibit W6) was obtained by the applicant on 27th March, 1994 in respect of his absence from work on the previous day.
The applicant returned to work on Sunday 27th March and evidence was given by Mr. McCall for the respondent that on that day he advised the applicant that his absence was under scrutiny and its legitimacy under question. The applicant in cross-examination denied that he was thus advised, however in view of the lack of recollection of the applicant of most of the detail of conversations held during the period, I prefer the evidence of the witness McCall in this regard. At this point in time the medical certificate in respect of the absence had not yet been obtained by the applicant.
The respondent’s managers then instituted a process for investigating and dealing with the absence. Meetings and discussions were held between various managers of the respondent and then two meetings were held with the applicant, the first on 28th March, 1994 and the second on 30th March, 1994. The applicant’s employment was terminated at the latter meeting. The applicant was unable to recall much of the detail of discussions occurring at either of those meetings. The evidence of the respondent’s witnesses present at those meetings was also startling in its imprecision as to the details of the conversations which occurred. Whilst the respondent’s witnesses gave evidence as to the reasons for the termination and also as to the matters which they had put to the applicant, the applicant’s evidence did not specify what matters were put to him, and indeed in cross-examination he was consistently unable to recall whether or not various matters had been raised.
The evidence of the respondent’s witnesses reveals that management questioned the applicant in relation to his movements on the 26th March, the day of absence from work. Whilst the applicant was unable to recall a large amount of detail of the questions and issues raised by management he was, at page 40 of the transcript, able to recall questioning in general terms as to his actions on that day. At page 43 of the transcript, the following exchange occurred in cross-examination of the applicant:
Mr. Watson: “and do you recall that the company outlined the
circumstances and its view that you had deliberately taken the day
off without justification?
The applicant:“ Yes. The meeting was in relation to that day of
absenteeism, yes.”
The respondent’s witness Mr Wills gave evidence that at the meeting on the 30th March with the applicant, the respondent raised concerns about what were regarded as conflicting statements made by the applicant concerning his absence on the 26th March (trancsript p.80.20). Further, the witness gave evidence that he was not satisfied that the applicant’s illness was justified (transcript p.88.25). See also in this regard the evidence of MR Wills at pages 93 and 118 of the transcript.
Nowhere in the evidence of either the applicant or the respondent is it suggested that any one of the respondent’s managers said or implied that the reason for the termination was the applicant’s temporary absence as a result of illness or injury.
It is apparent from the evidence of the respondent’s witnesses, and I so find, that they did not believe the applicant’s explanation of illness and suspected the veracity of the doctor’s certificate which had been obtained on the day following the absence. In short, they treated the absence as a further example of unauthorised absence on the part of the applicant.
These matters combined with the history of absenteeism, the final warning and what the respondent’s witnesses treated as conflicting explanations for the absence on 26th March, resulted in the termination of the applicant’s employment on 30th March, 1994.
S170DF of the Act.
S170DF(1) of the Act, in so far as is presently relevant, provides:
“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:
(a) temporary absence from work because of illness or injury”.
Counsel for the applicant, Mr. Borenstein, contended that the reason for the termination of employment included the applicant’s temporary absence from work on 26th March, because of illness or injury. He submitted that in so far as the reasons for termination included as one of the reasons the temporary absence from work because of illness, the termination thus contravened S170DF(1)(a) of the Act.
Counsel for the respondent, Mr. Watson, contended however that the reason for the termination was the consistently stated reason of excessive absenteeism. It was clear from the evidence of the respondent’s witnesses and pressed in submissions for the respondent, that what was treated by the respondent as excessive absenteeism did not include a consideration of any of the absences arising out of illness or injury, and further that had the respondent believed that the applicant had been genuinely ill on the 26th March his employment would not have been terminated. This was expressly stated by the witnesses for the respondent both in evidence in chief and in cross - examination. Examples of this evidence may be found at the following transcript references:
Mr. Wills at page 102.20,120.25; Mr. McCall at page 219.10 and Mr. Ferguson at page 195.5.
S170DE (2) places upon the respondent the onus of proving, on the balance of probabilities, that the termination of the employment was not for the reason of temporary absence from work because of illness or injury or for reasons including that reason. The reason which is required to be ascertained is the reason which motivated the employer to terminate the employment and not merely the stated reason. The test is a subjective one. The fact that an employee may have been ill on the day under question does not of itself however establish that the termination was as a result of temporary absence because of illness or injury. This question is to be determined having regard to all of the circumstances of the termination.
One aspect of the evidence which caused me some disquiet was the
transcript of the proceedings before the Australian Industrial Relations Commission on the dispute notification. It is apparent from that transcript that medical examination and medical evidence did have some influence on the outcome of the proceedings before the Commission. However, there was nothing in that material which was of assistance to me in determining the question of the employer’s reasons for the termination of employment on 30th March, 1994. Further, the outcome of the proceedings in the Commission arose out of a process of conciliation and many unexpressed factors and considerations may operate upon parties to that process and lead to a result which is not apparently consistent with a party’s stated position. For this reason I do not consider the transcript of such proceedings helpful in ascertaining the respondent’s reasons for termination of employment on 30th March, 1994. I treat that date as the relevant period for ascertaining the reasons for the termination.
Having regard to my earlier finding of fact that the employer, rightly or wrongly, did take a particular view of the employee’s absence on 26th March, namely that it was not an absence as a result of illness or injury but rather a further incident of unauthorised absenteeism, I am satisfied, on balance, that the reason for the termination was not and did not include the reason that the applicant was temporarily absent from work because of illness or injury. Indeed the reason for the termination was to the contrary, the reason being that the respondent did not believe that the applicant was ill on the 26th March. Therefore, I find that there was no contravention of S170DF(1)(a) of the Act by the respondent.
Both Counsel made submissions in relation to the meaning of “temporary absence” in S170DF(1)(a) and Regulation 30D and 30A. In view of my earlier finding as to the reason for the termination, there is no necessity to deal with this aspect of the submissions and I do not.
S170DE of the Act
The applicant contended further and in the alternative that the termination was not for a valid reason connected with the applicant’s capacity or conduct or based upon the operational requirements of the respondent’s undertaking, establishment or service. The applicant further contended that the dismissal was harsh, unjust or unreasonable having regard to substantive matters and the procedure adopted in bringing about the termination.
I have earlier dealt with the matters said by the respondent to have been the reason for the termination of the employment. They are set out at page 7 herein. They included the respondents’ belief that the applicant was not genuinely ill on the day he was absent from work, that he had given conflicting explanations for his absence and his history of unauthorised absenteeism.
S170DE (1) Valid Reason .
For the employer in this circumstance to be able to establish that it had a valid reason for the termination of the employment it is necessary for it to satisfy the Court that the facts relied upon by the employer which resulted in the termination were true. In this case the Court must be satisfied that the absence from work on 26th March, 1994 was due to unauthorised absenteeism. If it was not, then the termination of employment would not be for a valid reason.
I do not accept the argument put by the respondent’s Counsel that the appropriate test in determining the question of “valid reason” is that adopted by the various English authorities referred to by him im submissions. There is a significant difference in the language used in S57(3) of the Employment Protection Act 1978 (U.K.) and that used in S170DE of the Act.
S57(3) provides inter-alia that it is for the employer to show what was the reason. This is quite different to the requirement in S170DE(1) which prohibits termination of employment except where for a “valid reason”. Further, S170DE specifically proscribes certain conduct and entrenches an entitlement in an employee that his or her employment will not be terminated except for a valid reason. This is not the scheme or effect of the English legislation.
Mr. Watson said at page 257.30 of the transcript:
“It is not for the tribunal to put itself or this court to put itself
in the feet of the employer and determine what it would have
done in the circumstances or to determine whether the
particular conduct alleged to have been committed was or was
not committed in the view of the court. Rather it is necessary
to examine the conduct or the reasonableness of the conduct of
the employer and that it is made clear is a fundamentally
different question. ”
Whatever may be said in relation to the approach to determining the question of whether the dismissal was harsh, unjust or unreasonable pursuant to S170DE(2) of the Act, and I address that issue later in this decision, I do not accept that the question of whether or not the particular conduct was in fact committed is irrelevant to the determination of whether the respondent had a valid reason for the termination. It is fundamentally relevant. If it were as is submitted by Mr. Watson, then S170DE(1) of the Act would be rendered unnecessary when one has regard to the operation of S170DE(2) of the Act. This approach is also supported by the provisions of the Convention Concerning Termination of Employment at the Initiative of the Employer to be found at Schedule 10 to the Act, in particular Division C Article 9 which is set out and discussed later in this decision.
Whether Valid Reason
The evidence is that a medical certificate (exhibit W6) was provided by the applicant to the employer in respect of the absence on 26th March. Notwithstanding that the medical certificate was obtained after the applicant had returned to work, the evidence of Dr. Haikerwal was that it is not unusual for a medical practitioner to be able to make an assessment of symptoms being described post the event, and that residual symptoms may still remain which would assist diagnosis even retrospectively. The applicant gave evidence that on the day of his return to work he was still feeling the after-effects of his illness. The respondent’s witnesses gave evidence of their observation of him as appearing in good health upon his return to work, however there was no material before the Court, or indeed the respondent, to indicate that the medical practitioner issuing the certificate had not properly done so. Further, the applicant, whilst not denying in his evidence that he was absent from home for a time during that day, never resiled from his position that his absence on the day in question was due to illness. The respondent’s witness, Mr. Wills, conceded this fact in cross-examination at page 119 of the transcript. It is also clear from the evidence of all witnesses present at the meeting on 28th March, that it was the applicant who volunteered the fact that he had gone to visit his father on the day he was absent.
Viewed objectively, there is no inconsistency between the applicant having been ill on the day of the absence and his having visited a relative during the course of that day. Evidence was given by two of the respondent’s witnesses that the applicant admitted having taken the day off only so that he could visit his father for his birthday. The applicant denied this. There is some conflict between this evidence and the evidence of Mr. Wills that the applicant never resiled from the position that he was ill on the day. Having regard to these inconsistencies and to exhibit W9 which, being a document recording notes taken at the meeting on the 28th March, makes no mention of such a significant admission by the applicant, I am not satisfied that such a statement was made by the applicant.
On the evidence in this case I am not satisfied that the applicant’s absence from work on 26th March, 1994 was as a result of unauthorised absenteeism. In view of this finding the respondent did not have a valid reason for the termination of the applicant.
Having regard to this finding, it would normally be unnecessary to proceed to determine other aspects of the case before me. However, there are other aspects of the termination which warrant some consideration lest there be any doubt as to the correctness of the above finding.
These matters arise pursuant to S170DE (2) of the Act.
S170DE(2)
The applicant contends that even if a valid reason for the termination existed, the termination was nevertheless not valid because it was harsh, unjust and unreasonable for substantive and procedural reasons.
The applicant bears the onus of proof in this regard.
A termination of employment which resulted from an unauthorised absence from work for reasons other than illness or injury, would not normally constitute a termination which was harsh, unjust and unreasonable, in circumstances where the employee had taken what was on the face of it a large number of unauthorised absences for reasons other than illness or injury and where the employee had been warned on at least two occasions prior to the termination including a final warning of termination, which had been documented. On the other hand a termination of employment arising out of a single unauthorised absence may be harsh, unjust and unreasonable.
In determining whether the termination in this circumstance was harsh, unjust or unreasonable it is necessary to consider the appropriate meaning and application of the words “harsh unjust and unreasonable” in the context of S170DE (2) of the Act.
The approach contended for by Mr. Watson is that which was set out earlier in dealing with the operation of S170DE(1). This approach has been rejected in various decisions of the Federal Court in proceedings pursuant to the former S119 (now S178) of the Industrial Relations Act.
In Bostik (Australia) Pty. Ltd. v Gorgevski (No. 1) (1992) 36 FCR 20
the meaning of these words was considered.
Sheppard and Heerey JJ said (at 29) :
“These are ordinary non - technical words which are intended
to apply to an infinite variety of situations where employment
is terminated. We do not think any redefinition or
paraphrase of the expression is desirable. We agree with the
learned trial judge’s view that a court must decide whether
the decision of the employer to dismiss was, viewed
objectively, harsh, unjust or unreasonable.”
Black C. J. in Byrne & Frew v Australian Airlines (1994) 52 I.R. 10
considered the application of the words “harsh, unjust or unreasonable” in the context of a proceeding pursuant to the then S119 of the Act and said (at 11 ):
“ I would observe however that the issues in such cases are not
confined to whether the employer has acted unreasonably;
the issues will include whether the termination was harsh or
unjust. Although there is an obvious overlap between the
words “harsh, unjust and unreasonable”, they describe
different concepts and it may well be said that to dismiss an
employee who is in fact not guilty of any misconduct is
objectively (my emphasis) “unjust”, notwithstanding that
in a procedural sense the employer’s conduct was not
unreasonable and the decision to dismiss was one the
employer might properly have arrived at. Moreover care
should be taken when considering decisions in other
jurisdictions. The use of the three words “harsh, unjust and
unreasonable” provides an important point of distinction
between unfair dismissal provisions of federal awards in
Australia and legislative provisions relating to unfair
dismissal in other jurisdictions.”
See also the decision of Gray J. at page 63.
Whilst I have been urged to distinguish the approach taken in those decisions of the Federal Court and instead adopt the approach taken in the English authorities referred to earlier, I am unable to agree with that view. S170DE of the Act provides that a termination which is not for a valid reason is a contravention of S170DE (1) of the Act. A termination which is harsh, unjust or unreasonable is deemed by sub-section (2) of S170DE not to be for a valid reason. The section prohibits termination of employment which falls into any of those categories. There is nothing inherent in the proceedings pursuant to S170DE of the Act which would warrant this Court taking an other than objective approach in determining whether there has been a contravention of the Act. Nor is there any reason to suggest that the interpretation adopted by the Federal Court of the meaning of the words “harsh, unjust or unreasonable” should not be adopted by this Court in applying the provisions of S170DE.
Further and importantly having regard to the objects of Division 3 of the Act as set out in S170CA of the Act, this approach is consistent with the provisions of the Convention Concerning Termination of Employment at the Initiative of the Employer. Article 9 of the Convention provides:
The bodies referred to in Article 8 of this Convention shall be
empowered to examine the reasons given for the termination and
the other circumstances relating to the case and to render a decision on whether the termination was justified.
In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:
(a) the burden of proving the existence of a valid reason for the termination as defined in Article 4 of the Convention shall rest on the employer;
(b) the bodies referred to in article 8 of this Convention shall
be empowered to reach a conclusion on the reason for the
termination having regard to the evidence provided by the
parties and according to procedures provided for by national
law and practice”.
It is clear that the Convention anticipates that this Court, being the “body referred to in Article 8”, would be empowered to investigate and draw its own conclusions as to the reasons for, and reasonableness of, the termination. In my view, the legislative provisions of S170DE (1) and (2) adopt this approach in implementing the terms of the Convention.
The appropriate test of whether the termination was harsh, unjust or unreasonable is a question for this Court to determine objectively having regard to the evidence before it, and is not limited to the material which was before the employer at the time of the termination.
Whether harsh, unjust or unreasonable?
In these proceedings I have a number of difficulties with the approach adopted by the respondent, both in implementing its existing disciplinary procedure of verbal and written warnings, and also with the course of the interviews held on 28th and 30th March, 1994, which resulted in the termination of the applicant’s employment.
The Disciplinary Procedure.
Mr. Wills, the Human Resources Manager for the respondent, gave evidence of a disciplinary procedure which had for some time, by custom and practice, been operating in the workplace. It appears from the evidence that the disciplinary procedure usually involved a three-step written warning process, the third warning being the final warning with the consequence of dismissal clearly spelt out. That evidence is to be found at pages 98 and 99 of the transcript.
Whilst, in the absence of an Award provision or agreement to that effect there may not be any obligation at law to adopt a workplace disciplinary procedure, many employers have adopted such procedures to provide both parties with a degree of certainty in the process to be adopted in the event of a perceived disciplinary problem with an employee. The application of a disciplinary procedure may well be a telling indicator of procedural fairness being accorded by an employer. But whether a legal obligation exists or not , the adoption by an employer of a procedure, whether by custom and practice or design, has consequences for both the employer and the employee. The benefit to the employee of this is obvious; the benefits to the employer arise because the procedure ensures an effective mechanism for resolving difficulties of a performance or disciplinary nature as and when they arise in order to reduce or limit disruption and dislocation to the operation and the productivity of the employer’s business.
In this case, it is possible that the terms of the disciplinary procedure did in fact become incorporated into the contract of employment between the applicant and the respondent. However even if this were not the case, the adoption of such procedures imposes as a matter of fairness and equity an obligation on the employer to apply and comply with those procedures if it is proposed to rely upon them to bring about the termination. Once adopted and implemented in a workplace, their status is more than merely a discretionary approach available to an employer at whim.
In this case I find on the basis of the evidence of Mr. Wills that the respondent had adopted a disciplinary procedure and it was well known to the employees and management of the respondent. Whilst there may well have been a perception in the witnesses Mr.Ferguson and Mr. McCall that the application of such policy was at the prerogative of management, this was not the approach which had been adopted by custom and practice and nor was it the approach which was identified to the applicant as being that to be applied in his case. In his circumstances it is clear to me that the disciplinary procedure was being applied.
It was not put by the respondent that there was anything in the conduct of the applicant on 26th March, 1994 that would have entitled the respondent to cease to apply the steps of the disciplinary procedure; in particular there was nothing in the applicant’s conduct justifying summary dismissal. Yet this is effectively what occurred, although upon the termination of employment payment was made in lieu of notice.
The respondent clearly had serious concerns about the applicant’s level of absenteeism. I have earlier in this decision accepted that the excessive absenteeism complained of by the respondent was absence from work for reasons other than illness or injury. The applicant received a first written warning for excessive absenteeism on 27th August, 1993 (exhibit W5). Between that time and 21st January, 1994 there was little if any improvement in the applicant’s record of absenteeism. On 21st January, 1994 a further written warning (exhibit B2) was given. This warning was stated to be a final warning and required an improvement in the applicant’s level of absenteeism. It is of relevance here that the warning did not specify the degree of improvement required of the applicant by the respondent, nor did it state that any further unauthorised absence would result in immediate termination. The applicant’s performance in terms of absenteeism was to be the subject of monthly reviews to occur over the next quarter. I take that to refer to the next three months subsequent to the final written warning. Ongoing counselling in relation to absenteeism was to occur if required. Whilst no copy of this document was provided to the applicant and the applicant gave evidence that he signed the document but did not read it , I am satisfied that both he and his union representative, having signed the document, were aware of its contents and its terms.
From the date of the issue of exhibit B2 it is clear that the applicant’s level of absenteeism dramatically reduced. The evidence was that he went from ten unauthorised absences in the period between the August warning and the January warning, to nil days unauthorised absence to at least 26th March, 1994 (exhibit W7).
As earlier stated, the applicant had one day off for certified illness on 2nd March, 1994. Consistent with the respondent’s position that its complaint was unauthorised absenteeism, no issue was taken with that absence. the applicant then had one further day off work on 26th March, 1994.
I have already determined that there is no evidence to show that the applicant’s absence on that day was due to reasons other than illness.
However, even if the view were taken that the absence fell into the category of another example of unauthorised absence, it is clear that the applicant had complied with the terms of the final warning that there be an improvement in attendance. There had been an improvement whatever view is taken of the absence on 26th March, 1994. It is apparent from the evidence that little, if any, regard was had to this improvement when the decision was made by the respondent to terminate the employment, and this is confirmed by the Separation Certificate supplied by the respondent (exhibit B4) which cites ‘excessive absenteeism’ as the reason for the termination. It is also apparent that the termination of employment took place almost a month before the expiration of the review period of three months set by the respondent in the final warning document. That period would have expired on 21st April, 1994. Yet notwithstanding the improvement in attendance and the review period still being operative, the respondent terminated the employment of the applicant for the very reason which was the subject of the review. These matters lead me inevitably to the conclusion that the termination was harsh, unjust and unreasonable for reason of lack of procedural fairness. I am also of the view that having regard to the contents of the written warning and the matters referred to above, that the termination was substantively harsh, unjust and unreasonable.
The meetings and investigation process of 28th and 30th March,1994.
During the course of argument in relation to S170DF of the Act some reliance was placed upon the provisions of the Wool Scourers and Carbonisers Award 1987 (“the Award”) (exhibit W10). Whilst the Award imposes an apparent obligation on the employee to provide satisfactory evidence of illness or injury for the purpose of receiving paid sick leave, this obligation on the employee does not relieve the employer of its obligation to make an adequate investigation of the circumstances of an absence before drawing conclusions to the detriment of the employee which result in the termination of the employment. This obligation arises as a necessary consequence of the use of the words “harsh, unjust or unreasonable” in S170DE(2). See in this regard Byrne & Frew v Australian Airlines (supra at pages 15 & 16) and Bostik v Gorgeski (supra at page 15).
The respondent in this case, although clearly not believing that the absence was due to illness, failed to establish any contact with the medical practitioner who attended the applicant, despite initially
making an attempt to do so. The respondent could not on any reasonable view of the circumstances be satisfied that the absence on 26th March was not due to illness unless and until they had clarified the circumstances of the medical certificate (exhibit W6) with the medical practitioner who issued it, or at the very least until they had extended an opportunity to the applicant to provide further material to substantiate the fact of illness being the reason for his absence. The evidence reveals that neither of these steps were taken by the respondent.
On the basis of these matters I am satisfied that there was a failure of the respondent to accord to the applicant procedural fairness in the circumstances of the termination.
Conclusion.
In view of the above matters it is my decision that the respondent contravened S170DE of the Industrial Relations Act 1988 in terminating the employment of the applicant.
Remedy:
I now turn to consider the question of remedy pursuant to S170EE of the
Act. Whilst it appears from the terms of S170EE that the granting of any remedy is a matter of discretion for the Court, this discretion must be exercised having regard principally to the remedy sought by the successful applicant and also to considerations of fairness and equity.
I see no reason, in the absence of exceptional circumstances, why the remedies provided for by the legislation and sought by an applicant ought not be granted to that applicant if successful. This approach is given further weight by the adoption by the Parliament of the test of impractibility in S170EE(2) as the only limitation in respect of reinstatement.
It was submitted by the respondents that having regard to the “fault” of the applicant, I should decline to grant a remedy or in some way reduce any remedy granted. I take this submission to be a reference to the applicant’s history of unauthorised absenteeism although this was not clear in the written submissions. This history may well have been relevant for consideration had my finding been that prima facie the respondent had a valid reason for the termination. I found to the contrary.
Having heard the applicant’s submissions and having considered the respondent’s written submissions, it is my view that there is nothing arising out of the circumstances of this termination or the conduct of the applicant which would warrant any reduction of the remedy available or which would make reinstatement of the applicant impracticable. The respondent conceded this point in relation to reinstatement.
I have decided therefore to grant to the applicant the remedy of reinstatement sought and also the remuneration lost to him over the period of the termination. I have calculated that amount by reference to the termination pay notice, which is exhibit W3. The weekly gross remuneration of the applicant was $736.27.
I have calculated the amount of remuneration lost by the applicant during this period to be $11,661.33. That amount, being a gross amount, includes a deduction of $4,536.61 being the earnings of the applicant whilst in casual employment during that time.
I therefore make the following orders:
That the applicant be reinstated by the respondent to the
position occupied by him immediately prior to the termination;
That the reinstatement take effect on and from the date of this
order;
That the respondent pay to the applicant the amount of $11,661.33 being the remuneration lost by the applicant between the 14th April, 1994 and the date of this order.
That the period between the date of termination and the date of
reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.
I certify that this and the twenty-four (24) preceding pages
are a true copy of the reasons for judgment of Judicial
Registrar Parkinson.
Associate:
Dated: 15 September 1994
Solicitors for the Applicant: Slater & Gordon
Counsel appearing for the Applicant: Mr H. Borenstein
Solicitors for the Respondent: Freehill Hollingdale & Page
Counsel appearing for the Respondent: Mr G. Watson
Date of hearing: 22, 23, 24, 25 August 1994
Date of judgment: 15 September 1994
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