Bernard Johan Engberink v Worsley Alumina Pty Ltd
[1995] IRCA 717
•26 September 1995
DECISION NO: 715/95
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT- claim of UNLAWFUL TERMINATION - whether a VALID REASON for termination - whether termination for a proscribed reason pursuant to S 170DF - whether termination was HARSH, UNJUST OR UNREASONABLE - whether REINSTATEMENT impracticable.
INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC, 170DE, 170DF, 170EE
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20
Aitken v The Construction, Mining, Energy, Timberyards, Sawmills and Wood Workers Union of Australia - WA Branch, Lee J, IRCA Decision No. 352/95, unreported.
Liddell v Lembke (1994) 127 ALR 342
BERNARD JOHAN ENGBERINK -v- WORSLEY ALUMINA PTY LTD -
WI 95/1197
BEFORE: BOON JR
PLACE: PERTH
DATE: 26 SEPTEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1197
BETWEEN: BERNARD JOHAN ENGBERINK
- Applicant
AND: WORSLEY ALUMINA PTY LTD
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 26 SEPTEMBER 1995
THE COURT ORDERS THAT:
Worsley Alumina Pty Ltd reinstate Mr Engberink within 14 days of the date of this order by appointing him to another position on terms and conditions no less favourable than those on which Mr Engberink was employed immediately before the termination.
Worsley Alumina Pty Ltd pay to Mr Engberink any remuneration lost by him because of the termination according to the formula set out in these Reasons for Judgment.
For all purposes the period between termination and the date of reinstatement be treated as a period of continuous employment.
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 )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1197
BETWEEN: BERNARD JOHAN ENGBERINK
- Applicant
AND: WORSLEY ALUMINA PTY LTD
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 26 SEPTEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act arising out of the termination of the applicant's employment by the respondent. The applicant states that the termination of his employment contravened the provisions of the Industrial Relations Act in a number of ways. Firstly, it is said that the termination did not occur for a valid reason within the meaning of s.170DE(1) of the Act. Secondly, if there was a valid reason for the termination, the termination was in any event harsh, unjust or unreasonable within the meaning of s.170DE(2). Finally, the applicant says that he was not given an adequate opportunity to respond to allegations made against him within the meaning of Section 170DC.
In relation to the question of whether or not there was a valid reason for the termination, the applicant refers to s.170DF(1)(f) which states that:
"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:
........ ....
.....(f) .... physical or mental disability ....".
The respondent refers to s.170DF(2) which states
"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".
The respondent states that there was a valid reason for the termination, namely, that following an accident in the course of his employment Mr Engberink was incapable of carrying out the inherent requirements of the position he was occupying immediately prior to the accident. Further, the respondent states that the termination was in any event not harsh, unjust or unreasonable as there was no suitable light work available within the respondent's establishment which could be carried out by the applicant.
Further, the respondent states that Section 170DC does not apply to this particular matter as there were no allegations made in relation to the applicant's conduct or performance. If Section 170DC does apply, the respondent says that the applicant was given an opportunity to respond.
BACKGROUND
The respondent, Worsley Alumina Pty Ltd, is a large establishment concerned with the mining of bauxite and the refinement of that bauxite down to alumina. Its plant is situated in the southwest of Western Australia. Worsley Alumina employs approximately 700 people at its combined operations.
The applicant, Ben Engberink, is 32 years of age. He left school at the age of 14 and initially worked for Bunnings as a crane driver. He left Bunnings after five years and started working for Worsley Alumina on 20 September 1983. He has worked for Worsley Alumina since that time. He obtained a Crane Driver's Certificate of Competency on 12 February 1986. Initially, he worked in the warehouse delivery section of the plant. After about two or three years, he started work as an operator/serviceman in the maintenance section of the plant. There is an operations side to the Worsley Alumina plant but Mr Engberink has never worked in that part of Worsley. Prior to his accident Mr Engberink's duties included helping other trades people in using rattle guns, stripping equipment, working in confined spaces, assisting in building scaffolds and working on them, lifting and slinging, rigging up gear for lifting out and crane driving and forklift work. I accept on the evidence that a significant proportion of the duties carried out by Mr Engberink prior to his injury were of a heavy nature.
On 8 September 1992, Mr Engberink was doing mill maintenance on a coal mill. He was helping push a large lump of steel onto the tray of a utility which had been reversed into a large bin. As Mr Engberink was in the utility pushing the steel he slipped out and fell down onto a handrail. His lower back collided with the handrail. Mr Engberink reported the accident to the medical centre on site. As a result of his injury Mr Engberink was treated by a number of doctors and I will refer to some of their reports later. He also received treatment from a physiotherapist. I accept Mr Engberink's evidence that apart from some time which he took off to get medical treatment he has taken no time off work as a result of his back injury since the date of the accident.
Immediately after the accident Mr Engberink tried to perform his previous duties, but after some time he was transferred on to light duties by the respondent.
Mr Dennis Bear, Mr Engberink's immediate superior at the plant, stated that as he was afraid of "Ben getting hurt again" the respondent decided that Mr Bear would allocate certain work to Mr Engberink and Mr Engberink would let Mr Bear know if the work was too difficult for him. Mr Bear provided this Court with a list of the light duties work he provided to Mr Engberink as follows:
"1. Keeping the maintenance workshop tidy.
2. Replenishing of shelves of bolts, gaskets, screws, etc.
3. Forklift work.
4. Some crane work.
5. Cataloguing of tools for centralised tools store.
6. Ordering of bolts, nuts, items for workshop shelves.
7. Occasionally assist tradespersons on onsite jobs.
8. Tidying up of lay down areas.
9. Teaching truck driving (only sparely).
10. Washing down around workshop area.
11. Dogging for tradespersons and crane drivers.
12. Picking up emergency stores."
Mr Bear stated that these duties did not form full time meaningful work for Mr Engberink and Mr Engberink himself confirmed that he had time to spare. Mr Engberink gave evidence, which I accept, that whenever he did not have enough to do he took it upon himself to try to find more work.
Mr Bear suggested that Mr Engberink should try to obtain his boilermaker's ticket and Mr Engberink sent away for the training package which cost him $60. He bought the books and tried to do the correspondence course by himself but it was too difficult for him. Other work suggested to Mr Engberink including working with computers. He was, however, unable to do this. Mr Engberink was asked to estimate the total amount of time spent by Mr Bear and Mr Hickey, another workmate, showing Mr Engberink how to do other work. Mr Engberink estimated that the total amount of time spent would have been about half-an-hour to three-quarters-of-an-hour each over the entire period from the date of the accident until his termination in February 1995.
Mr Bear said that he felt that they should try to find Mr Engberink more meaningful work so he approached the Occupational Health Officer for expert advice. They decided to refer Mr Engberink to the Industrial Rehabilitation Service. Ms Jan Virgo, a Rehabilitation Consultant with the Industrial Rehabilitation Service, gave evidence that at the time Mr Engberink was referred to her he had been on light duties for about eight months following his accident. She said that the initial rehabilitation goal was to attempt to return Mr Engberink to his full duties in his previous employment. Ms Virgo dealt with Mr Engberink's employers and their insurers. She recommended that he be referred to a specialist and a worksite evaluation was carried out using the information from the employers and the medical advisers. A "graded return programme to pre-injury duties" was compiled and the applicant tried to work according to this programme. By April of 1994, however, it appeared from the medical reports that returning to the full range of pre-accident duties was not going to be a practical proposition. Ms Virgo said that the Industrial Rehabilitation Service was asked to consider work trials for Mr Engberink outside of Worsley only. She was not requested to look at specific jobs or worksite evaluations within Worsley Alumina. There was never any discussion with Ms Virgo about any jobs which Mr Engberink may be able to do within Worsley Alumina.
Rosemarie Mayfield, Occupational Health Officer at Worsley Alumina, gave evidence for the respondent. Ms Mayfield has been working at Worsley Alumina since about January of 1994. She first met Mr Engberink at about the end of January 1994. Ms Mayfield was the Site Rehabilitation Co-ordinator who worked with the Industrial Rehabilitation Service. Ms Mayfield gave evidence that she worked closely with the Recruitment Officer at Worsley Alumina in relation to any vacancies which became available on site. There was a meeting on 5 July 1994 at which she looked at alternative positions for the applicant throughout the refinery and concluded that any other positions available of an unskilled nature were all of a heavy duty nature and would be unsuitable for Mr Engberink to perform. It became clear during cross-examination, however, that when considering alternative employment for Mr Engberink within Worsley Alumina itself, Ms Mayfield and Mr Engberink's superiors looked only at the job descriptions relating to each position. The evidence was that each job description at Worsley Alumina involved a wide range of duties, ranging from some light duties to heavy duties. On this basis, no position at Worsley would be suitable for Mr Engberink as each position was defined by Worsley to include some heavy duties.
Ms Mayfield gave evidence that Mr Engberink was different from the other eleven employees on light duties at Worsley Alumina in that each of the other eleven employees was actually performing some of his pre-accident duties, if not the majority of his pre-accident duties, or had been redeployed into another position because he had some skill in that area. This was not possible for Mr Engberink as, according to Ms Mayfield, any position that Worsley would have would put Mr Engberink at risk of further injury. Ms Mayfield also said that there was no other position as Worsley was downsizing and has a low labour turnover rate.
Ms Mayfield gave evidence that at a meeting on 5 July 1994 it was decided that vocational retraining was the only option available in relation to Mr Engberink. On this basis it was arranged that a vocational assessment would be carried out for Mr Engberink through the Industrial Rehabilitation Service.
The Court heard from Silvana Galante, a registered psychologist, who was requested to undertake a vocational assessment of Mr Engberink. Ms Galante said that a vocational assessment is a process of exploring for work options for the client. Ms Galante made an assessment of Mr Engberink's IQ and her report shows that it reflected a very low general ability in verbal and numerical skills. Mr Engberink was asked to complete a questionnaire which assessed his preferences. Mr Engberink's highest scores were for security (wanting to feel sure that he would not lose his job); physical activity (wanting to be physically active in his work) and surroundings (wanting to work in pleasant surroundings). The IQ test showed a range of between 63 and 77. Ms Galante's report showed that Mr Engberink's most preferred work option was to remain at Worsley Alumina. Other options were explored namely prison officer, security officer, travel guide, caravan park attendant and bar tender. Ms Galante's report recommended the following:
Due to Mr Engberink's low potential for retraining, that all assistance be given to him to remain with Worsley Alumina and his identified vocational interests be used to assist his employer to locate suitable work. This also requires medical opinion in regard to physical suitability.
Should the above option not be suitable, Mr Engberink be assisted in upgrading his basic literacy skills to a Year 10 level which may be arranged through the South West College of TAFE, Bunbury and further assist him in locating alternative work. All work options have been identified and discussed in the body of the report and require further discussion with Mr Engberink, Worsley Alumina, SGIO and IRS to determine the most suitable option."
Ian Cope, the Utilities Superintendent at Worsley, gave evidence that Mr Engberink reported to Dennis Bear and Dennis Bear reported to Mr Cope. In relation to matters concerning Mr Engberink, Mr Cope relied on information supplied by Mr Bear and Ms Mayfield. Mr Bear had advised him that he had tried to find suitable alternative employment within Worsley for Mr Engberink but that there was no full time meaningful position available. It was clear from Mr Bear's evidence, however, that he was not familiar with all of the jobs available at Worsley. For example, Mr Bear was not aware of what work was involved in the main store. Ms Mayfield's evidence was that she didn't consider that any formal training would be beneficial to Mr Engberink because the positions available at Worsley are all of a heavy nature within operations and maintenance. As stated above, however, that decision was made primarily on the basis of existing job descriptions.
Mr Jeffrey Mackie, Employee Relations Superintendent at Worsley Alumina, gave evidence that during 1994 all people who had previously been covered by the Worsley Alumina Award were offered a staff contract. Mr Mackie was contacted and asked whether such staff contracts would be available to people like Mr Engberink, who were on long term workers' compensation. Mr Mackie believed that it would be discriminatory to refuse to offer such contracts to people on workers' compensation and accordingly Mr Engberink was also offered a staff contract. Mr Engberink gave evidence that he signed the contract of employment in mid November 1994. Mr Engberink's evidence was that he thought that if he went along and did the right thing and signed the contract he might have some hope of staying with Worsley. Mr Engberink resigned from the union when he signed the contract of employment on 16 November 1994.
On 23 November 1994, Mr Engberink was called to a meeting with Mr Cope, Ms Virgo, Ms Mayfield and Greg Mason, the Personnel Services Superintendent. At that meeting, Mr Cope explained to Mr Engberink that there was no full time light duties position available for him within Worsley. He explained that Mr Engberink was not currently performing his pre-accident duties and that there was no long term position within the power station for Mr Engberink. Mr Cope said that they would be looking at vocational retraining through the Industrial Rehabilitation Service and that Mr Engberink would be released from Worsley to go on work trials. Mr Cope said that the Industrial Rehabilitation Service would have a period of three months until the end of February 1995 to assist in future vocational planning. Mr Engberink's employment was to be terminated if he could not find another position in the meantime.
Mr Engberink was very upset as a result of that meeting and he said at the meeting that he didn't think that what Worsley was doing to him was right. Mr Engberink was not represented at the meeting and I accept from his evidence that although he understood that his employment may be terminated in February, he was in a state of confusion as a result of that meeting. Mr Engberink's evidence was that although "he knew the axe was going to fall", he just did not know what to think anymore. Mr Engberink felt that there was some uncertainty about his position as there had been some talk about a full time job for him in a tool store. Mr Cope gave evidence that Worsley had considered the possibility of creating a centralised tool store and Mr Engberink had been involved in entering some data relating to the tools on to a register. Mr Cope's evidence was that Mr Engberink thought he had a position in the tool store when his employment was terminated. However, there had been a significant reorganisation at Worsley and a centralised tool store was no longer considered to be an option.
THE TERMINATION
Mr Cope gave evidence that before 17 February 1995 he had several conversations with Rosemarie Mayfield which indicated that the applicant's work trials were unsuccessful. There was some discussion between Ms Mayfield, Mr Mackie and himself and they arrived at an agreement that Mr Engberink's employment would be terminated. On 17 February 1995, Ms Mayfield and Mr Cope met with Mr Engberink. Mr Cope gave evidence that he informed Mr Engberink that "given what I'd told him in November and that there had been no prospects of long term employment then, and that the trials had been unsuccessful, that we had reached the conclusion that we needed to terminate his employment". Mr Engberink was asked if he had any comment and Mr Engberink raised the question of a job in a centralised tool store. Mr Cope explained that the tool store job was no longer an option and Mr Engberink didn't pursue it any further. They discussed Mr Engberink's medical condition and Mr Engberink said that the situation was basically the same as it had been before. Mr Engberink asked Mr Cope to prepare a letter of termination. The letter of termination reads as follows:
"Dear Mr Engberink
This is to confirm our conversation today in which I informed you that Worsley Alumina Pty Ltd would be terminating your employment with four (4) weeks notice effective 17 February 1995.
This follows on from the meeting held in my office on 23 November 1994 where you were advised, based on medical and vocational reports, that your future prospects at Worsley were limited unless the situation changed. Since that time there has been little progress and unfortunately you are unable to carry out the duties for which you were employed and there appears to be no prospect of this in the foreseeable future.
Any further rehabilitation will need to be co-ordinated through our insurers, the State Government Insurance Office (SGIO), and the Industrial Rehabilitation Service.
Yours faithfully
WORSLEY ALUMINA PTY LTD
I R COPE
Powerhouse Superintendent"
Since his employment with Worsley Alumina was terminated, Mr Engberink has not been successful in obtaining any alternative work. Initially, Worsley Alumina, through its insurers, the SGIO, denied liability for workers' compensation for Mr Engberink. However, that situation was rectified and Mr Engberink has been in receipt of workers' compensation payments for some months now.
THE MEDICAL REPORTS
The most recent medical report made available to this Court was that of Mr Barrie Slinger, Spinal Surgeon, dated 29 April 1995. Mr Slinger noted that the most recent CT scan of September 1994 showed a disc bulging at L 4/5 on the right hand side of the back. The diagnosis made by Mr Slinger was that of a soft tissue injury relating to the incident of 1992. Mr Slinger stated that surgery is not an indication and suggested that Mr Engberink continue with an active exercise programme. Mr Slinger states "Present symptoms are likely to continue, restrict him from returning to work of a heavy nature however I believe that he is fit for full time employment with light duties including light storeperson, gate keeper, car park attendant, driveway attendant or general office duties".
Dr Gary Garside, Occupational Physician, stated in his report of 7 October 1994 that Mr Engberink's current symptoms are not severe. Dr Garside concludes in that report ".... he remains fit to continue working in his current capacity, avoiding lifting weights greater than 10 kilograms and repetitive bending and twisting of his back".
Mr Peter Woodland, Orthopaedic Surgeon and Spinal Surgeon, in his report dated 5 September 1994 concluded "Certainly he is fit to work full time in some type of lighter duties not involving repetitive bending or heavy lifting. My impression now and previously has been that he is a very well motivated, genuine man with a genuine desire to continue in gainful employment."
All of the medical reports, certainly since early 1994, indicate that Mr Engberink is most unlikely to be able to return to his pre accident duties but that he is fit for full time lighter employment.
WAS THERE A BREACH OF THE PROVISIONS OF SECTION 170DF?
It was the applicant's argument that Worsley Alumina contravened the provisions of Section 170DF of the Act in that Mr Engberink's employment was terminated for the reason of physical disability within the meaning of paragraph (1)(f) of Section 170DF. It was clear from the evidence that Mr Engberink's employment was terminated because of his physical disability. However, the respondent says that Section 170DF was not breached because of the provisions of Subsection (2) which states "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". It is the respondent's argument that the inherent requirements of Mr Engberink's position prior to the accident were that Mr Engberink undertake work mainly of a heavy nature.
Counsel for the applicant submitted that the position of a maintenance serviceperson covers a very wide range of duties and combination of duties. He submitted that it is clearly possible for Worsley to find a constellation of tasks that Mr Engberink is capable of performing within the duties of a maintenance serviceperson. It was said that the distinction depends upon what is described by the words "the position" in Subsection (2). The representative for the respondent raised the question of whether it is the formal structure that the employer has adopted with all of these multiple ranges of things or is it the narrow position, the task that the person was actually doing at the time of the dismissal or the time of the injury?". It was submitted by counsel for the applicant that in this case it was not an inherent requirement of the position of a maintenance serviceperson to do a lot of heavy lifting because the tasks of a maintenance serviceperson may involve on a full time basis many activities that do not include heavy lifting, notwithstanding that for the purposes of an operational requirement the employer does usually require a maintenance serviceperson every now and again to do some sort of heavy work.
I do not accept that part of the applicant's argument. The evidence established that prior to the accident Mr Engberink's position as a maintenance serviceperson involved tasks that were predominantly of a heavy nature. I find that the inherent requirements of the particular position for which Mr Engberink was employed meant that Mr Engberink had to be physically capable of doing heavy work. For this reason, I find that there was no breach of the provisions of Section 170DF.
WAS THERE A BREACH OF THE PROVISIONS OF SECTION 170DE?
The next question this Court must consider is whether or not there was a valid reason or valid reasons, for the termination connected with the employee's capacity or conduct or based on the operational requirements of Worsley Alumina within the meaning of Section 170DE(1). At the termination meeting on 17 February 1995, Mr Cope told Mr Engberink that there were no prospects of long term employment at Worsley in that there were no duties of a light nature which Mr Engberink could perform, that the work trials had been unsuccessful and that because of his physical incapacity Mr Engberink's employment would be terminated. The letter of termination states that there had been little progress since 23 November 1994 and that Mr Engberink was unable to carry out the duties for which he had been employed. There was some confusion arising from Mr Cope's evidence as to what exactly the reason for termination was. I accept on balance, however, that the respondent terminated Mr Engberink's employment because he was physically unable to carry out the duties for which he was originally employed. That may amount to a valid reason within the meaning of Section 170DE(1).
This Court must determine, however, whether, having regard to the employee's capacity and conduct and Worsley's operational requirements, the termination is harsh, unjust or unreasonable. It was the respondent's argument that it had done everything it could to find work of a light nature for Mr Engberink, but because of the nature of the industry at Worsley Alumina there was no position involving only light duties. It was submitted on behalf of the respondent that a period of two and a half years is more than a reasonable period to allow somebody the opportunity to respond to rehabilitation, and also to try to find some alternative work that he may be suited to. It was submitted that Worsley Alumina have to make a profit, that they are accountable to their owners and that they must operate on an efficient basis. It was said that there was no position of light duties available at Worsley Alumina for Mr Engberink. The representative for Worsley Alumina submitted that "Worsley Alumina are not a convalescent home and we do have other mechanisms to cater for these type of people". Workers' compensation and social security payments were referred to.
Further, it was said by the respondent that Mr Engberink failed to co-operate with the work trials which Ms Virgo attempted to set up for Mr Engberink. The evidence was that Mr Engberink did not distribute his curriculum vitae to prospective employers as requested by Ms Virgo. A report of Ms Virgo dated 18 January 1995 made reference to the fact that she had difficulty in getting Mr Engberink to assist with the work trial process. The evidence showed that there was no written authority for Mr Engberink to be away from work until 20 December 1994. After that there was the Christmas and New Year holiday period. Mr Engberink was also on leave for some time between December and his termination on 17 February 1995.
Mr Engberink gave evidence that he did not want to engage in work trials over his annual leave period as he wanted to get away from it all and try to have a break from the whole rehabilitation process. His evidence was that he was confused and did not know what to think at that time. He considered it extremely unlikely that anybody would want to employ him when he had "a crook back and only limited qualifications". He was also suspicious about what was intended for him and what Worsley was going to do. Ms Virgo's evidence was that it was not unusual for people to become depressed and discouraged and that was part of the rehabilitation process. Her evidence was that the rehabilitation provider had to deal with that. In these circumstances I do not find fault with Mr Engberink in relation to his actions in the November 1994 to February 1995 period. The overwhelming impression I gained from Mr Engberink while he was giving his evidence was that on the whole he was a highly motivated person who had a genuine desire to remain employed. He was prepared to try a number of different tasks at Worsley in an effort to keep his job.
There was some suggestion made on behalf of Mr Engberink that management at Worsley Alumina had made the decision that Mr Engberink could no longer remain at Worsley many months prior to November 1994. It was said that Mr Engberink was not advised of this until the meeting of 23 November 1994. There was considerable argument concerning a copy of a facsimile transmission from SGIO Insurance to Ms Virgo which indicated that SGIO's ultimate aim was to provide Mr Engberink with alternatives to his employment at Worsley but that Mr Engberink was not to know of that. I have arrived at a decision in this matter without having regard to that document.
Counsel for the applicant criticised Worsley Alumina's attempts at the rehabilitation of Mr Engberink in a number of ways. Firstly, it is said that Ms Virgo's attempts at rehabilitation were aimed at finding employment for Mr Engberink away from Worsley once it was clear from the medical evidence that he would not be fit for his pre-accident employment. The evidence shows that Ms Virgo was never involved in attempting to find any suitable light work for Mr Engberink within Worsley itself.
Secondly, it was clear from Ms Mayfield's evidence that she considered alternative work for Mr Engberink within Worsley primarily by looking at the job descriptions of each position. As each job description included a wide variety of tasks, it was impossible for Mr Engberink to be employed within any existing position as each existing position had heavy duties associated with it.
Thirdly, the applicant pointed to the evidence of Mr Cope who told the Court that supervisors are faced with the expectation by their employer that they should obtain the best possible efficiency from their area of supervision. To that end, they had control of the allocation of tasks and the distribution of duties and the selection of personnel. They were free to reduce the number of personnel below the fixed number but not to increase it. It was submitted that in these circumstances any superintendent faced with a casual inquiry of whether or not he had available light duties work was going to be faced immediately with a conflict of aspirations.
Fourthly, the applicant pointed to the fact that there was no evidence as to the full range of people who were enquired of by Ms Mayfield as to the availability of light duties work and there was certainly no evidence to show that any attempt was made by Worsley Alumina to find or construct a position for Mr Engberink which would include light duties work only. Mr Bear looked around to find tasks but he was not familiar with the overall operations of Worsley Alumina.
Next, it was said that Ms Galante in her vocational assessment report made two recommendations, the first being that suitable work be found for Mr Engberink within Worsley and secondly, if that was not possible, that Mr Engberink receive some further training to better equip him for alternative work. The recommendations of this report were not followed, although the respondent says those recommendations should be discounted as they were made without taking into account Mr Engberink's physical limitations.
Finally, the applicant's Counsel submitted that no attempt had been made at any kind of formal retraining for Mr Engberink or to fit him into any kind of serious employment. It was submitted that it was unrealistic to submit that out of a workforce of 700 people there is not available a combination of tasks that Mr Engberink faced with the physical limitations that he does face cannot carry out.
In a matter like this, one must balance the interests of the two parties. In this case, there are genuine concerns on each side. Each case must be decided on its own facts. In this case, I have come to the conclusion that the termination of Mr Engberink's employment with Worsley Alumina was harsh, unjust or unreasonable. In arriving at this decision, I have taken into account the fact that Mr Engberink was employed by Worsley Alumina for a period of over twelve years prior to his termination; that Mr Engberink's physical incapacity resulted from an injury incurred in the course of his employment with Worsley Alumina; that Mr Engberink because of his limited intellectual capacity would find it extremely difficult to obtain alternative employment; that Worsley made no real attempt to construct a position for Mr Engberink within Worsley; that Worsley did not attempt to retrain or assist Mr Engberink in gaining further qualifications; that Mr Engberink appeared to me to be highly motivated and determined to succeed in any job provided to him within Worsley Alumina; that Worsley Alumina is an extremely large employer with approximately 700 employees, each of whom undertakes a job with at least some work of a light nature associated with it; and the fact that in my view, there could have been a greater effort on the part of the respondent to rehabilitate Mr Engberink.
In the case of Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, Sheppard & Heerey JJ said at 28 in relation to the meaning of the words harsh, unjust or unreasonable:
"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. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but, of course, not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct".
In this case there was, of course, no question of any misconduct on the part of Mr Engberink.
In the case of Aitken v The Construction, Mining, Energy, Timberyards, Sawmills and Wood Workers Union of Australia - Western Australian Branch WI 1328 of 1994, Decision No. 352/95 unreported, Lee J said at 8
"The question in this case is whether the employer gave due regard to all reasonable and fair considerations the employee was entitled to expect as part of the employer/employee relationship that existed between them prior to termination of the employee's services. That is to say, acting fairly and having due regard to the interests of the employee, did the employer do all that could be reasonably expected of it in the circumstances to avoid the termination operating harshly, unjustly or unreasonably".
In this case, I don't consider that the respondent did all that could reasonably be expected of it in the circumstances. I do not accept that a very large employer such as Worsley Alumina was unable to create a position for Mr Engberink which involved suitable light duties. Further, no attempt was made to retrain Mr Engberink as recommended by Ms Galante in her report. That is not to say that every employer who is faced with an employee injured in the course of his or her employment must keep that employee on in a light duties position. It is a matter of looking at the circumstances of each case.
In this case, Mr Engberink was a particularly vulnerable person who should have had some representation in his dealings with his employers. I reject the submission by the representative for the respondent that requiring Worsley Alumina to employ Mr Engberink in a light duties position is tantamount to saying that it should act as a convalescent home. The medical reports make it quite clear that Mr Engberink is fit for productive work. He is highly motivated and I am confident that if some effort was made to provide him with suitable employment that he would be an asset to the company. In the circumstances of this case, the respondent did not take sufficient regard of the interests of the employee, in deciding to terminate Mr Engberink.
Having said that, it is not necessary for me to decide whether there was any breach of Section 170DC as that Section refers to an opportunity to defend the employee against allegations made against his or her conduct or performance. I have some doubt as to whether that Section has any application in this case. I have, however, had regard to the fact that Mr Engberink was not represented at any of the meetings which discussed his employment at Worsley and I consider that because of his vulnerability which was evident in the witness box this had some bearing on whether the termination was harsh, unjust or unreasonable.
THE APPROPRIATE REMEDY
The primary remedy available under the Industrial Relations Act is reinstatement. It is only if the Court thinks that the reinstatement of the employee is impracticable that the Court may make an order requiring the employer to pay to the employee compensation. It was strongly argued on behalf of Worsley Alumina that reinstatement would be impracticable in this case. Mr Mackie gave evidence on behalf of the respondent that there would be a number of concerns if Mr Engberink was reinstated. He said that there was no job available in the powerhouse for Mr Engberink and that Worsley had tried to accommodate him for two and a half years and he believed they had done everything possible. It was not seen as a viable option for Mr Engberink to return to his previous employment. Mr Mackie then mentioned the question of a possible light storeman position. His evidence was that there were ten storemen working in the store and that the sort of gear that they move is extremely large and heavy. He did concede that there was also some light gear to be moved. He stated that in his experience the industrial reality of putting a person in the storeroom would be that most of the other people would have some resentment for that person over the long term.
Mr Mackie also said that from the broader perspective, from the organisation's point of view, reinstatement would be very difficult in terms of other people who may be undergoing rehabilitation programmes. Mr Mackie said that if Mr Engberink was reinstated the information would get around the whole of the site and "there becomes some sort of attitude prevailing that you know nobody can be terminated regardless of their restrictions". Mr Mackie thought there was a real danger that people undergoing rehabilitation would not bother to co-operate with rehabilitation on the basis that Worsley wouldn't be able to do anything about it anyway as they would not be able to be terminated.
As to the last of those concerns, I have made it quite clear that each case is decided on its own merits and that to reinstate Mr Engberink would not create a rule of general applicability. Secondly, I consider that Mr Mackie is seriously underestimating his workforce in relation to the concerns raised by him. It could just as easily be said that employees undergoing rehabilitation would more likely to co-operate if they saw Worsley as a considerate employer which took into account the needs of its personnel. It is quite likely that the morale of the workforce would be improved as a result. In any event, this is pure speculation. Wilcox CJ and Keely J in Liddell v Lembke 1994 127 ALR 342 said at 360, albeit obiter dicta that "..... although 'impracticable' does not mean 'impossible', it means more than 'inconvenient' or 'difficult' ". Further, there is clear authority in this Court that reinstatement was intended by Parliament to be the primary remedy available under the Act. In this case I am not satisfied that reinstatement would be impracticable. I have already said that I don't accept that it is impossible to find a meaningful light duties position for Mr Engberink at the Worsley site. In these circumstances, I consider that it is appropriate to make an order that Mr Engberink be reinstated to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination. Pursuant to Section 170EE(1)(b), if the Court makes an order reinstating an employee it may make the following orders:
any order it thinks necessary to maintain the continuity of the employee's employment; and
an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination."
Mr Engberink, upon termination, received a payment of wages in lieu of notice and was also paid his accrued long service leave pay. For some time he was without income but eventually he received workers' compensation payments. It is not clear from the evidence before me whether or not Mr Engberink has lost any remuneration because of the termination. Payments of workers' compensation, although paid by the employer's insurer, generally are paid in the name of the employer and act as a substitute for ordinary wages in cases in which an employee has been injured in the course of his or her employment. In these circumstances, I consider it inappropriate to make an order for the payment of wages throughout the period between the date of termination and the date of reinstatement. To do so would mean that Mr Engberink would be "double-dipping". I do consider, however, that it is appropriate to make an order for payment of any remuneration lost by Mr Engberink because of the termination. The appropriate amount would be the difference between what Mr Engberink would have received if his employment had not been terminated and the payments he actually received upon termination plus the payments he has received by way of workers' compensation. It may well be that if this formula is applied that Mr Engberink has in fact lost no remuneration. I also propose to make an order that the period between the date of termination and the date of reinstatement be treated for all purposes as if Mr Engberink's employment had been continuous. The question of the categorisation of Mr Engberink's workers' compensation payments will then be a matter between Worsley Alumina and its insurer, the SGIO.
It was also urged upon me to make an order that Mr Engberink be able to take a period of long service leave. Mr Engberink was in fact paid a sum in lieu of his long service leave upon termination. His evidence is that he had planned to use his long service leave for a holiday outside of Western Australia. He did not take the holiday because of the events surrounding the termination and the subsequent litigation. In this case, however, given that the respondent has been without the benefit of Mr Engberink's labour in the intervening period I do not consider it appropriate on balance to make an order requiring the respondent to release Mr Engberink for a further period of leave. This may, however, be a matter which could be agreed between the parties.
I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Appearances
Counsel for the respondent : Mr P Marsh
Solicitors for the applicant: Shaddick Owens Laurino & Noble
Representative for the respondent: Mr G Bull of the Chamber of
Commerce & Industry of Western Australia
Date of Hearing: 2, 3 and 30 August 1995
Date of Judgment: 26 September 1995
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