Brown v J Blackwood and Son Ltd
[1997] IRCA 285
•24 October 1997
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION - whether VALID REASON - OPERATIONAL REQUIREMENTS - DISCRIMINATION - PHYSICAL DISABILITY - inherent requirements of particular position - whether VALID REASON - COMPENSATION.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170EA, 170EDA, 170EE, 170DE, & 170DF.
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Kerr v Jaroma Pty Ltd (1996) 70 IR 469.
Thomas v Lynch (unreported, IRCA No. 627 of 1996, Wilcox J, 20 December 1996).
Venn v Wesfarmers Limited (unreported, IRCA No. 128 of 1997, RD Farrell JR, 16 April 1997).
Christie v Qantas Airways Ltd (No 2) (1996) 68 IR 248..
Cochrane v Stirling Community Hospital (unreported, IRCA No. 56 of 1995, RD Farrell JR, 21 February 1996).PAMELA LILLIAN BROWN -v- J. BLACKWOOD & SON LIMITED
DI 1007 OF 1997JUDICIAL REGISTRAR: R.D. FARRELL JR
DATE: 24 OCTOBER 1997
PLACE: PERTH (HEARD IN ALICE SPRINGS)GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
DI 1007 of 1997
BETWEEN: PAMELA LILLIAN BROWN
APPLICANTAND: J. BLACKWOOD & SON LIMITED
RESPONDENT
JUDICIAL
REGISTRAR:
R.D. FARRELL, J.R.
DATE OF ORDER:
24 OCTOBER 1997
WHERE MADE:
PERTH (HEARD IN ALICE SPRINGS)
THE COURT DECLARES THAT:
1. The termination of the applicant’s employment by the respondent contravened section 170DF of the Workplace Relations Act 1996.
AND THE COURT ORDERS:
2. Within 14 days of the date of making these orders the respondent pay to the applicant the sum of $5,028.00 compensation pursuant to section 170EE(2) of the Workplace Relations Act 1996, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYDI 1007 of 1997
BETWEEN: PAMELA LILLIAN BROWN
APPLICANTAND: J. BLACKWOOD & SON LIMITED
RESPONDENTJUDICIAL
REGISTRAR: R.D. FARRELL, JRDATE: 24 OCTOBER 1997
PLACE: PERTH (HEARD IN ALICE SPRINGS)
REASONS FOR DECISION
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, Ms Pamela Brown (“Ms Brown”), by the respondent, J. Blackwood and Son Limited (“the Company”). Reinstatement was not sought and it was not contended that it was practicable.
Findings of Fact
The Company is a retailer of industrial engineering, electrical and safety supplies, with a number of branches throughout Australia. Ms Brown was first employed by the Company in September 1992, and worked as a full-time debtors/creditors clerk at its Alice Springs Store, performing all of the duties connected with accounts payable and accounts receivable. She was good at her job, earned the respect of the management and enjoyed considerable autonomy.
On 1 August 1994, Ms Brown was involved in a motor vehicle accident and suffered serious head injuries. A medical chronology filed by Ms Brown (and tendered by consent) sets out the ongoing effects of the accident, which included “chronic sleep/arousal difficulties, balance problems, dizziness, memory loss, changes in emotions and personality traits”. Ms Brown says that the injuries affected her concentration, her short term memory and her learning abilities, and that they left her suffering chronic fatigue. Her specialist, Dr Adrian Winsor, confirms in a facsimile dated 4 March 1997 (which was also admitted by consent) that Ms Brown “suffered neuropsychological disability” after the accident and that her injury has resulted in “impaired cognition and ... fatigue”.
From November 1994, Ms Brown was able to return to work with the Company on a part-time basis, initially for four two-hour days per week, under what she describes as a “vocational rehabilitation program”. The program was supervised by a “CRS” (Commonwealth Rehabilitation Service?) case manager. Ms Brown says she was medically evaluated throughout the program.
It seems that the Company supported Ms Brown’s aspirations to return for work. Ms Brown recalls Mr Tim Shalders, the then Queensland/Northern Territory General Manager, telling her that the Company was happy to have her back and would accept any hours she could perform. She says the then Manager of the Alice Springs store, Mr Mark Mulholland, was also supportive, in similar terms.
Ms Brown understood the Company’s management to have given her an assurance that her position with the Company after the accident was permanent and that they would support and accommodate her recovery needs, knowing it would be a long term process. However, she concedes that she was never expressly told that it would be acceptable to the Company for her to work no more than sixteen hours per week indefinitely. The Company’s contention is that its managers never indicated an indefinite acceptance of Ms Brown working part-time, and Ms Brown agrees that there may have been a difference in understanding between them.
Given her reduced hours, Ms Brown did not have time to perform all her previous duties. She chose to perform that part of her former duties which related to debtors, because she considered it more difficult, more stimulating and therefore more therapeutic than the work dealing with creditors.
On 7 April 1995, in consultation with Ms Brown, the Company engaged a casual employee, Ms Karen Loy, to assist Ms Brown. Ms Loy did the work relating to creditors, working eighteen to twenty hours a week over five days, including six hours on Wednesdays.
After gradually increasing her hours to four six-hour days per week, Ms Brown realised by September 1995 that she was medically unable to cope with that workload, and reduced her hours to four four-hour days per week. These continued to be her hours of work over the next year, commencing at 7.30 am and ending at 11.30 am each day, with Wednesdays off. In addition to the wages received for her part-time work, Ms Brown received additional motor vehicle insurance payments to leave her with the equivalent of her former full-time income.
Ms Brown’s specialist, Dr Winsor, met with Mr Mulholland in December 1995 to discuss the nature of her condition. (While Dr Winsor’s facsimile indicates that at that time Mr Mulholland stated to him that Ms Brown’s then current hours of sixteen hours per week were acceptable, this was contested by the Company at the time the document was tendered and therefore I have had no regard to that statement).
Ms Brown worked in the mornings and Ms Loy worked in the afternoons. Their hours were designed to ensure that there was a staff member present at most times to answer general account queries. Any queries relating to debtors were noted down and forwarded by Ms Loy for Ms Brown to follow up when she was next working. Similarly, any queries relating to creditors were forwarded by Ms Brown for Ms Loy to deal with when she was next working.
Ms Tammy Drake was employed as a casual full-time employee on 15 July 1996, apparently because the debtors and creditors area was judged by Mr Mulholland to need some additional short-term support. The reasons for hiring her included the fact that Ms Brown and others were due to take annual leave.
On 1 August 1996, a new Manager, Mr Jay Beveridge, was appointed to the Alice Springs Store.
Mr Beveridge says that, prior to taking up the position, he was briefed by Mr Shalders (by then promoted to a national management position) and Mr Ian Duncan (Mr Shalder’s successor as Queensland/Northern Territory General Manager) about Ms Brown’s situation and difficulties arising from it. He was also briefed on his arrival at Alice Springs by his predecessor, Mr Mulholland.
Mr Beveridge was told that things were not running as smoothly as they should be, and that unless Ms Brown was able to return to work full-time in the near future then the situation would have to be “readjusted”. He was told that Ms Brown knew that that was the situation and that she had agreed. (There was no direct evidence to that effect).
Having been briefed on the difficulties arising from Ms Brown working part-time, Mr Beveridge sought information as to Ms Brown’s progress toward and the likelihood of a recovery, both directly from her or by seeking to meet her doctors with her permission. He says he wanted to gauge how long it would be before Ms Brown could come back to work full-time, because the Company would wait longer to resolve the situation if it looked like she would ultimately be able to come back full-time. He was unsuccessful in obtaining that information.
Ms Brown acknowledges that Mr Beveridge approached her at least three or four times in the period from August to October 1996, and asked her when she could return to work full-time. Ms Brown says that at that time she did know whether she would ever be able to return to work full-time. She thought she might, and was hoping that she could. She could not, however, indicate to Mr Beveridge any length of time by which she might be able to achieve full-time employment. She told him she wanted return to work full-time as soon as she were medically able. He recalls her adding that she doubted very much whether it would ever happen.
The medical chronology indicates that Ms Brown had been advised on 20 September 1995 by Dr Mark Reid (Medical Consultant in Forensic and Neuropsychology) that her recovery in the long run would be incomplete. However, as her condition had not stabilised at that time, he could not predict the degree of disability. It would, I suppose, be possible that Ms Brown might have recovered sufficiently to be able to work full-time, without having made a complete recovery to her pre-injury status.
Since the accident, Ms Brown has continued to see a range of medicos. Specifically, she sees:
· her local general practitioner, Dr Ingamells, each fortnight;
· her clinical psychologist, Mr Michael Tyrrell, for monthly treatment and assessment; and
· her specialist, Dr Winsor, when he travels up from Adelaide every six to eight weeks.
She says that she invited Mr Beveridge to accompany her to a scheduled appointment with Dr Winsor in late September or October 1996, but that Dr Winsor cancelled his trip to Alice Springs on that occasion. She did not see Dr Winsor again until after the termination of her employment.
Mr Beveridge claims that he requested to see Ms Brown’s doctor soon after he arrived and on several later occasions, without success. He does not recall ever being told by Ms Brown of an appointment or given a date for a doctor’s visit. “It was always ‘okay, yes, we’ll do that’, but it never happened”. He recalls on one occasion learning that Ms Brown had seen her doctor and being annoyed that he wasn’t asked to go along. It may be that Ms Brown intended to invite Mr Beveridge to accompany her to Dr Winsor’s next visit, but that the visit was cancelled before she had communicated the invitation to him.
It was apparent from his evidence that Mr Beveridge ultimately came to the view that it was unlikely that Ms Beveridge would ever be able to return to work full-time, but that she was avoiding having to admit that to the Company and, perhaps, to herself.
In the course of her evidence, I asked Ms Brown what her current understanding was as to whether she would ever have been able to work full-time again in the debtors and creditors clerk position, as she used to before the accident. Her response was “well, now I know I won’t be able to”.
Ms Brown became understandably upset at that point in her evidence, and I called a short adjournment. When we resumed, she indicated that she believed she had misunderstood my question, and advised that she was meeting with a specialist the next month (June 1997) to determine her long-term injury effects, which would also include whether she will be able to go back to work full-time. She said she was still hoping that she could return to work full-time in the future.
Mr Beveridge says that in the three months between his arrival at the Alice Springs Store and the decision to terminate Ms Brown’s employment, he was monitoring and assessing how the Store was running, what sort of job Ms Brown was doing and whether or not it was necessary for one full-time employee to do both the accounts payable and the accounts receivable jobs.
He concluded that, while Ms Brown was performing satisfactorily given the hours she was working, the splitting of the jobs into two part-time “shifts” caused communications problems, diminished customer service and affected his ability to obtain accurate and comprehensive reports of the accounts position at any given time.
Ms Loy’s employment was terminated by the Company on 12 September 1996. She had been offered full-time employment, but declined due to personal commitments. Her accounts payable role was taken on by Ms Drake, who was working full-time.
Mr Beveridge’s evidence suggested that it was his decision to employ Ms Drake. However, the dates provided by the Company indicate that she was employed before his arrival. It may be that he extended what would otherwise have been purely “relief” employment. He says that while the need to fill in for employees on leave was a short-term reason for employing Ms Drake, a longer term reason was the need to have a full-time employee in the accounts section to “cover the bases”.
In about October, Mr Beveridge’s superiors sought a report on the situation. They were concerned about the costs of employing more than one employee in the accounts section. He advised them that he doubted that Ms Brown could return to work full-time. On instruction from his superiors, Mr Beveridge sought advice from an employer association about Ms Brown’s situation, and was advised that she should be given the opportunity to work full-time before the Company considered terminating her employment.
The Company’s position is that the ultimate decision to dismiss Ms Brown was a joint management decision which cannot be attributed entirely to Mr Beveridge.
Ms Brown took three weeks’ leave in late October.
On Thursday 7 November 1996, soon after her return from leave, Mr Beveridge met with Ms Brown shortly before she was due to finish for the day. He offered her the full-time position of debtors/creditors clerk. She advised she was unable to accept, due to her inability to work full-time for medical reasons.
Mr Beveridge then advised her it would be necessary to terminate her employment, and explained the reasons. Ms Brown was shown the letter of advice from the employer association which referred to termination due to the operational requirements of the Company. No options other than termination were discussed. Ms Brown was given four weeks notice of the termination of her employment. She agreed to train her replacement. Ms Brown was told that she had the option of returning and doing casual work for the Company when it was available.
At Ms Brown’s request, Mr Beveridge prepared the following hand-written note at the end of the meeting, which they both signed:
“7-11-96.
“After discussing Pam Browns work situation (With Pam), and offering her a full time positition (sic), which Pam declined due to medical reasons I have no other alternative but to give Pam Brown one months notice which will take affect from today 7.11.96. The reason for the termination is due to the fact that after 2 year of part time Pam is unable to return to her full time position. Pam is in agreement with these reasons as a full time person is needed. I do this with full regret as Pam has been a valued employee.
(signed)
Jay Beveridge
7.11.96(signed)
Pam Brown
7/11/96”
Ms Brown says she was in a state of shock during their interview. She says it had a deep impact on her and caused a serious deterioration in her emotional state, so that she arranged to immediately see her psychologist. Soon after, she saw her general practitioner, who issued her with a medical certificate indicating total incapacity to work for a period of one month.
Ms Sue Watt, of Quality Safety and Rehabilitation, later advised the Company that Ms Brown was unable to attend work during her notice period due to illness. She says that Mr Beveridge enquired whether Ms Brown would still be available for relief work. Ms Watt responded that she wouldn’t, given her reaction to the termination.
Ms Drake continued to work full-time for the Company, performing all or most of the functions of a debtors/creditors clerk until 20 January 1997, when she left for unrelated reasons.
Ms Brown told the Court of her love of the job, and of the emotional strain she had suffered on losing it. She says the resulting stress has also affected her health. Symptoms such as sleep disorders, dizziness and loss of balance, which were a result of her injuries, had previously been controlled but had recurred after the termination. Dr Winsor’s facsimile notes that:
“It is important that Ms Brown continues to work to provide cognitive stimulation and structure to her day. Work also provides her with regular social interaction and improved self esteem. It is most important that she return to work as soon as possible. Retrenchment at this point in time can have an adverse effect on her rehabilitation with deterioration in mood.”
Happily, she had obtained temporary part-time employment elsewhere at the time of the hearing. I might also note at this point that Ms Brown represented herself in these proceedings and presented her case in an well-organised and effective manner. I was left in no doubt that she could be an effective employee within the time constraints imposed by her medical condition.
Contentions
The Company contends that it had a valid reason for the termination of Ms Brown’s employment based on the operational requirements of its business, and that the dismissal therefore complied with Section 170DE(1) of the Act.
Ms Brown denies that there was any such valid reason and contends that, because the Company terminated her employment for reasons which included the fact that she was disabled, the Company was in breach of Section 170DF(1)(f) of the Act.
The Company denies that it is in breach of Section 170DF, and contends that Ms Brown’s disability was such that she was unable to meet the inherent requirements of the position, so that the exception set out in Section 170DF(2) of the Act applies.
Whether Ms Brown’s Part-time Debtors Clerk Role was a Temporary or Permanent Arrangement
The law must be applied to the facts as the Court finds them. The Court makes its findings of fact on the evidence properly before it. It has become increasingly apparent to me as I have considered this matter that the most important factual issue to be determined is whether the role of part-time debtors clerk performed by Ms Brown was a permanent position or whether it could still be said to be being performed under a temporary arrangement. Depending upon that finding, the Company is either in the position of having to justify a change from the status quo, or merely a reversion to the status quo. The evidence available to assist me in reaching my finding on this question of fact is, however, slight.
Certainly, Ms Brown’s return to work was originally part of a rehabilitation program, supervised by a case manager. For almost a year, her hours of work fluctuated in accordance with medical advice as to the progress of her condition. Up to that point I accept that it was a temporary arrangement.
However, Ms Brown’s hours had remained unchanged for thirteen months before the termination of her employment. The last contact between Ms Brown’s medical advisers and her employer referred to in evidence occurred eleven months before her dismissal.
Mr Beveridge says he knew Ms Brown was seeing a specialist. He became aware of Ms Watt’s rehabilitation function after the dismissal.
There was no evidence that Ms Brown was still being employed pursuant to a rehabilitation program at the time of her dismissal, some two years after she first returned to work. Indeed, it appears from the medical chronology that immediately after Ms Brown’s dismissal her psychologist contacted Ms Watt of Quality Safety and Rehabilitation to ask her to assist Ms Brown with her rehabilitation. This suggests that Ms Brown’s employment was not being supervised by a rehabilitation case manager at that time, which suggests that the program had concluded.
The Company contends that the job share arrangement was temporary. The fact that Ms Loy’s employment remained classified as “casual” for more than sixteen months is an indication that the Company continued to regard the arrangement as temporary. Ms Brown’s role had, however, remained unaltered for more than a year.
Were there evidence that the supervised rehabilitation program was ongoing, then I would have found that the arrangement remained temporary, notwithstanding its longevity. The onus was on the Company to adduce such evidence, if it existed.
Mr Beveridge says that when Mr Mulholland briefed him, he indicated that the problems with the job-sharing arrangement had been discussed with Ms Brown, and that she was aware the situation was unsatisfactory. However, this is not direct evidence of the proposition that Ms Brown was party to such discussions. The only direct evidence I have on the matter is that of Ms Brown, who says she was led to believe that her position was permanent and was never told prior to Mr Beveridge’s arrival that management were not satisfied with the job sharing arrangement. No evidence was led by the Company to contradict that evidence.
On the evidence before me, I find that the arrangement had, by the time of Ms Brown’s dismissal, become permanent, so that she was employed as a permanent part-time debtor’s clerk.
I appreciate that the Company’s delay in addressing management’s apparent dissatisfaction with the job-sharing arrangement may have resulted from a wish to maximise Ms Brown’s opportunity to recover, or from a reluctance on the part of Mr Mulholland to confront what may have been a decision attended with some personal discomfort.
However, Ms Brown says she believed that the part-time position she was performing was permanent. On the evidence before the Court, an objective observer would have concurred with that conclusion. Having sat on its hands and held its tongue for so long, for whatever reason, the Company cannot now contend to the contrary.
Whether There was a Valid Reason for Termination
Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment based on the operational requirements of the undertaking, establishment or service for the purposes of Section 170DE(1).
Satisfying the onus on these facts involves establishing two propositions.
First, the Company must show that the operational requirements of the Alice Springs Store required that the roles of the creditors clerk and the debtors clerk again be fused into a single debtors/creditors clerk role, to be performed by one person working full-time (as Ms Brown had originally performed it), rather than by two part-time employees.
Secondly, the Company must show that Ms Brown could not or should not have been selected to fill that full-time role (given the evidence that Ms Loy was not willing to work full-time).
Whether the Alice Springs Store Required a Full-time Creditors/Debtors Clerk
With regard to the first proposition, the Company’s contention is that it is necessary to provide a facility whereby their customers or suppliers may make enquiries in relation to both debtors and creditors, at their choice, during any of the store’s advertised business hours. It contends that offering customers a limited opportunity to follow up on requests or enquiries during a four hour period on four days a week does not meet customers’ needs or expectations, and that it is therefore ineffective to have the functions of debtors clerk and creditors clerk performed by different people unless there is sufficient work to employ two full-time employees.
The Company’s further contention was that it was prepared to impose those constraints on its customers for a limited period of time until Ms Brown had fully recovered from her injury, but that it was not acceptable or efficient in its view to have such an arrangement in place on a permanent basis.
Given my finding that it had in fact become a permanent arrangement, the corresponding contention would be that, while the Company had the job-share arrangement in place for two years, it was entitled to restructure the positions to provide a single employee to whom customers or suppliers could make enquiries about debtors or creditors throughout the store’s business hours in order to better meet the store’s operational requirements.
A termination of employment will be shown to be based on the operational requirements of an undertaking if the action of the employer is necessary to advance the undertaking and is consistent with management of the undertaking that meets the employer’s obligations to employees: Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 per Lee J at 373.
The employer is required to show that the reason for termination alleged to be based on operational requirements was in fact justified and objectively defensible in the circumstances: Kerr v Jaroma Pty Ltd (1996) 70 IR 469 per Marshall J at 476. Proof that the employer acted in the belief that the termination was based on the operational requirements of the business is insufficient: Nettlefold v Kym Smoker Pty Ltd at 373. See also Thomas v Lynch (Unreported, IRCA No. 627 of 1996, Wilcox CJ, 20 December 1996).
At first sight, the Company appeared to have two reasons for the dismissal. From Mr Beveridge’s perspective, having a full-time employee solved various problems with regard to communications and customer service. From his superiors’ perspective, there was a perceived need to reduce the wages bill for the Alice Springs store’s accounts section.
Given that at one stage the store had three employees dealing with accounts (namely Ms Brown, Ms Loy and Ms Drake), the wage bill attracted the scrutiny of senior management. Mr Beveridge was told by Mr Shalders and Mr Duncan, and then by Mr Mulholland, that the Company had to make a decision based on expense. Alice Springs was a small branch and there were too many overheads.
According to Mr Beveridge, the cost of the casuals was the issue for his bosses; what he thought about it really didn’t matter, because he did what he was told.
The Company tendered a letter which purported to show additional costs incurred by the Company as a result of accommodating Ms Brown’s special needs. It was apparent, however, that the only additional cost was the wage of Ms Drake. Employing Ms Drake as an additional full-time employee would not have been justified by the workload if both Ms Brown and Ms Loy had remained.
Ms Loy’s casual loading merely reflected the accrued entitlements she was foregoing as a casual employee, and in any event she was no longer employed after mid-September.
Ms Drake was apparently also performing other duties outside the accounts section, which she would presumably not have been able to perform had she been performing Ms Brown’s role.
I am not satisfied on the evidence before me that the job-sharing arrangement need necessarily have resulted in additional cost outlays to the Company. Rather, the additional cost of employing Ms Drake for other than purely relief purposes was the result of Mr Beveridge’s judgment that the job share arrangement was not adequate.
Therefore, the key reason management considered the termination of Ms Brown’s employment was the perceived need to have both the debtors and the creditors tasks performed by one full-time employee who would be available to customers and suppliers throughout the working day.
There was evidence that it was a standard practice within the Company for a full-time employee to perform the duties of the debtors and creditors clerk. That was the arrangement in the Company’s other 86 stores, as it had been the arrangement at the Alice Springs store prior to Ms Brown’s injury. In bigger branches, a full-time person could be employed to do each job.
The Company tendered job description documents for the positions of “Accounts Payable (or Creditors) Clerk” and “Accounts Receivable (or Debtors) Clerk”. It appears that these were prepared before Ms Brown’s accident, and Ms Brown has indicated by her signature that she adopted them at the time.
The responsibilities and authority of the positions are described as follows:
“Accounts Payable Clerk:
1.Answer incoming calls where required.
2.Process all creditor invoices - Work Instructions 3.1.4.
3.Raise credit claims on Suppliers - Work Instructions 3.1.3.
4.Balancing Cash Till - Work Instruction 6.5.7.
5.Inform Buyer of incorrect prices in Computer System for rectification.
6.Attend specific training courses and pursue personal study to maintain a high level of product knowledge and servicing skills.
7.Liaise with Regional Officer where required as to cut off dates etc., on paperwork.
8.Attend Branch Meetings when requested.
9.Raise Non Conformance Reports regarding suppliers prices if required.
10.Other duties as directed by the Branch Manager.
11.Undergo scheduled Product and Procedure Training.
12.Ensure all tasks are performed correctly the first time.
13.Record Customer information requiring updating on computer and pass to Branch Manager.
14.Identify opportunities for improving the way in which tasks are carried out and passing these recommendations to the Branch Manager.
15.Undertaking any other duties which may from time to time be requested by the Branch Manager.
16.Attend Branch Meetings as required.”
“Accounts Receivable Clerk:
1.Maintain Debtor accounts and monitor to ensure that days outstanding are within company guidelines.
2.Action new account forms ensuring all data is accurately transferred to computer system and customer is advised on status of account.
3.Answer incoming calls when required.
4.Attend to ageing and banking of debtor remittances.
5.Reconcile debtor accounts and follow up with customers.
6.Liaise with Branch/Sales Manager and Account Managers for direct collections.
7.Attend specific training courses and pursue personal study to maintain a high level of knowledge and skill in area of Debtors.
8.Raise Internal Credit forms from the information in the Returns Book, Work Instructions 10.3.1.
9.Enter Credit Notes after approved into the computer system, Work Instructions 10.3.1.
10.Enter Credit Note number and date in the Returns Book, Work Instruction 10.3.1.
11.Attend Branch Meetings when requested.
12.Be fully conversant with the Blackwood Group Policy and Procedures Manual and Work Instructions where specifically mentioned.
13.Raise Non Conformance reports if required.
14.Other duties as directed by the Branch Manager.”
Of the duties of the accounts payable clerk or the accounts receivable clerk positions, it would seem that only:
· the answering of incoming calls when required;
·the following up with customers concerning debtors accounts; and, possibly
· the attendance of branch meetings when requested
would potentially require full-time attendance at the office.
Ms Brown and Ms Loy had a system of work in place whereby messages were taken, which Ms Brown says worked well and made full-time attendance at the office unnecessary.
Clearly, the message system, by definition, could sometimes cause delay in resolving customer queries, though usually the delay would be of no more than half a working day. One might also assume that the problems arising from Ms Brown’s non-availability in the afternoon might be amplified in the context of communications concerning debt control, where one might suppose that the parties being “followed up” would not always be equally eager to communicate.
The issue is whether this was the only problem, and whether these occasional delays objectively justified the change from the job-share arrangement.
Mr Beveridge gave some evidence on the state of affairs under the job sharing arrangement, a state of affairs he frequently characterised as “chaos”.
His evidence was that the Company received telephone calls from debtors and creditors throughout the working day, from 7.30 am to 6.00 pm. When nobody is there to be able to help the callers, problems arose. He suggested that sometimes phone calls don’t get returned. As he put it:
“...when someone rings up in the morning and says, ‘I was talking to Pam sorting this problem out; is Pam there?’ And we say, ‘No, Pam’s not here at the moment but we’ve got another lady to help’, People don’t like that. ... We built our reputation on customer service. If we’ve got to continually do those sort of things, it just doesn’t work.”
Mr Beveridge says that two people working at different times with no communication, in their style of business with the amount of different goods they sell causes huge problems. It is desirable that one person have the “whole picture”. “Somebody must be there that knows what’s happening all the time”. “Somebody needs to have their finger on the pulse”. Mr Beveridge adds that:
“With approximately 500 different customers, someone might ring me up this morning and say, “Look, I need a copy of that invoice, because I’m not paying because there’s something wrong with the invoice”. They could do that to Pam in the morning, but then in the afternoon... if it doesn’t get done or there is another query, the other girl has no idea of what’s going on. So there’s got to be that... consistency of the one person there.”
He says that the head office gets asked questions the store has already solved. The part-time employees can’t report to the store manager at the end of the day on everything that’s been done, whereas when one person was doing it all, he seemed to get the whole picture.
In Mr Beveridge’s view, the two jobs go hand in hand. With one person doing them, as is the case now, there are no problems.
There was no further detail concerning the extent of this “chaos” or the nature of the “problems”. It was troubling that no specific examples were given. Mr Beveridge’s language could be understood as an a priori examination of the problems which might arise rather than a recitation of actual problems which in fact did arise.
There was, moreover, no evidence - specific or general - of any complaints having been received. It may be that it would not have been necessary to call specific complainants to give evidence (eg Venn v Wesfarmers Limited, unreported, IRCA No. 128 of 1997, RD Farrell JR, 16 April 1997), but one might have expected some evidence to the effect that complaints were in fact received.
Ms Brown disputes Mr Beveridge’s evidence concerning customer service and communication.
She says that there was never any advice to her from management that this arrangement was not practicable, not working, or not meeting the Company’s requirements. She says she was never advised that her absence due to her part-time hours was of concern.
She says she was never advised of complaints from clients. She adds that her clients, many of whom she had come to know before the accident, appeared to readily accept her impairment and the consequential limit to her hours of employment. While dissatisfied customers would be likely to be reluctant and embarrassed to raise any concerns they might have with Ms Brown directly, so that one might expect any complaints to be directed elsewhere within the Company, the fact remains that I have no evidence of any such complaints being received.
The Company led evidence of the level of service it sought to provide, rather than evidence proving the level of service it’s customers demanded or expected. While I am aware that it is an increasingly accepted maxim that a service-oriented business should aspire to exceed the expectations of its customers, I am not sure that it is yet an operational requirement that they do so.
In support of her contention that the job-sharing arrangement was working efficiently, Ms Brown asserts that Mr Beveridge congratulated her one month on achieving the second best result debt control result of all the Company’s stores in Australia.
Mr Beveridge denies this. The Company adduced evidence in graph form showing the Alice Springs store’s debt control performance for 1996, relative to the Company’s other stores in the Northern Region.
These graphs show the Alice Springs store to have been consistently above the regional average in terms of the percentage of sales outstanding, both at 60 days and at 90 days. However, it was usually below the regional average (with the exception of February and March) with respect to “days sales outstanding” (presumably meaning average days outstanding). Of these criteria, the former would appear to me to be most capable of being directly affected by the efficiency of the store’s debt-control arrangements.
Other graphs in evidence showed results for all the Company’s stores throughout Australia and recorded the extent to which those stores exceeded or failed to meet the Company’s debt collection benchmarks. The bar graphs indicate that the Alice Springs store, while far from the worst performer, was almost always below the benchmarks. A good majority of the stores usually exceeded the benchmarks.
Mr Beveridge relies upon these graphs to support his evidence that he did not say Ms Brown had achieved the second best result debt control result of all the Company’s stores in Australia, because to his knowledge such a statement would never have been true. He says it might have been true on one month that Alice Springs was the second best store in the Northern Region, though he does not recollect saying so.
Obviously, the full-time availability or otherwise of the employee responsible for debt control would be only one of many factors which might affect a store’s overall performance in debt-control. For that reason alone, no great weight can be placed on the results shown in the graphs. It is fair to say, however, that they do not show a level of performance so impressive that attempts at improvement would not be justified. They do not, therefore, support Ms Brown’s case.
If the job-share arrangement was to be retained, the system of message taking and follow-up employed by Ms Brown and Ms Loy would seem to have been the best available method of dealing with enquiries received when they were not available. It might notionally have been possible for each of them to devise a system of recording their activities so that the other could, by consulting the relevant file, answer most incoming queries. However, such detailed recording would take time and would itself reduce the efficiency of their performance, while still not producing as satisfactory a result as would be achieved if the client were dealing with the same person. While Ms Brown was not given the opportunity to suggest alternative arrangements, no such alternative was proposed in the course of the meeting.
In conclusion, I find on balance that the Company’s decision that the Alice Springs store required the debtors and creditors clerk positions to be performed by a single full-time employee was justified and objectively defensible. The manner in which Mr Beveridge gave his evidence was somewhat ambiguous, and I am satisfied that it was an exaggeration to describe results of the job-share arrangement as “chaos”. However, an a priori consideration of the job-share arrangement in these circumstances does point to likely problems, and despite the ambiguity of his language I was satisfied, while hearing his evidence, that Mr Beveridge was referring to the type of problems which did occur on occasion, rather than speculating on problems which might arise. More specificity in his evidence would have strengthened the Company’s case, considerably.
It might be argued that though the job share arrangement was not the ideal arrangement, it was “good enough”.
In Nettlefold v Kym Smoker Pty Ltd at 373, Lee J points out that the Act does not define the term “operational requirements”. He observes:
“Obviously it is a broad term that permits consideration of many matters including past and present performance of the undertaking, the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking.”
The Company’s decision falls within the ambit of those observations. Just as a Company is entitled make changes to make a profitable business more profitable, so it can make changes to make an adequate arrangement better.
I will note in passing at this point that there were occasional references in the evidence to possible shortcomings in the way Ms Brown went about her job; this was usually because Ms Brown raised these suggestions in order to rebut them. Certainly, the Company’s position in the course of the hearing was that Ms Brown’s performance and conduct in her job were satisfactory; there was no contention from the Company that there were shortcomings in the performance of her part-time role such as would give rise to a valid reason for the termination of her employment. Rather it was problems inherent in the work being performed part-time that led to the change.
Whether Ms Brown Should Have Been Selected to Fill the Full-time Position
With regard to the second proposition, Ms Brown concedes that she was not medically able to work full-time as at the date of the termination of her employment.
I therefore find that the Company was not in breach of Section 170DE(1) of the Act.
Whether Ms Brown’s Disability Prevented Her From Satisfying the Inherent Requirements of the Position
Clearly, Ms Brown’s disability was a reason for her dismissal.
However, at the first glance, having found that there was an operational requirement that the Alice Springs store revert back to having its debtors and creditors function performed by one full-time employee and that Ms Brown was, due to her injury, unable to work full-time, it might seem obvious that Ms Brown’s disability prevented her from satisfying the inherent requirements of the particular position. It would follow that the Company was not therefore in breach of Section 170DF of the Act.
However, Justice Marshall considered the relationship between Sections 170DE and
170DF in Christie v Qantas Airways Ltd (No 2) (1996) 68 IR 248, a decision of the Full Court of this Court which is the leading authority on Section 170DF(2). Marshall J observes, at 269:
“Section 170DE(1) of the Act recognises that an employer may have a valid reason for the termination of an employee’s employment based on the operational requirements of the undertaking, establishment or service of the employer. But such a reason will not be a valid one... if it involves a breach of s 170DF(1) of the Act. In such circumstances s 170DF(2) of the Act should not be construed as providing an exception to s 170DF(1) of the Act regarding an issue relevant to the operational requirements of the employer simply because of some difficulty or inconvenience which may affect the employer’s operational requirements, due to the reinstatement of the employee.”
Mr Christie was employed by Qantas as a pilot to fly B747-400 aircraft internationally as a captain. He was dismissed when he reached sixty years of age. The laws of numerous nations to which or through which Mr Christie was required to fly provide that pilots over sixty years of age were not permitted to land or, in some cases, fly over them. This meant that Mr Christie would only have been able to captain the B747-400 aircraft on Qantas flights to Indonesia, Fiji and New Zealand. At first instance, Wilcox CJ found that to make up sufficient hours in order to complete his ordinary working hours, Mr Christie would need to use a “large proportion” of Qantas’ short flights, and that if a substantial proportion of short flights were allocated to Mr Christie, Qantas would be unable to fully use all its other B747-400 Captains. It seems likely that the short flights would also have been regarded by his fellow pilots as easier and more attractive.
The majority held that it was not an inherent requirement of Mr Christie’s position that he be under 60 years of age. In so holding, Marshall J noted that it was possible for Mr Christie to be rostered so that he is able to perform his duties as a B747-400 Captain.
If Wilcox CJ were correct in his findings concerning the operation of the roster system, this would appear to potentially require Qantas to employ more captains than they would otherwise need to. The majority appear not to have regarded this as relevant.
Justice Gray, in the context of his consideration of the need to change Qantas’ rostering arrangements if a pilot over age sixty were to be retained, states at page 261 of his reasons that:
“Efficiency might have to be sacrificed in order to avoid unlawful discrimination”.
Thus it might be that while Ms Loy (who was apparently merely unwilling to work full-time) could legally have been dismissed, Ms Brown (who was unable to work full-time due to her disability) was not.
In Cochrane v Stirling Community Hospital (Unreported, IRCA No 56 of 1995, Farrell R.D. J.R., 21 February 1996), I considered the case of a hospital kitchen hand who, due to an injury, faced some restrictions on the weights she could lift. However, the staffing levels in the kitchen were such that it was possible for her to be assisted in the small proportion of the kitchen hands’ duties she was unable to perform, and instead perform more of the other duties she could perform. I thus held that she was able to satisfy the inherent requirements of the position, and that Section 170DF of the Act had been breached.
There are similarities with an analogy employed by Justice Spender in his dissenting judgment in Christie v Qantas Airways Ltd (No 2) at 255. He gives the example of a house painter employed by a painting company, who had over his years of employment painted entire walls and ceilings, but who late in his career was unable to use trestles and ladders, so that he could only paint those parts of the wall he could reach by standing on the floor. In Justice Spender’s view, it is no answer to say that the painter could still wield a paintbrush and apply paint to areas of walls, provided those areas were parts that could be reached by standing on the floor. Nor is it an answer to say that the painting company has other painters who could do the high parts. Justice Spender regarded the inequity that would flow from making arrangements so that all the easy bits were done by this particular painter with the more difficult bits borne by his workmates as a relevant consideration in determining what were the inherent requirements of the position.
However, the majority decision suggests that equity to workmates, as well as efficiency, must yield if necessary to avoid unlawful discrimination.
In considering whether Ms Brown’s disability prevented her from satisfying the inherent requirements of her particular position, I must first determine which is the relevant position. Is it the part-time debtors clerk position she was performing at the time of her dismissal, or the full-time debtors and creditors clerk position which the Company intended to reintroduce?
If it is the part-time position, then the issue doesn’t arise, because Ms Brown could satisfy the requirements of that position. Given that I have held on the evidence before me that the part-time debtors clerk position had become a permanent position as at the date of termination, I find that it was the “particular position” for the purposes of Section 170DF(2) of the Act, and that the Company is therefore in breach of Section 170DF of the Act.
It may be that an employer could on occasion successfully argue that the circumstances of the employment were such that the position must be changed so as to introduce new inherent requirements. However, given the narrow construction of the Section 170DF(2) defence expounded in Christie, I cannot find that this is such a case.
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.
Ms Brown was earning $193.38 per week for her 16 hours work. There is nothing to indicate that she would not have continued to work those hours for the foreseeable future. The hearing was conducted in May 1997, just over six months after Ms Brown’s dismissal and just more than five months after her notice period expired.
I accept that the dismissal and her response to it had an adverse effect on Ms Brown’s employability. Nevertheless, Ms Brown made numerous efforts to obtain alternative employment, aided no doubt by Ms Watts. Those efforts are catalogued in a document tendered in the course of the hearing. I am satisfied that she has made reasonable efforts to mitigate her loss.
At the time of the hearing, Ms Brown had received confirmation of temporary part-time employment as a telephone receptionist for four to six weeks. There was no evidence as to the income she was to earn in that position. It appears it was a relief position while the usual receptionist was absent for surgery. It is unlikely therefore to evolve into a full-time job.
I am not able to award compensation greater than the amount of remuneration that would have been received by the employee in respect of the period of 6 months that immediately the date of termination: Section 170EE(3)(a) of the Act.
Having already sustained a loss of about five month’s income as at the date of the hearing, I am satisfied that it is more likely than not that Ms Brown would have go on to sustain a loss in excess of six month’s income in the months following her temporary receptionist’s position, given the difficulties she faces in finding suitable employment.
Conclusion
I will therefore order that the Company pay her compensation of an amount equal to six months’ salary, which I calculate to be $5,028.00.
I certify that this and the preceding twenty four (24) pages are a true copy of the Reasons for Decision of RD Farrell, JR.
Associate:
Date: 24 October 1997
APPEARANCES
The Applicant appeared in person
Representative of the Respondent: Mr A. Saundry
Northern Territory Chamber of Commerce
and Industry Inc.
Dates of Hearing: 22 & 23 May 1997
Date of Judgment: 24 October 1997
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