Cladouhos and State Rail Authority

[1995] IRCA 251

[INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY DISTRICT REGISTRY  No. NI 0481 of 1994

BETWEEN:

CLADOUHOS
Applicant

AND:

STATE RAIL AUTHORITY
Respondent

BEFORE:                LOCKE JR
PLACE:                   SYDNEY
DATE:  29 MARCH 1994

REASONS FOR JUDGMENT

Ex tempore as revised from transcript

The first applicant in these proceedings approaches this court under section 170EA seeking the following orders:

1a. An order declaring that the termination of the employee's employment with the employer contravenes division 3 of part VIA of the Industrial Relations Act 1988 to an interim or;

1b.      Interlocutory order preventing the dismissal taking place, and,

2.        Such other orders as will put the employee in the same position as nearly as can be done as if the employment of the employee by the respondent had not been terminated. 

I assume that only order 1a and order 2 are being pursued by the applicant.
The applicant is a 59 year old male person who commenced work with the State Rail Authority of New South Wales as an electrical mechanic on 31 May 1965.  On 15 June 1994, he received written notice of his termination with that establishment and he was actually terminated on 8 July 1994.  The reason given for the termination of the applicant's employment was partial incapacity.  The applicant has filed an affidavit in the proceedings as well as giving oral evidence.  In his affidavit, the applicant sets out the various duties that he performed when he first commenced working with the SRA. He said that initially or up to 1988 he had had assistance in lifting heavy equipment and after that as a result of organisational changes in the workshop he had to lift by himself.

As a result of this, in about September 1989, he was lifting a starter motor weighing 36.5 kilograms and while he was doing so, he injures his back and he eventually went off work and he underwent physiotherapy in relation to the injury sustained whilst lifting this heavy object.  He returned to work and continued to perform full duties as an electrical fitter but on 6 December 1991 he was again lifting one of  these heavy starter motors and he experienced severe pain in his back.  This time the pain radiated into his left leg and he stopped work immediately.  He was off work for approximately four months, returning there on 6 April 1992 and performed his full duties for three weeks.  After that, due to increasing pain in his back, he took further time off work and returned later on in the year, to work light duties but as an electrical fitter.

He had various jobs to do in this capacity in the performance of these duties as an electrical fitter.  He sets them out in paragraph 14 of his affidavit.  He says in paragraph 15 that although he had various periods off work due to pain in his back he was able to cope with the light duty work adequately.  He says that he suffered a minor heart attack, in about July of 1983 and this coincided with him taking his long service leave and the only time he had off work was three sick days because of this condition.

He intended to return to work on 15 November but prior to his resumption he received a letter from the respondent notifying him that his employment had been terminated for medical reasons.  He contested this and the letter was withdrawn.  This could, in no way, have constituted a warning for June termination as submitted by Mr Kite for the respondent.  It would be no more than that in November of 1993 the respondent was looking to its operational requirements and decided to terminate the applicant's employment on medical grounds.  What occurred in my view is, the applicant refused to accept the repudiation of his services by the respondent and the respondent withdrew that repudiation and the employer/employee relationship remained on foot, a fresh beginning, so to speak.

Upon his return to work, the applicant was, on 1 February 1994, immediately placed on a rehabilitation programme.  Ms Jane Robinson of the Commonwealth Rehabilitation Service was in charge of the programme and she gave evidence in these proceedings.  A functional test was conducted on the applicant and as a result of that test, interalia, it was decided that the appropriate weight for the applicant to lift during this rehabilitation period was five kilograms.  Dr Costa who is the applicant's treating doctor gave evidence to the effect that he was of the view that a this particular point in time that the applicant would be able to lift weights to the extent of ten kilograms and he based this opinion on a functional test conducted by him nearly two years previously.

I reject the evidence give by Dr Costa on this point because he had no part in the conducting of the functional test in 1994 and there was no testing of this evidence either in examination in chief or in cross-examination as to the accuracy or the properness of the conduct of this particular test and I must be bound by what the results of the functional test in 1994 were.    Now this is an objective test and no matter what the applicant says in respect of  his being able to lift ten kilograms, I must reject that evidence on the basis that there is nothing to support the fact that he tried to lift that weight after he returned to the respondent's employ on 1 February 1994.  So it is mere speculation on his part and I must be bound by the results of the functional tests as to weight limits which were recommended by Ms Robinson and others based on that 1994 test.

The applicant said that when he was on this programme he was allowed to work on interlock switches which were very light, although he was capable of performing all the duties that he had been performing previously.  There is no evidence to suggest that he had even attempted to perform these duties, so there must be no finding on this point.  He says that on the commencement of this programme, he worked for four hours a day for three days in the week in the first week building up to the fifth week and then returned to the standard hours for five days a week.  During this time he did not have any time off work on account of his back.  I accept this was so in the light of later evidence.

The applicant deposed to the fact that the programme finished on 27 May 1994.  The reason that it finished at this particular time was because the rehabilitation provider in the person of Ms Jane Robinson was of the opinion that:

"As every effort has been made to return Mr Cladouhos to work but without success it would seem that rehabilitation at this point of time would not provide Mr Cladouhos with significant gains.  All possible rehabilitation strategies have been utilised.  Dr Costa has been made aware of rehabilitation interventions throughout the duration of the case."

That being so she sent this report to the State Rail Authority.  After round-table conference on the contents it was concluded that the applicant's employment ought be terminated on health grounds.

Mr Norman Cahill swore an affidavit in the applicant's case on 23 January 1995.  There are certain aspects of that affidavit which were objected to but in the main Mr Cahill said that he is employed as a chief executive officer of the national Electrotechnology Industry Training Company.  At the time of the applicant's dismissal he was the state organiser of the Electrical Trades Union.  Part of his duties was responsibility for the ETU members employed by the State Rail Authority for four years on his own and before that jointly  with another person.

Prior to his becoming a state organiser he was employed as an electrical fitter with the SRA for 16 years. He deposes:

"On my work as an electrical fitter at the SRA in the main involved maintenance work on suburban trains.  This includes benchwork, motor rewinds, line switch, interlockers, etcetera, work similar to that of the applicant.  Currently there are a number of ETU members on light duties with the SRA -."

Then he gives his view as to what happened prior to 1987:  that various injured employees of the SRA who were able to perform light duties continued in their employment till they terminated their employment of their own volition or reached retiring age.  It appears to me that a lot of Mr Cahill's evidence is past tense and not very much regard could be had to it.  However, for what it is worth, in late June 1994, he says he received a phone call from the applicant who told him he had been sacked and they (SRA) were calling it medical retirement and he made some efforts to prevent the applicant's termination.  He inspected the work area and he had some conversations with various personnel at the SRA.

He also attended a meeting there on the applicant's behalf and there was a conversation which took place which was objected to on the basis that is was contradictory with that given by the witness for the respondent.  In the absence of the witness being not here for cross-examination, that was rejected.  In the main, I did not find that affidavit very helpful, but it was some evidence as to the type of work the applicant was doing and the policy of the State Rail Authority at a particular point in time, if I may say, in the long since.  Otherwise, it did not take the applicant's case very much further.

There were various witnesses called for the respondent, including Mr Tonna.  He also swore an affidavit in this matter and the main purport of his affidavit was this:  that he was an employee of the State Rail Authority at the electrical maintenance centre at Chullora.  He commenced there as manager in 1993 and he was briefed by the previous production unit manager and Cynthia Lee, the workplace rehabilitation coordinator.  During the course of the briefing he was made aware that the applicant was undertaking a rehabilitation programme under the supervision of the Inner-West Rehabilitation Service and Dr Costa.  He also gave evidence of that fact that the applicant had previously undertaken a rehabilitation programme.  The evidence is studded with such assertions.

In relation to the rehabilitation programme that took place from 1 February 1994 to 27 May 1994, the applicant has complained that he was not informed about what was going on.  His permission was not asked.  I do not think that  particular evidence turns very significantly in what I will ultimately find.  But I a satisfied, hearing the evidence that was given by the witnesses for the respondent on this point, that the applicant was sufficiently informed as to what was going on and to the purpose of that particular exercise then being undertaken.

In relation to Mr Tonna's affidavit:  he says that when the applicant was under the Inner-West Rehabilitation Scheme he knew that he could not lift more than 12 kilograms and he allocated appropriate work to him in this regard.  He then goes on the say that in February 1994 the applicant returned to work following a period of absence and at that time the Commonwealth Rehabilitation Service (CRS) were engaged to develop a rehabilitation programme for him.  He had discussions with the consultant from CRS about the programme and a copy of the programme was annexed to his affidavit and marked A.  Cross-examination of the particular programme was conducted by the counsel for the applicant when Ms Robinson gave her evidence for the respondent.  Mr Tonna said that he allocated all work to the applicant that accorded with the programme.  He sets out the sort of work that he did and it seemed appropriate in my view.  During the programme, he also deposes that he had regular discussions with the rehabilitation service provider and the occupational health and safety coordinator and the applicant to review and assess the programme.  He denies at any time that he told the applicant that he had failed the rehabilitation programme.  But what he say most importantly, in paragraph 10 of his affidavit:

"Is because of the progressive retirement  of the relative locomotives fewer interlocks are now required and there is not in my assessment sufficient suitable work for the applicant."

He referred to the affidavit of Norman Cahill and he refuted certain aspects of that conversation.  But the important matter, so far as the substantive issues of the applicant are concerned, are those referred to in paragraph 10 of Mr Tonna's affidavit.

There is no doubt in my mind of the appropriateness of the limitation of the weight the applicant ought be lifting - 5 kilograms.  I accept the assessment made by the rehabilitation provider.  The applicant alleges that he could lift heavier objects but there was no evidence to support a proposition that he could in fact lift greater weight or in fact he had attempted to so do.  This evidence amounts to sheer speculation.

Mr Tonna, in his evidence, was cross examined as to what occurred at the termination meeting and he told the court that Mr Fuller was there.  It took place in Mr Fuller's office and Mr Fuller did the talking whilst Mr Tonna was present.  It was put to him that he did say to the applicant that he had in fact failed the rehabilitation programme.  He denied that again.  Then it was put to him:

"That you had a discussion with Mr Cladouhos, did you not, in the building?"

"Yes."

"When you left Mr Fuller's office?"

"Yes."

When the applicant was in the office he was asked:

"And yourself he did not say very much at all, did you?"

And the answer was:

"Not a great deal."

Then outside he said they left the offices.  The applicant was understandably upset and he said words to the effect:

"Why are they doing this to me?  You know I've worked for the railways for 40 years."

He said he was trying to calm him and he was agitated and visibly upset and that again is quite understandable.

Further cross examination took place directed towards the undertakings of the Commonwealth Rehabilitation Service on 1 February and May.  Details were also sought as to the requirements of performance by the applicant on the interlocking switches.  Miss Cynthia Lee's name was raised and the witness was asked if he knew her.  Upon responding in the affirmative, this question was directed to him:

"Did you not say that you need Mr Cladouhos in the workshop?"

He replied:

"No."

He said he had no recollection of saying that to her.

The court heard from Miss Cynthia Lee who is the occupational, health, safety and rehabilitation coordinator of the State Rail Rehabilitation Centre at Chullora.  She first knew the applicant in 1991 or 1992, she could not be quite sure of that.  She knew that he was injured in 1991.  She had some dealings with him in relation to his second accident and she went to him she said and explained the rehabilitation pamphlet for him and asked him if he needed any assistance, if so, she would readily provide the applicant with any clarification.  Then she was asked did he have an interpreter there at the time, to which she responded, "No."

Then cross-examination moved to the rehabilitation exercise in February 1994  and Miss Lee said in evidence that she:

"-monitored the progress.  I gave him assistance if he needed it and if he is at work I see him regularly."

She said that she saw him at least once a week and :

"Maybe if he called me to see him, then I'll go there."

Meaning, I would understand, that she saw him regularly once a week and if there were any further attendances required she came along.  Of course, Mr Wallace, quite properly again asked Miss Lee did she have an interpreter and she said, no, she did not, and then some questions were asked about a redeployment centre at Chullora and she said:

"Yes, it's been functioning like a redeployment centre.  The rehab policy is here to have a rehabilitation programme in the workplace."

The she was asked:

"Yes, and the centre that you were involved with then was for redeployment mainly, is that right?  Is that still functioning?"

Her answer was:

"No."

That being the case, and it being uncontroverted evidence, it would be very difficult for the applicant to have been deployed to that particular centre as he alleges he was requested to do.  Further the witness said that she was not involved in the centre at that particular time.

Then she was asked about persons other than the applicant being on light duties and she agreed that there were.  Then she was asked were some people on light duties for a number of years, and whether they continued to be on light duties and she said: "Yes"  to both propositions, that was the end of her evidence.

This morning the first person to give evidence in these proceedings was Jane Ann Robinson and you might remember that she is a Commonwealth Rehabilitation Service Provider, a well qualified person.  It was she who worked out the rehabilitation programme with the applicant.  The reports were prepared by her in relation to him.  She was asked did she see the applicant on 1 February and she agreed she did and there are other people present.  She explained what was happening and asked if he wanted to go on rehabilitation and he agreed, I accept that that was the case.  She had seen him previously in her working capacity when she did the Section 40 assessment, and he made it perfectly clear to her that he wanted to remain at work and she provided a service which would help him stay at work. 

Miss Robinson knew that the applicant had been on restricted duties of up to 10 kilograms, but she cannot remember if he directly mentioned 10 kilograms.  She was then asked about the Section 40 assessment and some evidence was given about the applicant re-aggravating his back.  He hurt his back while on long service leave and there was a medical certification.  Then she was cross-examined as to the two medical certificates of 31 January 1994 and particularly the second one.  She said that she never showed that to the applicant.

Miss Robinson gave evidence to the effect that her object was to rehabilitate him so he could remain at work, so long as he wished and she said there was a potential for him to remain at work.  This had been discussed at the Section 40 proceedings.  She assumed at the end of the rehabilitation programme he would be fit for full duties as an instrument maker or repairer or for light duties as an instrument maker or repairer.  She was then shown exhibit 7 which states that the applicant was fit for an instrument make and repairer this was something for which the applicant had not been trained.

In the circumstances and having regard to what fell from Mr Fuller later on, I am satisfied that there were no positions available for instrument makers and repairers at the SRA and in the circumstances because of, for the applicant's age, his difficulty with English and the fact that it would take five years to complete such a course, it would seem highly unlikely that he would ever undertake such an enterprise.

Other evidence fell regarding the applicant's pre injury duties and that he was sent to the rehabilitation centre in order to ascertain what duties he was capable of performing, that is, the range of duties he could carry out given his disability.  Further interrogation ranged as to what occurred at the various stages of the rehabilitation programme.

On 31 May Ms Robinson recalled receiving a phone call from the applicant asking that if he went to physiotherapy would he be paid.  She had no recall as to whether or not she contacted Dr Costa about physiotherapy and whether or not it was appropriate for the applicant to take leave from work to take this treatment.

She went on to say that she was requested to close the file by the State Rail Authority's Jan Sloan, and she discussed the progress of the programme with her.  She also reviewed the programme weekly with Jan Sloan and was told that they wanted to close the file, but she was not present at the meeting when this decision was made.  She sent a letter to the applicant that she would be closing his file.

I regarded Ms Robinson as a very careful, truthful witness.  I accept everything that she has said in relation to any matters.  Where there is any conflict with other evidence of other witnesses, I prefer that given by her,  that from 1 February, until she closed her file very late in May, that she had the applicant's interests at heart and she did everything that she possibly could to see if she could get him back to a situation where he could work as he had previously done prior to his injuries in the workplace.  She said, interestingly, that she had never inspected the applicant's pre-aggravation duties.  She accepted what she was told by either Leon Tonna or John Alam.

Now, the most important witness so far as the respondent was concerned was Mr Fuller.  He swore an affidavit and he also gave evidence.  The pertinent part of his evidence is to be found in paragraph 6 and 7 of his affidavit which was sworn on 9 February 1995.  In paragraph 6 he says:

"On 1 June 1994 a compensation review panel considered Mr Cladouhos case and made a recommendation.  Annexed hereto and marked is a copy of a memorandum dated 6 June 1994 from the manager of Compensation to me.  A review of the duties available indicated that Mr Cladouhos could not be productively employed or given full alternative meaningful work and accordingly it was decided he should be retired on medical grounds."

Then he goes on to say that on 8 June he met with Mr Cladouhos to inform him of the decision and he annexed a letter dated 15 June from the Personnel Manager, Workshop Division to the applicant in person.  He goes on to say that the applicant remained at work until 24 June, after which he was unable to continue and at this point in time on 25th of that month, Dr Costa issued the applicant with a medical certificate, after taking a history of lower back pain and left sciatica and opined that he was fit for no duties at all.

So, prior to the applicant finishing working out his notice, he was fit for doing no duties at all.  Whether or not that situation has changed, I do not know.  The applicant has given evidence that he could do his pre aggravation duties if I may say that, but he has not tried to do it and bearing in mind what doctor's opinions in the various medical reports, some doubt must be cast on that particular aspect.

All the witnesses for the respondent who were asked to give an assessment of the work quality of the applicant were very positive in this regard.  Mr Fuller said that he could have continued to have employed the applicant only if he had enough work.  In reviewing the five kilogram limit there was not much work this weight available.  He was asked whether he looked beyond he section.   He said that they tended to do heavier work.  He knew that there was no work within the applicant's limitation.  He says he did not look at the ten kilogram limitation.  He was asked whether there was work in other areas of the SRA and he said he did not know.

The maintenance depots were ruled out because they did not have bench work and one had to climb into carriages and locomotives and it  would be thought that in light of the applicant's disability that he would not be able to do this.  Overall, he said the review of positions available to the applicant did not really extend very much outside his own section.  In relation to other suggested sections, Mr Fuller said that those particular sections of the SRA had been privatised or they would have involved the heavier work so far as his knowledge was concerned.

Having viewed the facts it is now necessary to look at the law. The first question in my mind that has to be asked was the way in which the applicant's employment terminated was a breach of section 170DC of the Act. In my opinion the answer to the question is yes. Section 170DC of the Act is as follows:

"An employer must not terminate an employee's employment for reasons related to an employee's conduct or performance unless the employee has been given an opportunity to defend himself or herself against the allegations made or the employer would not reasonably have expected to give the employee that opportunity.

In Nicholson -v- Heaven and Earth Galleries Pty Limited (1994) 126 ALR 223, Wilcox CJ said of section 170DC of the Industrial Relations Act 1988 (the Act):

"The paragraph does not require any particular formalities but this does not mean that it is unimportant or capable of perfunctory satisfaction.  Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as natural justice or more recently procedural fairness.  The relevant principle is that a person should not exercise legal power over another to that person's disadvantage and for a reason personable to him or her without first affording the affected person an opportunity to present a case.  The principle is well-established in public administrative law.  It was accepted in the international labour law when article 7 was inserted in the termination of employment convention.  Section 170DC is directly modelled on article 7.  The principle is, I believe, well-understood in the community.  It represents part of what Australian's call a fair go.  In this context of section 170DC is not to be treated lightly.  The employee is to be given an opportunity to defend himself or herself against the allegations made.  That is the particular allegations of misconduct, poor performance that are putting the employee's job at risk.  When an employer is contemplating dismissing an employee for specific reasons it is not sufficient that the employer merely puts those reasons to the employee unless the employer also makes it clear that the employee's job is at risk."

The phrase, the allegations made in section 170DC must be read to mean the allegations made in respect of which the employee's employment may be terminated. This is because the obligation on the employer to put the allegations to the employee and give him or her an opportunity to respond is an obligation imposed on an employer only in the context of the possible termination of the employee's employment. This is what I understand the Chief Justice to have meant in Nicholson when he said:

"The employee is to be given an opportunity to defend himself or herself against the allegations made, that is, the particular allegation of misconduct or poor performance that are putting the employee's job at risk."

I am reinforced in this opinion by section 170CA(i) of the Act together with schedule 11 of the Act which is a recommendation 166 of the International Labour Organisation which is referred to in that section.  Section 170CA of the Act is as follows:

"The object of this division is to give effect or further effect to (a) the Termination of Employment Convention and (b) the Termination of Employment Recommendation 1982 which the general conference of the International Labour Organisation adopted on 22 June 1982 and is also known as recommendation 166 and a copy of the English text is set out in schedule 11.

The title of the recommendation is Recommendation Concerning Termination of Employment at the Initiative of the Employer.  Under the heading, The Standards of General Application, there is a sub-heading, procedure prior to or at the time of termination.  Paragraph eight under sub-heading is as follows:

"The employment of a worker should not be terminated for unsatisfactory performance unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed."

One of the objects of division three of part VIA of the Act is to give effect or give further effect to the recommendation and I must have regard to the wording of that recommendation in determining the meaning of section 170DC and the obligations imposed on employers as the result of the section. Of course, the Act does not in terms impose an obligation on employers to give employees a written warning in terms of paragraph eight of the recommendation. I accept that. But if it were the intention of Parliament to impose generally such a requirement then the Act must specifically say so but they must give a warning.

Nonetheless, in view of the fact that one of the objects of the act is to give effect of the recommendation and in view of the fact that the recommendation is incorporated into the Act in the sense that it is in a schedule to the Act, the absence of a written warning where that could appropriately and practically be given is a factor to be taken into account on the question of whether or not an employee has breached the provisions of section 170DC of the Act and indeed section 170DE. To put it another way, although I do not regard the recommendation as necessarily binding, I take into account it as providing significant guidance to the court on the questions of the proper procedures for the employer to follow.

Furthermore, in my opinion there are sound policy reasons why written warnings stating that the employee's job is at risk and setting out reasons why that is the case where this can be appropriately and practically given should be given.  It is in the interests of both parties that the potential for misunderstanding be minimised and a written warning has that effect.  This did not happen in this case.  Related to that, in my opinion, is this:  if an employee's work performance is not up to the required standard for whatever reason, then an employer should inform the employee as precisely as possible what the problems are and the best way to do that in my opinion is in writing.

If there are required standards to which an employee must perform then those standards should be set out in writing.  However, lest I be misunderstood, each case has to be examined on its own facts and if there were an absence of a written warning it is not necessarily determinative of the question and there would certainly be many circumstances in which the absence of a written warning would not simply mean that a termination of employment was in breach of the Act.  It is simply a factor to be taken in account in the way that I have already mentioned.

Instantly this case there was neither a written nor an oral warning and it is my view that there has been a breach of the Act. I can see no reason why the applicant could not have received a written warning to the effect that his job was in jeopardy and it just did not happen. For this reason, I find that there was a breach of Section 170DC of the Act.

The next question to be decided is, was the decision to terminate the applicant's employment in breach of Section 170DE of the Act.  I will not read the section because this has already been done.  In my opinion, putting aside for the moment  the question of whether the termination of the applicant was harsh, unjust or unreasonable in terms of section 170DE, the respondent has established in my mind that there was a valid reason for the termination of employment.  They were adverted to by Mr Kite and I accept what he says as forming a basis for the validity of the applicant's termination, that he was physically incapable of being an electrical fitter, and this was paramount.  But fairness must prevail, it is an indefeasible right.

Doctors Innes and Palma all say it is permanent and there was a consistency as to this view.  A disability support pension of which the applicant is now in receipt was tendered and that specifically pointed to the fact that in order to qualify for that pension, the applicant has to prove that he/she has a continuing inability to work and that a person's impairment is sufficient to prevent the person doing the person's usual work for which the person is apparently skilled.  The document tendered indicates that the applicant must have made some representation to that effect and I have to accept that on the face of it, it adds force and effect to Mr Kite's submission that the respondent had a valid reason for the termination of the applicant's employment.

The next question to be posed in my mind is, was the termination of the applicant's employment harsh, unjust or unreasonable within the terms of Section 170DE(2) of the Act? For the reasons I have set out above I have found that the termination of the applicant's employment was a breach of section 170DC. This was in part because the applicant had not been made aware by the respondent that his job was in jeopardy despite the respondent being critical and unsure of his performance.

For the same reason the termination of the applicant's employment was unjust as he was denied procedural fairness.  In Byrne and Frew -v- Australian Airlines Limited (1994)52 ILR 10 Gray J in considering the term:  harsh, unjust and unreasonable in an industrial award said at page 63:

"So far as the procedural aspects of a clause such as a clause 11A have been seen as confined to the need for an employer to make a proper investigation of the facts and to consult with the employee about those facts and their possible consequences in my view that analysis has been inadequate.  The use of the word unjust in the clause is intended to import requirements of natural justice or procedural fairness in the process of the termination of employment."

His Honour went on to say:

I am of the view that a clause such as clause 11A requires that an employer contemplating termination of the employment of an employee is obliged to afford procedural fairness to that employee.  Not to do so would be unjust."

I find as a fact that in this present case the employer contemplating the termination of the applicant's employment did not extend to him procedural fairness and I find that its conduct was unjust within the meaning of Section 170DE(2).  He did not consult with the applicant about the applicant's failure to perform as required and he did not consult with the applicant against possible consequences of his failure to perform that is to say, the possibility of his employment being terminated.  Secondly, and most strongly in my view, natural justice requires an employer to tell an employee that his job is in jeopardy.

Again for these reasons, the applicant was denied natural justice and the termination of the applicant's employment was unjust.  By not giving him some hint, or no more than a hint, or some indication that his employment was in jeopardy, what the respondent did so far as the applicant was concerned was to lull him into a false sense of security.  That is also unjust in my mind, as well as being harsh and unfair.

I have already dealt with the submission made by Mr Kite that there were things that happened or that occurred that should have warned the applicant the his placement was in danger, for example, the earlier termination.  I reiterate that I reject this submission.

The way it was done was simply this.  Quite apart from his disability and his age, the mere fact that he was terminated made it doubly hard for him to find, in my mind, alternative employment because of the circumstances of his dismissal.  This again I find is harsh.

The next question I wish to address is, should the applicant be reinstated?  In my opinion it would be impracticable to order the applicant to be reinstated.

In view of my finding that the termination of the applicant's employment was for a valid reason and lawful but for the procedural unfairness, reinstatement would be impractical in my mind.  I take into account what fell from learned counsel for the respondent on this point and I also take into account what was said by the various witnesses for the respondent, most particularly that which fell from Mr Fuller in relation to the availability of jobs at the SRA.

Then it comes to the point of what amount of compensation, if any, should be awarded to the applicant for the unlawful termination of his employment.  The amount of compensation to be awarded is affected by the fact that but for procedural fairness the respondent would have been entitled to terminate the applicant's employment.  In Nicholson -v- Heaven and Earth Gallery Pty Limited cited previously, Wilcox CJ canvassed various authorities relevant to the question of quantum of damages to be awarded for the breach of section 170DC at the Act. That is, where there has been a breach of the requirements of procedural fairness laid down by the Act but there was an underlying valid reason for the termination of the applicant's employment, his Honour said at page 246 of that report:

"They lead me conclude that in assessing compensation for breach of section 170DC it is appropriate to consider what would have been likely to occur if the breach had not occurred.  It should not be assumed the employee would have been dismissed anyway, such assumptions ignore the rationale of procedural fairness in everyday experience that decision makers often change their minds when presented with another side of the case.  It devalues Section 170DC to the point of redundancy.  On the other hand it would be unrealistic for a court automatically to assume that if the employer had complied with Section 170DC the employee's employment would have continued indefinitely.  The statement of Sheppard and Herry JJ in Bostic that the respondent had substantial security in his employment was a comment upon that case.  It is not to be a proposition of universal application - "

In Byrne and Frew -v- Australian Airlines Limited, Black CJ in considering the meaning of the phrase, harsh, unjust and unreasonable, in an Industrial Award, said at page 17:

It is plain the clause was intended to protect employees and to provide them with very much greater security of employment than they had previously had under Federal awards.  That purpose is one of substantial social and industrial significance because of the consequences of dismissal from employment may be devastating for the person dismissed and his or her family."

I approached this case in the light of what Wilcox CJ said in Nicholson and what Black CJ said Byrne and Frew.  There is evidence to the effect that the applicant had tried to find another position and has not been able to do so and this is a fact that I have to balance with those factors which were adverted to by Black CJ and Wilcox CJ in relation to this particular case.  It is apparent that the applicant is having considerable difficulty finding employment and I am of  the view that he will not be able to find it at his age and bearing the disability that he so bears.  The circumstances of his dismissal would not help.

It is not that I make a finding that the applicant will not find employment for a considerable time, I find as a fact that it is highly unlikely that the applicant will ever  become employed again.  Of course we all know that the maximum amount of compensation I can award is limited or constrained by Section 170EE(3) of the Act.  I will not read the section, but it provides that I can award compensation equivalent to six months pay to the applicant.

In making an award of compensation one is constrained as to the amount by the Parliament - Section 170EE.  Given the fact that the applicant will be unlikely to find employment in any field in the near future or at all, the maximum amount or a figure close to it would seem appropriate.  In my opinion, the maximum of six month remuneration founded by the Act is not intended to be top of the scale nor is it intended to be a starting point from which other figures such as the money earned by the applicant in alternate employment or the amount of money paid in lieu of notice, are to be deducted.  It is simply  the upper limit of the amount of compensation that can be awarded.

In the present case, if the constraints imposed by Section 170EE did not exist I would award a figure in excess of six month salary.

In the circumstances, I consider the sum of $13,401.00 is the appropriate amount to order by way of compensation.  The sum is to be paid by the respondent to the applicant within 21 days of the date of this judgment.

In all the circumstances I consider a sum of $13,404.00 is the appropriate amount to order by way of compensation.  The sum is to be paid by the respondent to the applicant within 21 days of the date of this judgment.

Upon termination, the applicant received a lump sum payment of superannuation.  This was considerably less than he would have received had he continued in employment with the respondent until age sixty five years.  In addition,  the applicant received some forty odd thousand dollars in settlement of this Worker's Compensation Claim.

Whilst this was not argued, I do not regard an award of compensation under the Industrial Relations Act 1988 as "double dipping". Different rights are involved. In this regard I take comfort from the decision of Evatt J in Building Workers Industrial Union of Australia -v- Master Builders Association (NSW) & Anor [1987] 20 IR 226.

I certify that this and the preceeding sixteen (16) pages are a true copy of the reasons for judgment of Judicial Registrar Locke.

Associate:      C Sternberg

Date:             12 June 1995