Collins and AMWU v Rexam Australia Pty Ltd
[1996] IRCA 511
•24 October 1996
DECISION NO:511/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - termination based on failure to comply with direction to work alternating shifts - whether direction lawful - whether valid reason for termination - whether termination for reasons prohibited under S170DF - compensation
Industrial Relations Act 1988 ss.170DB, DC, DE, EA, EDA, EE
CASES:
Johns v Gunns Limited (1995) 60 IR 258
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
State of Victoria v Commonwealth Australia (1996) 138 ALR 220
Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366
Kerr v Jaroma Pty Ltd (unreported) 7 October 1996, VI3306/95
Nettlefold v Kym Smoker Pty Ltd (unreported) 4 October 1996 TI-1334/95
Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693
Slifka v J W Sanders Pty Ltd (unreported) 19 December 1995, VI94/2741R, Decision 701/95
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199
Sargeant v Regent Press Pty Ltd (unreported) 15 February 1995
Jones v Armas Nominees Pty Ltd (unreported) 22 December 1994
COLLINS AND AMWU -v- REXAM AUSTRALIA PTY LTD
No. VI-5933 of 1995
Before: Ryan JR
Place: Melbourne
Date: 24 October 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-5933 of 1995
B E T W E E N :
ANDREW COLLINS & AMWU
Applicant
AND
REXAM AUSTRALIA PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 24 October 1996
THE COURT:
Declares that the termination of the employment of the Applicant by the Respondent contravened S170DE(1) of the Industrial Relations Act 1988.
Orders that the Respondent pay the Applicant compensation under S170EE(2) of the Act in the sum of $11,440 within 21 days.
Orders that any payment to the Australian Taxation Office within that period of 21 days in respect of and relating to the payment of the $11,440 compensation is pro tanto satisfaction of the order in 2 above.
Orders that the Respondent pay the Applicant compensation under S170EE(5) of the Act in the sum of $1,760.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-5933 of 1995
B E T W E E N :
ANDREW COLLINS & AMWU
Applicant
AND
REXAM AUSTRALIA PTY LTD
Respondent
Before: Ryan JR
Place: Melbourne
Date: 24 October 1996
REASONS FOR JUDGMENT
THE CLAIM
The Applicant is a diabetic and has had diabetes for 25 years. Until 1995 he required two insulin injections a day. He was employed by the Respondent after he advised a Mr David Tingy about the diabetes. His counsel asserts that the termination of his employment on 29 November 1995:
(a) breached S170DB being without adequate notice or payment in lieu
(b) was not for valid reason under S170DE(1)
(c)was a prohibited termination under S170DF(1)(f) in that the employer terminated the employment for a reason or reasons including physical or mental disability
Counsel for the Applicant concedes that reinstatement is impracticable and seeks the maximum compensation available under S170EE.
THE TREATMENT REGIME DURING THE EMPLOYMENT
The Applicant was employed on a 7:00 am to 3:30 pm shift and states that he was able to manage his treatment regime around these times. He states that he rises each day between 5:00 and 5:30 am, conducts blood sugar and urine tests, administers an injection and has been able to have his breakfast and commence work by 7:00 am. He also claims that the 3:30 pm finish fitted in with his evening regime which then and now requires blood sugar and urine tests about 4:30 pm, an injection about 5:00 pm, a meal about 5:30 pm, which the Applicant states he prepares for himself and his father. He then conducts further tests and has a longer lasting injection about 9:00 pm and supper about 9:30 pm.
Since 1995 the Applicant’s regime has required four tests and four injections with food taken four times a day about 30 minutes after the injection. The Applicant states that he was able to manage this regime with a 7:00 am to 3:30 pm shift but could not manage it with a 9:00 am to 5:30 pm shift and was not prepared to work 9:00 am to 5:30 pm until and unless a regime was designed by his doctor which was compatible with working such hours.
THE INTRODUCTION OF THE “BACK SHIFT”
In 1992 or 1993 the 9:00 am to 5:30 pm shift, called a back shift, was introduced. The Applicant was asked to work this shift, declined to do so and claims that, at the request of a Mr Sam Jackson, he obtained a letter from a Dr Heenetigala. He claims that he gave the letter to Mr Jackson and that Mr Jackson put the letter in a filing cabinet and that he, the Applicant, continued to work 7:00 am to 3:30 pm shift. The Court notes that once the back shift was introduced there were in fact three shifts being:
the day shift 7:00 am to 3:30 pm
the back shift 9:00 am to 5:30 pm
an afternoon or evening shift 3:15 pm to 11:15 pm
The afternoon shift is not really relevant to these proceedings other than to note that a third shift is worked.
The Applicant claims that on three occasions between 1993 and 1995 Mr Jackson held meetings involving employees who were complaining about the fact that the Applicant was not required to work the back shift. The general practice then and now seems to be that most employees (other than those on afternoon shift and storeman in the inwards goods receiving store) were required to alternate week in and week out from the 7:00 am to 3:30 pm day shift to the 9:00 am to 5:30 pm back shift. There are two other exceptions to the Applicant and these exceptions will be referred to later. The Applicant was exempted from back shift and continued to work the 7:00 am to 3:30 pm shift.
FEBRUARY 1994 CLAIM OF DISCRIMINATION
On 25 February 1994 the Applicant signed a certificate to the effect that he had read certain Safety Regulations set out in a booklet or manual. (Exhibit A1). However, the Applicant qualified the certificate with detailed comments. Some of these comments are relevant to these proceedings and read as follows:
“I, Andrew Collins, will sign this form only agreeing with the information in this Safety Manual. I am not signing this form for any health and safety changes made by Bowater Reding (the Respondent company is a subsidiary of Bowater Reding) after the date mentioned below (25-2-94). As I am a diabetic I will only be treated by my specialist doctor not the company doctor. I also request that Bowater Reding stop discriminating against my diabetes. The PKIU and the Discrimination Board have been notified.
I have to alternate safety boots and comfortable footwear as prescribed by medical practitioner (Sam Jackson has official doctor’s letter).
Question 3.25 discriminates against me as I am a diabetic and insulin is a drug.”
The Applicant also refers to “what he calls question 3.26 and question 3.28”. The Court assumes that his written comments are comments on paragraphs 3.26 and 3.28 of what are described in the certificate as Bowater Reding Safety Regulations. The regulations were not tendered as an exhibit. In any event the Applicant’s comments on these aspects of the regulations do not appear to be relevant to this matter.
In answer to a question from the Court, the Applicant claimed that the particular safety boots he wore gave him blisters and calluses and that he obtained separate advice from Dr Heenetigala about footwear and also gave that advice to Mr Jackson. The Applicant states that he occasionally wore safety footwear but mostly wore sneakers or runners. Jamie McGhee, Warehouse and Distribution Supervisor, the Applicant’s immediate supervisor, gave evidence that safety footwear was voluntary and if employees chose to purchase it the Respondent had a practice of reimbursing 50% of the purchase price. The Applicant did not give evidence of safety footwear purchased by him or of any reimbursement by the Respondent.
Exhibit A1 may be of some assistance in assessing the credibility of the Applicant and/or Mr Jackson. It is an exhibit tendered by the Applicant presumably to demonstrate that the Applicant openly and in writing, as early as 25 February 1994:
indicated an intention to only be treated (or indeed assessed) by his own specialist doctor and not by a doctor on behalf of the Respondent
alleged discrimination “against my diabetes”
DIRECTIONS TO APPLICANT TO WORK BACK SHIFT OCTOBER 1995
The Applicant claims that on or about 12 October 1995 he returned from six days WorkCover leave and that an employee who was a trainee under his supervision, John Kren, advised him that he (the Applicant) was on a back shift roster pinned up on a noticeboard in the staff tea room. The Applicant produced a copy of a roster for back shift (Exhibit A2). The roster indicated that the Applicant was rostered on the back shifts, i.e. 9:00 am to 5:30 pm, in the weeks commencing 30 October, 13 November, 27 November, 11 December and 25 December. (The reference to 25 December is a mistake resulting from automatically extending the shifts into the Christmas vacation). The roster also stated that one Trevor Cooney was to work full-time in the back shift and that John Kren was to work full-time on the day shift (for training purposes).
On or about 12 October the Applicant admits that he received a letter dated 11 October. It is Exhibit A4. It reads as follows:
“In view of our current work load you are required to work the same shift arrangement as with all other employees in the Despatch as follows:
COMMENCEMENT 30TH OCTOBER 1995
START: 9:00 AM
FINISH: 5:30 PM
COMMENCEMENT 6TH NOVEMBER 1995
START: 7:00 AM
FINISH 3:30 PM
NOTE: The 9:00 am and 7:00 am start times are rotated weekly.
In recognition of your health condition, time will be made available, with pay, for a meal break each afternoon of the 9:00 am start shift.”
On 23 November Mr Jackson wrote again to the Applicant. The Applicant admits he received this letter about 24 November.
The Court pauses to note that the Applicant tendered eleven letters from Mr Jackson dated between 11 October and 29 November. Only the last of these letters is addressed to the Applicant at his residential address. The others appear to have been delivered to the Applicant, some directly and others by a shop steward, Mr O’Brien. The Applicant concedes he received all of these letters and memos and thinks he received them a day or so after the date which appears in each case.
The letter of 23 October (Exhibit A5) reads as follows:
“Referring to our discussions of today’s date regarding the attached letter advising change of working hours commencing Monday 30th October, 1995.
Concerning your advice that the proposed meal break should be of 1 hour and 30 minutes duration each day. In this regard we have contacted the Diabetes Institute (International) and it is in their opinion that a 30 minute break would be sufficient to partake of food, rest and administer any tests necessary.
Following this advice we will provide a 30 minute break, with pay. Any extension to this period will require medical support in writing.”
On 25 October Mr Jackson signed a memorandum to the Applicant with copies to J McGhee and M O’Brien. This is Exhibit A6. It is headed Change of Shift and refers to written advice of 23 October informing the Applicant of change to start/finish times. The Court notes again that Exhibit A5 is dated 23 October but does not contain advice of changes to start/finish times. It is possible that another letter dated 23 October, allegedly attached to Exhibit A6, did refer to start/finish times but no documentary evidence was produced to support that possibility.
The memorandum of 25 October (Exhibit A6) also refers to the Applicant’s view, stated apparently on a number of occasions, that he needed a meal break of one and a half hours. Indeed, Mr Jackson refers to the one and a half meal break on no less than 7 occasions in Exhibit A6.
On 30 October, Mr Jackson wrote again and his advice to the Applicant is contained in Exhibit A7 and is as follows:
“We confirm your verbal advice of today’s date to Jamie McGhee that you wish to terminate your employment with Rexam Paper Products. You have advised you wish to give six (6) weeks notice which will make your last working day the 8th December 1995.
You did not indicate to Jamie when you would be returning to work. In order for us to find a replacement for your position, we need to know if you will be working this period of notice.
Would you please advise this office of your intentions.”
FURTHER WRITTEN DIRECTIONS TO THE APPLICANT NOVEMBER 1995
On 2 November Mr Jackson wrote again. The letter is Exhibit A8. Some of this letter may be of little or no relevance, given the way in which the case was conducted, but I include the letter in its entirety:
“A meeting was scheduled for 3:00 pm Monday 30th October 1995, for you to respond to our request and provide a Doctors certificate supporting your advice that a 1 hour break each day, is necessary for you to partake of food and conduct any tests necessary. You did not attend this meeting.
On the 30th October, you attended work at 6:30 am and gave Jamie McGhee a Doctors certificate for absenteeism the previous week, and also advised him you were giving six (6) weeks notice to terminate your position, and then you left Rexam Paper Products. You were absent for the remainder of the day and also Tuesday 31st October.
You returned to work on Wednesday 1st November, I asked you to confirm your termination date, to which you replied I have not resigned. We do have a witness that you made this statement on Monday to Jamie McGhee.
I requested a Doctors certificate on Wednesday for your absenteeism on the Monday and Tuesday, and you said you had to go back to the Doctor. I again asked you on Thursday, and you said you had not been to the Doctor yet. We will require a Doctors certificate for the period of absenteeism, 30th and 31st, November.
We have rescheduled a meeting for 12:00 pm Friday 3rd November 1995, for you to respond to our letter of the 25th October 1995.”
On 3 November (Exhibit A9) Mr Jackson wrote to the Applicant as follows:
“We have been advised by Mick O’Brien that you have been instructed by the union to produce a medical certificate substantiating your health condition requires you to take an additional break, each day, of 1½ hours to partake of food and conduct any tests necessary.
We reconfirm your working hours are as follows:
Week 6 - 10/11 7:00 am - 3:30 pm
Week 13 - 17/11 9:00 am - 5:30 pm
SHIFTS ARE ROTATING FROM THIS PERIOD
This will give you the opportunity to visit your specialist and obtain a medical certificate prior to the commencement of the 9:00 am shift. We will re-assess your situation when a certificate is presented.”
On 8 November (Exhibit A10) Mr Jackson wrote to the Applicant as follows:
“Friday 3/11 you responded to my letter of the 2/11 by stating you will be unable to commence working the 9:00 am shift on the 13th November, as it usually takes six (6) weeks to obtain an appointment with your specialist, and you will be unable to produce a medical certificate until then.
Previously, you have stated your solicitor has a copy of the certificate stating you require a 1½ hour break daily. It should not be difficult for you to obtain a copy. Additionally, as your medical condition is an existing one, you should not require an appointment with your specialist, he can confirm this in writing in response to a telephone call.
We initially advised you on the 11th October 1995, that you would be required to work the 9:00 am shift. We believe we have been very patient, and that you have had sufficient time to produce a medical certificate.
We advise you that as of Monday 13th November 1995, you will be required to work the 9:00 am to 5:30 pm shift.
The pay office will be advised not to make payment for any hours worked other than 9:00 am to 5:30 pm.
We will re-assess your situation when a certificate is presented.”
The Applicant appears to have responded the next day by letter dated 9 November. The letter reads as follows:
“Responding to your letter dated 8th November 1995 which I received from my supervisor Jamie McGhee on the 9th November 1995 at 8:15 am.
The letter, I previously stated my solicitor has, is not concurrent because I have a different specialist now than the one that wrote the letter approx 4 years ago, which was given personally to Sam Jackson (Distribution Manager). Because of this my new specialist has to examine me for this situation as it is against the law to write a medical certificate without first examining the patient, as your letter states (8/11/95) I have to start 9 am to 5:30 pm as from 13/11/95.
These hours I cannot work because of my diabetes. I have an appointment with my specialist on the 1/2/96. I am unable to get an earlier appointment because he is fully booked out until then. If a cancellation happens they will contact me.
As your previous letter dated 3/11/95 states I am on normal working hours until this dispute is over. This dispute will be over on the 2/2/96 the day after my specialist appointment. Sorry for any inconveniences this may cause your company.
Also in a meeting date 28/10/95? With Sam Jackson, Jamie McGhee, (Mick O’Brien/Union Del) & Myself, Sam Jackson said he rang the Diabetic Foundation and they said they could see no reason for more than ½ hour break to attend to my diabetes. I have asked Sam Jackson for a letter from the Diabetic Foundation confirming this three times. I will give Sam Jackson the letter from my specialist the day after my appointment in exchange for a letter I have requested from Sam Jackson from the Diabetic Foundation stating Sam & Diabetic Foundations telephone call. Also in this meeting Sam Jackson said they need me on this shift because the company is changing. This shift has been in operation for 4 years (approx). Many companies change their operations from time to time but unfortunately my diabetic situation hasn’t changed and can’t change.
I have not worked the backshift before because of my diabetes. On the 8/11/95 I lodged a complaint with the anti discrimination board concerning this matter and other matters that have happened over the past 4-5 years (approx).”
On 14 November Mr Jackson replied (Exhibit A12) this letter included the following statement:
“We believe it is unreasonable to have to wait until early February to have this issue resolved. We have contacted Graeme Wilce from the Diabetes Institute of Victoria and he has suggested you contact him on telephone number 9654 8777 to discuss your medical condition and requirements and he will advise us in this regard.
Would you ring Graeme Wilce by the 17th November and advise us of the outcome. We would be happy to accommodate Graeme should he wish to inspect your workplace.
We would appreciate your cooperation in this matter.”
On 15 November (Exhibit A13) the Applicant replied in a letter which included the following:
“I will not be telephoning Graham Wilce...he is not my specialist and does not know my diabetic history...when the Bowater Reding Safety Manual was read and signed by all employees, I put in a clause that I would be treated by my specialist doctor or my personal doctor only....you didn’t dispute this clause in the safety manual approximately two years ago I see no reason to dispute that clause now. You will receive the letter from my specialist on 3/2/96 in exchange for the letter from the Diabetic Institute...”
On 16 November (Exhibit A14) Mr Jackson wrote again. The letter is somewhat repetitive but it is necessary to include the contents.
“Referring to your response to my letter of the 14/11 stating you decline our invitation to contact Graeme Wilce of the Diabetes Institute of Victoria, and his offer to discuss your medical condition with you and then advise us as to your requirements regarding any additional time necessary to partake of food and conduct tests.
You have gone out of your way to be disruptive and continue to insist you must have a 1½ hour break daily, in addition to your normal lunch period. You claim your specialist wrote a letter stating this requirement, but you have not produced this letter to date.
You have also stated your solicitor has a copy of this letter, and you have threatened to produce this letter at a discrimination hearing. You have had the opportunity to produce a copy of this letter but have not done so.
You have then advised us this letter is now obsolete as you have a new specialist and he has not had the opportunity to examine you. You have made an appointment for the 1st February 1996, and until then are unable to produce medical evidence. However, in your letter of the 15/11 you refuse to contact Graeme Wilce because he does not know your diabetic history.
You have claimed we are discriminating against your medical condition.
We have sought independent advice from the Diabetes Institute and they believe we are being fair and reasonable.
We have offered a paid ½ hour break in addition to your normal lunch break in an effort to accommodate your needs.
We require you to work the 9:00 am shift, on a rotation basis, as with your fellow workers, due to our business needs. Our telephones are open to 5:00 pm each day, and we are required to process customer orders considered necessary. It is common practice for us to process between 20 to 40 orders after 3:30 pm.
As previously directed; you will be required to work the following hours:
WEEK 20 - 24/11 7:00 A.M. - 3:30 P.M. MON - THURS
7:00 A.M. - 12:30 P.M. FRIDAY
WEEK 27 - 1/12 9:00 A.M. - 5:30 P.M. MON - THURS
11:30 A.M. - 5:00 P.M. FRIDAY
COMMENCEMENT 6TH NOVEMBER 1995
START: 7:00 AM
FINISH 3:30 PM”
Mr Jackson followed up with another letter 12 days later on 28 November (Exhibit A15):
“On the 16th November 1995 we gave you a letter restating your working hours and that you were to commence working the 9:00 am shift as of Monday 27th November.
You were absent on this day without advising the company or producing any medical evidence.
You have refused this instruction by starting work at 7:00 am on Tuesday 28/11/95.
You are directed to commence work at 9:00 am. On Wednesday 29th November 1995.
Failure to comply with this directive will result in your termination with this company.”
THE TERMINATION OF EMPLOYMENT
On 29 November Mr Jackson spoke to the Applicant at the workplace at 7 am and terminated the employment. A letter dated 29 November (Exhibit A16) reads as follows:
“Re: TERMINATION OF EMPLOYMENT
Dear Andrew,
Following our discussions with you on the morning of Wednesday 29th November at 7:00 a.m., I write to confirm that your employment with this organisation has ceased effective from that date. At the last meeting 28th November 1995, the reasons for the termination of your employment were explained to you in detail and confirmed in writing.
Your termination pay has been prepared and you will note from the pay advice tendered to you, that your payment includes all monies owed. Should you have any further queries in regard to these matters, contact with K Beckman would be appropriate in the first instance.
Yours faithfully
SAM JACKSON
DISTRIBUTION MANAGER”
THE MEDICAL EVIDENCE
Dr N S Heenetigala gave evidence which in essence confirmed a written statement he made on 18 January 1996 (Exhibit A17). His evidence was that:
he had treated the Applicant from 1991 but the Applicant was no longer his patient
he had issued a written statement on 18 January 1996 certifying that approximately three years earlier he provided the Applicant with a letter “regarding his inability to work the 9 am to 5:30 pm shift at work in view of his treatment for Diabetes Mellitus”
when the Applicant had relocated he (Dr Heenetigala) had transferred the medical notes to a clinic in Upper Beaconsfield
he did not have a copy of the “first letter” but he “remembers very well” that he gave it to the Applicant.
Dr Nik Chosich gave evidence which confirmed a statement he had signed on 21 June 1996 (Exhibit A18) and provided for the Applicant’s solicitors. The statement reads as follows:
“I am writing in regard to Andrew Collins, who I have seen since February 1995 for treatment of his diabetes mellitus. The treatment involves four injections of insulin per day, regular blood glucose monitoring and regular meal times. Diabetes mellitus can be associated with a range of long term health problems including eye damage, kidney damage, heart disease and nerve damage. The risk of these chronic complications is increased by poor blood glucose control. A regular work routine would facilitate improved blood glucose control.
With regard to this issue, I refer to the letter dated the 17th of April, 1996 to Rexam Paper Products which deals specifically with the different shift times. Clearly the best option from the viewpoint of his diabetes would be to have the same start and finish time each day with regular meal breaks. The next best option would be shifts that vary by only a few hours. The insulin regimen allows for some flexibility. The most difficult option would be rotating shifts involving day, afternoon and night shifts.”
MR JACKSON’S EVIDENCE
Mr Jackson gave evidence that was generally but not entirely consistent with the statements he made in his letters to the Applicant. The following are extracts from his evidence. The extracts confirm, clarify and add to the statements made in the letters to the Applicant. The extracts are not direct quotations from the transcript. The Court has not called for transcript. The extracts are notes of the evidence.
“I am responsible for rosters in conjunction with Jamie (McGhee).
Four years ago I spoke to (the Applicant) in relation to shifts. I recall (the Applicant) saying that he could not work the later shift because of his medical condition.
We had weekly staff meetings. I raised this matter with the other storeman. I said that (the Applicant) could not work the split shift and could present a doctor’s certificate. I never saw that certificate.
I directed (the Applicant) to commence on the swing shift. I issued a letter to Andrew (the Applicant) advising him of his new working hours. The letter outlined the new working hours and when they were to commence. I issued the letter about 11 or 12 October. Exhibit A4 is the letter. I made alterations because (the Applicant) was absent for a number of days following 11 October. I made the alterations when (the Applicant) returned about a week later. I personally handed the letter to (the Applicant) when he returned to work. I stated that I was changing his hours in view of the workload.
He said I can’t work those hours.
I asked why?
He said I gave you a letter years ago.
We have no letter on file stating that he could not work those hours. I think he left that at that.
At a later meeting about 23 or 24 October when Jamie McGhee and Mick O’Brien were present I said will you work the backshift? He said no you have a letter.
I have no recollection of the letter.
He said you’ll get a letter from my solicitor at the Industrial Relations Court hearing.
He (the Applicant) kept saying that it was discrimination.
I said, you have said that about four times. I will document this and you will get a copy and so will the union.
I wrote to (the Applicant) and gave a copy to Mr McPhee and to Mr O’Brien. The letter is Exhibit A6. I confirmed (in the letter) why I wanted to make the changes and I outlined his response. I believe I said that I had spoken to the Diabetes Institute and I told him that, what I was offering, they (the Institute) thought was fair and reasonable and we were quite happy to give him an additional 30 minutes with pay during the backshift.
He would not do it. He said, you have the letter. I said, give us a copy. He said, you have it. You will hear from my solicitor.
He said that he had given us a letter and that he was not about to give us another one. He said this on the 23 October 1995.
He angrily said that he would not attend the Diabetes Institute and that he had his own specialist.
Mick O’Brien told us that the union had instructed (the Applicant) to produce the letter. After 3 November we waited for (the Applicant) to produce a certificate or commence work at 9:00 am on 13 November. At some date (the Applicant) said that he had made an appointment with a new specialist early in February 1996. I think he said that some days after 3 November, reasonably early in November. (The Court notes that this is consistent with the Applicant’s response to Mr Jackson’s letter of 8 November. The letter of 8 November is Exhibit A10. The Applicant’s response is Exhibit A11.)
When I spoke to the Diabetes Institute I spoke first to Ms Gerry Cross. I spoke to Graham Wilce on the second occasion. I told (the Applicant) about this in one of my letters and we requested (the Applicant) to get an earlier certificate.
I was at work at 7:00 am on 29 November. Numerous people were there. I was standing with Jamie McGhee as one of the trucks was docking. I said:
‘Andrew, you were instructed to start at 9:00 am not 7:00 am.
He said, I am not starting at 9:00 am.
I said, as I instructed you I am terminating your services as of now’
The following is an extract of certain of the evidence given by Mr Jackson in cross-examination.
“Yes, I summarily dismissed (the Applicant) on 29 November.
In October I asked the Applicant to go on the back shift.
A number of times over a four year period I saw the Applicant’s inject. I told the Diabetes Institute that he injected twice a day and had to do tests and that we were proposing alternate shifts. Ms Gerry Cross was on holidays and therefore (on the second occasion) I spoke to Graham Wilce. I told them (the Institute) that (the Applicant) was permanently on 7:00 am to 3:30 pm. I told (the Institute) of the proposal for a swing shift. I did not say to Ms Cross that the Applicant was requesting a 1½ hour break. I put it to her that we were proposing a 30 minute break. She said she could not see anything wrong with that. She did not refer to a treating specialist.
Then I spoke to Mr Wilce because the Applicant was insisting on 1½ hours break. I gave him the same description about the two injections and the rotating shifts. I told Mr Wilce that (the Applicant) wanted 1½ hours but we were offering 30 minutes. Mr Wilce said that that would seem quite in order. I said that (the Applicant) was adamant. Mr Wilce said that he couldn’t see why and that he would give me his telephone number and he would be prepared to talk to (the Applicant) or (the Applicant) could come to the Institute or he could go to the workplace. He did not refer to a specialist and he did not indicate that his advice or views were subject to consideration by a specialist. I think I said that the Applicant could take his 30 minutes at any time.”
THE RESPONDENT’S POSITION
The Respondent claims that:
the employer was entitled to change the Applicant’s hours of work with one week’s notice under Clause 19(1) of the Graphic Arts Award 1977
the Applicant was put on notice on a number of occasions that he was required to carry out a lawful direction to work the backshift
the employer was entitled to summarily dismiss the Applicant for wilful disobedience
there was a valid reason for the termination of the Applicant’s employment being the misconduct involved in the refusal of the Applicant to carry out the lawful direction to work the back shift
Mr Hargrave for the Respondent asserted that the validity of the termination and the direction to work the back shift was “predicated on the unreasonableness of the Applicant in not producing substantiating medical evidence” that it was inappropriate or unsafe for him to work the back shift.
Mr Hargrave also asserted that the termination “did not result” for any of the reasons prohibited. by S170DF(1). However, the Respondent cannot by mere assertion discharge the onus of proof imposed on an employer where an Applicant alleges contravention of S170DF(1).
TERMINATION FOR PROHIBITED REASON - SECTION 170DF(1)
The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason.
Once a contravention of S170DF(1) is alleged, S170EDA(2) casts on the Respondent employer an onus of disproving facts, namely, that the termination was not in any way activated by a reason or reasons prescribed in S170DF(1)(a) to (g).
In this case the Applicant alleges that the termination of employment was for a reason or reasons which included the Applicant’s condition as a diabetic and was a termination in whole or in part for a reason of physical or mental disability and therefore prohibited under S170DF(1)(f). The mere proof of a reason for dismissal other than the reason alleged does not necessarily negate the reason alleged. A mere denial of the reason alleged may not be sufficient to satisfy the onus cast upon the Respondent. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as (in this case) any denial of the alleged reason of physical or mental disability: see Johns v Gunns Limited (1995) 60 IR 258 at 267 to 269.
The Respondent has to establish a negative namely that the reason for dismissal did not include the physical or mental disability of the Applicant. The onus is to be satisfied on the civil basis of balance of probabilities.
Clearly, at the time of the termination, and by letter the day before the termination, the Respondent stated that the termination was a result of the Applicant failing to comply with a direction to work the back shift. I have concluded that Mr Jackson, as the agent of the Respondent, was quite genuine in his belief that the termination was justified by the failure of the Applicant to comply with what was considered a lawful direction to the Applicant to work the back shift. I have also concluded that Mr Jackson was fortified in his belief by what he considered was the unreasonable attitude of the Applicant in refusing either to get quick medical evidence in support of the claim that alternative day and back shifts were medically inappropriate or in accepting the offer of an additional half hour paid leave while on the back shift.
In my view, in all the facts and circumstances of the case, the Respondent has discharged the onus of proving on the civil basis of balance of probabilities that the termination was not based in whole or in part on the Applicant’s physical or mental disability. Indeed, the Respondent took the opposite position which was that, in the absence of medical evidence to the contrary, the Applicant was physically or mentally capable of working the back shift with an extra 30 minute break.
VALID REASON FOR TERMINATION
However, a similar onus is imposed on the Respondent to establish a valid reason for the termination. See Johns 266 to 269.
The repeated refusal of an employee to comply with a lawful direction would clearly constitute a valid reason for termination under S170DE(1). The question is was a direction to work the back shift a lawful direction in the circumstances.
The circumstances are that:
the Applicant had revealed his diabetes to the employer prior to employment
the employment was offered and accepted despite the diabetes and the employer is to be commended for that
the Applicant had refused to work the back shift some years earlier and his reasons for refusing were at that time accepted by the Respondent
the Applicant had advised the Respondent in writing that he would only accept assessments of his medical condition from his own medical advisers
the Applicant had alleged discrimination against him as an employee because of his diabetes and had made that allegation in writing as early as 25 February 1994
the Applicant had on several occasions declined to accept the general, unspecified and unconfirmed secondhand reports that it would be appropriate for him to work the back shift with an additional 30 minute break and had confirmed that position in writing
the Applicant had indicated on several occasions that he had previously provided written advice from his doctor about the undesirable effect of working alternate and differing hours
a medical practitioner gave evidence that he had provided such advice
another medical practitioner gave evidence that alternating shifts were not helpful to the Applicant in managing his condition
I refer to the analysis of Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; State of Victoria v Commonwealth Australia (1996) 138 ALR 220 and Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366 by Marshall J in Kerr v Jaroma Pty Ltd (as yet unreported) 7 October 1996, VI3306/95 and to the conclusion that there must be a reason for a termination of employment which, on independent objective analysis, is capable of being proved by the employer to be valid.
I refer also to the analysis of S170DE(1), again including reference to Selvachandran, State of Victoria v Commonwealth and Kenefick by Lee J in Nettlefold v Kym Smoker Pty Ltd (unreported) 4 October 1996 TI-1334/95 where he describes as an “arguable construction” that valid reason within the terms of S170DE(1) imposes “a requirement that in all the circumstances a termination of employment at the initiative of the employer not be unjust or unfair”.
Lee J refers to Lord Denning in Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 stating that it is an implied term of an employment contract that an employer be “good and considerate” to its employee. Lee J also states in Nettlefold at 6:
“By giving effect to the Convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee, and of the community not to have the asset represented by the capacity of employees who provide such labour, whether skilled or unskilled, depreciated by incompetence or capricious management of labour by an employer.”
In my view, the position taken by Mr Jackson, although taken in good faith, was so unreasonable in the circumstances that “on independent objective analysis” it could not be “capable of being proved by the employer to be valid”.
Certainly, the position taken by Mr Jackson could not be described as “good and considerate” to the Applicant and could be accurately described as “unjust and unfair”. In my view, it was unreasonable and unfair and inconsiderate to expect the Applicant to:
obtain an opinion at short notice from his treating medical practitioner, Dr Chosich, prior to termination on 29 November 1995
obtain an opinion at short notice from Dr Chosich prior to termination on 29 November 1995 when the Applicant had asserted time and again that the opinion from Dr Heenetigala had been provided to Mr Jackson
obtain an opinion at short notice from Dr Chosich prior to termination on 29 November 1995 when the Applicant had stated in writing that a further opinion from Dr Chosich would be obtained on 2 February 1996.
It was also unreasonable and unfair and inconsiderate to expect the Applicant to accept the general, unspecified and unconfirmed secondhand report from the Diabetes Institute when the Applicant had asked on several occasions for confirmation of such opinions in writing and had stated time and again that he would only be treated and assessed by his own doctor. The Court also notes that Mr Jackson incorrectly told the Institute representatives that the Applicant was on a regime of two injections a day when the regime was four daily injections. The Court further notes that the Institute representatives were not told that the Applicant was seeking an additional break of 1½ hours during the back shift.
In the circumstances of this case I do not accept that the failure to comply with the direction to work the back shift amounted to a refusal to comply with a lawful direction and was thereby a valid reason for termination. I do not accept that the direction to work the back shift at the time the direction was given and in the manner given and under the conditions applying was a lawful direction and I do not accept that the Applicant’s failure to comply with the direction constituted a valid reason for termination under S170DE(1).
In my view the termination of the Applicant was not defensible or justifiable on any objective analysis of the facts.
THE REAL REASON OR REASONS FOR THE TERMINATION
The Respondent has not satisfactorily explained why the Applicant was directed to work the back shift in October 1995 when he had been exempted from that requirement since the introduction of the shift in 1992 or 1993.
Counsel for the Applicant has suggested that one motivating factor may have been the employer’s dissatisfaction with the Applicant following an absence from work on WorkCover leave. The Applicant has not formally alleged that the termination was for a reason or reasons which included temporary absence from work because of illness or injury. There is no onus on the Respondent to prove that the termination was not for a reason or reasons which included absence from work because of illness or injury because the Applicant has not made such an allegation.
It seems more likely that the Applicant was directed to work the back shift because, to use Mr Jackson’s words, the Applicant “had another job on the go” and because other workers were dissatisfied that the Applicant did not work the less popular back shift. It is clear from the evidence that these workers continued to apply pressure to the Respondent and especially to Mr Jackson. The pressure seems to have been designed to roster the Applicant for “his share” of the back shift and the evidence of Mr Jackson, in response to questions from the Court, suggests that this may have been a motivating factor.
Mr Jackson was recalled and gave further evidence on the last day of the trial. He was cross-examined about a view he expressed that the Applicant was undertaking other work for himself and was undertaking that work outside his hours of work with the Respondent and possibly making arrangements about such work during his working hours with the Respondent.
Mr Jackson’s evidence on this point included the following:
“The Applicant had another job on the go. It was common knowledge. We found out about it. He was contacting drivers. They were approached to collect pallets on his behalf. Those drivers lost their jobs.
I questioned Mr Collins about it. I said if you can go into another job you can stay back and work the other shift.”
The Court has already quoted Northrop J in Johns at 267 to the effect that:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason.”
While evidence was elicited in the hearing that suggests that the direction to the Applicant to work the back shift was motivated in part by the dissatisfaction of other workers and in part because the Respondent, and particularly Mr Jackson, were unhappy with the Applicant for using other employees to carry out private work on his behalf, neither of those reasons was relied on by the Respondent as a ground for directing the Applicant to work the back shift or as a reason for termination. Even if such grounds had been stated to the Applicant and were relied upon to justify the direction to work the back shift, such reasons and such reliance could not have converted an unfair, inconsiderate and unreasonable direction into a lawful direction such as might found and ground a termination for valid reason.
On the other hand the Respondent may have been able to readily establish a valid reason for termination if there were reasonable grounds for the view that the Applicant was working on his own behalf and using other employees of the Respondent for that purpose. However, that view, be it correct or incorrect, could not justify the termination of the Applicant unless there were reasonable grounds for holding such view and unless those grounds were communicated to the Applicant and he was given an opportunity to respond. The evidence of Mr Jackson suggests such a view was communicated to the Applicant but not as a reason for the termination of his employment but as a reason for directing him to work the back shift. In such circumstances the allegation against the Applicant was not a valid reason for termination in terms of S170DE(1) and did not convert the unreasonable direction to work the back shift into a lawful direction.
REMEDY
Having concluded that the Respondent has not discharged the onus under S170EDA to establish a valid reason for the termination of the Applicant it is necessary to consider remedy for the breach of S170DE(1).
While the Applicant originally sought reinstatement his Counsel submitted that reinstatement was not pursued, was not wanted and was not practicable. The Respondent certainly did not suggest reinstatement was practicable. The Court agrees that in the circumstances of this case reinstatement is not practicable.
S170EE(2) provides that the Court may, if considered appropriate in all the circumstances of a contravention of a provision of Division 3 of Part VIA of the Act make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.
In Slifka v J W Sanders Pty Ltd (unreported) 19 December 1995, VI94/2741R, Decision 701/95 North J held at 39 that:
“Once an entitlement to compensation is established and the loss is economic and can be broadly calculated by reference to defined categories of loss, the appropriate compensation will be the economic loss suffered by the Applicant as a result of the contravention.”
I have calculated the loss of the Applicant at $13,200 from the date of termination to the last day of hearing (30 weeks at $440 a week gross). The maximum compensation to which the Applicant is entitled under S170EE(3) for remuneration that would have been received in respect of the period of six months that immediately followed the day on which the termination took effect is $11,440.
I have concluded that this maximum compensation should be awarded to the Applicant. I confess to having been troubled by the evidence given late in the hearing by Mr Jackson to the effect that it was “common knowledge” that the Applicant “had another job on the go” and that other employees were dismissed for some unspecified involvement with the Applicant in delivering the pallets on behalf of the Applicant. If there were reasonable grounds for the Respondent concluding that the Applicant had utilised the employer’s time and resources in the pursuit of a private business or additional form of employment then that could mean that the likely future duration of the employment of the Applicant with the Respondent could have been quite limited. However, this allegation of additional activity by the Applicant was never put to the Applicant and has never been advanced as a reason for the termination of the employment. In the circumstances, I have concluded that the Applicant is entitled to and should be awarded the maximum compensation payable under S170EE(3).
There is no evidence that this alleged activity was a factor in the decision to dismiss the Applicant. The allegation was never put to the Applicant at any stage during the trial and there was no evidence that the allegation was put to the Applicant at any stage during his employment except in an indirect fashion by Mr Jackson. In that respect, Mr Jackson states that he expressed a view to the Applicant to the effect that he could work back shift if he was able to “have another job on the go”.
Clearly, for reasons already covered, the allegation, suspicion or conclusion reached in respect of the “other job on the go” did not form part of the stated grounds for termination of the Applicant. I have also concluded that the unsubstantiated evidence of Mr Jackson cannot be used to conclude that the circumstances of this case warrant a reduction in compensation on the basis that the likely duration of the Applicant’s employment would have been short because of the alleged “other job on the go”: see Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 213.
On the last day of the hearing the Applicant was still unemployed. His loss was as calculated and he is entitled to the maximum compensation available under S170EE(3).
This is not a case in which there is any point in considering the possibility of other loss such as loss of opportunity to accrue long service leave benefits: see Sargeant v Regent Press Pty Ltd (unreported) 15 February 1995, Staindl JR and Jones v Armas Nominees Pty Ltd (unreported) 22 December 1994, Millane JR. However, the Respondent has also breached S170DB. There is nothing in the conduct of the Applicant that warranted summary termination or indeed, on the basis of the evidence, termination with notice. Under S170DB the Applicant was entitled to an additional four weeks notice or payment in lieu, i.e. $1,760.
MINUTES OF ORDERS
THE COURT:
Declares that the termination of the employment of the Applicant by the Respondent contravened S170DE(1) of the Industrial Relations Act 1988.
Orders that the Respondent pay the Applicant compensation under S170EE(2) of the Act in the sum of $11,440 within 21 days.
Orders that any payment to the Australian Taxation Office within that period of 21 days in respect of and relating to the payment of the $11,440 compensation is pro tanto satisfaction of the order in 2 above.
Orders that the Respondent pay the Applicant compensation under S170EE(5) of the Act in the sum of $1,760.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 20 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 24 October 1996
Solicitors for the Applicant: Macpherson & Kelley
Counsel for the Applicant: Ms L Fleming
Mr J Hargrave, Employee Relations Officer, Printing & Allied Trades Employers’ Federation of Australia appeared for the Respondent.
Dates of hearing: 29 and 30 July and
15 August 1996
Date of judgment: 24 October 1996
Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Termination of Employment
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Compensation
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Implied Terms
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Unconscionable Conduct
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