Crandon v Steelmark-eagle and Globe
[1996] IRCA 437
•29 August 1996
DECISION NO: 437/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - WHETHER VALID REASON - REMEDY - REINSTATEMENT - PERIOD OF PAYMENT OF REMUNERATION LOST
INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE, 170EE
Industrial Relations Regulations, Reg 30D
Steel Distributing (Consolidated) Award 1994
GARY ALLAN CRANDON - v - STEELMARK - EAGLE & GLOBE
QI 95/1327
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1327
QUEENSLAND DISTRICT REGISTRY
BETWEEN: GARY ALLAN CRANDON
Applicant
AND: STEELMARK - EAGLE & GLOBE
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The time for the filing of the application be extended to 27 September 1995.
The application be allowed.
The respondent reinstate the applicant by appointing him to the position in which he was employed immediately before the said termination, or appointing him to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination date.
Within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from 1 August 1995 to 29 February 1996 in the position in which he was employed immediately before the said termination.
Except in relation to matters specifically dealt with in these orders, the respondent treat the applicant as having been continuously employed by it between the date of termination and the date of reinstatement.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI95/1327 QUEENSLAND DISTRICT REGISTRY
BETWEEN: GARY ALLAN CRANDON
Applicant
AND: STEELMARK - EAGLE & GLOBE
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
REASONS FOR JUDGMENT
Background
The applicant is now aged 25, having been born on 1 November 1970.
During the trial, I gave leave to the applicant to amend the title of the respondent to read The ANI Corporation Limited ACN 000 421 358.
At all material times the applicant was employed by the respondent as a process worker involved in the lifting and moving of steel at the respondent's premises at Northgate, Brisbane. The applicant, who has no trade qualifications, commenced with the respondent on 16 January 1995.
The applicant's employment was subject to a period of three months probation, which he successfully completed. He suffered an injury to his back at work on 19 April 1995. He went off work, and was in receipt of workers' compensation for various periods. He appears to have had several returns to work on lighter duties.
The applicant was not assiduous in keeping in touch with the respondent, and letting it know the state of his medical condition. A Mr Hansen, the Human Resources Manager of the respondent, spoke to the applicant on 13 June 1995 at which time he was informed that the applicant had a medical certificate certifying him unfit for work until 16 June 1995. The applicant did not attend for work the following Monday, 19 June 1995.
By letter dated 23 June 1995, and posted on 26 June 1995, the respondent informed the applicant that:
Your position with this company has been terminated in accordance with Clause 7(c) of the Steel Distributing Award 1994.
It transpired that the applicant attended for a further medical examination on 29 June 1995 at which time he was certified unfit for work up to 17 July 1995. The Workers' Compensation Board of Queensland had him examined by Dr. Boys, Orthopaedic Surgeon on 20 July 1995. The effect of that examination was that his workers' compensation payments cut out on 27 July 1995.
About a week after the cessation of workers' compensation payments, the applicant got in touch with the respondent seeking his job back. He was told there was no job available to him. With the aid of his brother, he made attempts to get his job back, including meeting with Mr Hansen on 15 September 1995. These attempts were unsuccessful.
The applicant instituted proceedings in this Court on 27 September 1995. His application originally came on for trial on 2 February 1996 at which time the applicant's brother, being not one of those persons contemplated by section 469 of the Industrial Relations Act 1988, was refused leave to appear for the applicant. The trial was aborted, and ultimately proceeded before me on 8 August 1996.
Findings
This matter is, I consider, capable of easy resolution. The respondent was premature in reaching its conclusion that the applicant had abandoned his employment. Clause 7(c) of the Steel Distributing (Consolidated) Award 1994 (which the parties agreed regulated the applicant's employment with the respondent) relevantly provides:
(i) The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned his employment.
(ii) Provided that if within a period of 14 days from his last attendance at work or the date of his last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of his employer that he was absent for reasonable cause, he shall be deemed to have abandoned his employment.
The respondent agreed in evidence that 16 June 1995 was, for the purposes of Clause 7(c)(ii), the date of the applicant's last absence in respect of which notification had been given. The respondent, by its decision of 23 June 1995 to terminate the applicant's employment, put it out of the applicant's power to establish to its satisfaction that he was absent for reasonable cause.
Further, and of significance, is the fact that the applicant's de facto, by letter dated 19 June 1995, had written to the respondent advising in effect that a further medical certificate, to cover the applicant from 16 June 1995 onwards, was being obtained. Mr Hansen, the Human Resources Manager, agreed that he had seen this letter between 19 and 23 June 1995. On the other hand, Mr Appenzeller, the Operations Manager, believed that he saw the letter only after the posting of the applicant's letter of termination. He went on to say that he would not have sent the letter of termination if he had got the de facto's letter before writing the letter of termination.
On the state of the evidence before me, I am satisfied that the respondent was in receipt of the letter of Ms Edwards (the applicant's de facto) at least before the decision to terminate the applicant's employment was communicated to him. Even if that were not the case, the respondent still acted prematurely in terminating his employment. The respondent did not have a valid reason within the meaning of subsection 170DE(1) of the Act to terminate the applicant's employment when it did. In the circumstances, it is unnecessary for me to deal with procedural fairness.
Remarks were directed to me about the operation of Reg 30D of the Industrial Relations Regulations in the present circumstances. I agree that the applicant did not comply with Reg 30D so as to found a case for breach of para 170DF(1)(a) of the Act. I am satisfied that the respondent has proved that it did not terminate the applicant's employment for temporary absence from work because of illness or injury as that is understood in the light of Reg 30D.
Extension of Time
Relatively early on, the applicant made it apparent to the respondent that he disputed the lawfulness of the termination of his employment. His brother wrote to the respondent to that effect by letter dated 28 August 1995. The applicant brought proceedings in the Queensland Industrial Relations Commission on 6 September 1995. In its written submissions the respondent did not contend that the time for filing in this Court ought not be extended. I extend the time for the filing of the application to 27 September 1995, the actual date of filing.
Remedy
The applicant sought reinstatement. The onus was on the respondent to prove that reinstatement was impracticable. I am not satisfied that it has so proved. According to Dr. Boys, the applicant has been fit to resume normal duties since his examination of him on 20 July 1995. With some retraining he could operate equipment the respondent has taken on since his termination.
In the circumstances of this case, I do not consider it appropriate to order the respondent to pay the applicant remuneration as if he had been continuously employed by the respondent from the cessation of his workers' compensation payments to the date of reinstatement. The respondent learnt from the Workers’ Compensation Board on 1 August 1995 of the cessation of workers’ compensation payments to the applicant. It might then have properly offered him his job back. Further, I consider that the remuneration lost by the applicant because (my emphasis) of termination does not extend beyond the end of February 1996 when, with proper representation at trial on 2 February 1996 the applicant might have got orders in his favour reinstating him to employment with the respondent. The orders I make reflect these considerations.
Orders
The orders I make are:
The time for the filing of the application be extended to 27 September 1995.
The application be allowed.
The respondent reinstate the applicant by appointing him to the position in which he was employed immediately before the said termination, or appointing him to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination date.
Within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from 1 August 1995 to 29 February 1996 in the position in which he was employed immediately before the said termination.
Except in relation to matters specifically dealt with in these orders, the respondent treat the applicant as having been continuously employed by it between the date of termination and the date of reinstatement.
I certify that this and the preceding four(4) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 29 August 1996
Counsel for the Applicant: Mr R. Jones
Solicitors for the Applicant: Mahoney & Hesford
Appearing for the Respondent: Ms Asbury
Metal Trades Industry Association of Australia
Date of hearing: 12 August 1996
Date of receipt of written submissions: 23 and 26 August 1996
Date of judgment: 29 August 1996
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