Denise Marie Dowling and Ansett Australia Limited

[1994] IRCA 183

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI 165 OF 1994

BETWEEN:
  DENISE MARIE DOWLING

Applicant

AND:
  ANSETT AUSTRALIA LIMITED

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

The applicant is now 53 years old.  Before her employment was terminated on 1 July 1994, she had been employed for 28 years by the respondent, as a flight attendant, and more recently as a purser.

During the trial, I gave leave to the applicant to amend the name of the respondent to Ansett Australia Limited.  Incorporation was formally admitted.

-2-

At all material times the applicant was employed under the Flight Attendants(Domestic Airlines) Award 1985, a federal award.

The respondent summarily terminated the applicant’s employment on 1 July 1994, for allegedly fraudulently altering a sick leave certificate issued to her by a Dr. Wong, which certificate she presented to the respondent to justify the payment of sick leave to her for 18 and 19 May 1994.  The respondent’s contention was that the certificate had been issued by Dr. Wong to cover one day only, 18 May 1994, and that the applicant had changed 18 to read 19 on the certificate.

The applicant was interviewed by employees of the respondent on 1 July 1994 when this allegation was put to her.  She denied it, and maintained her denial in the witness box.

The award under which the applicant was employed provided employees with 15 days sick leave per annum, 4 of which can be taken without supporting medical certificates.  Additionally, it provided for 6 days called URTI leave, which can be availed of without the need for supporting medical certificates.

-3-

As at May 1994 the applicant’s entitlement to uncertificated sick days was exhausted.  According to a Ms. Cohen, duty supervisor of the flight attendant department of the respondent in Brisbane, the applicant was one of 4 flight attendants in Brisbane who took the greatest number of sick leave days, there being 234 flight attendants employed by the respondent in Brisbane.   The respondent however, specifically denied reliance on the applicant’s sick leave record as a ground for termination.

Despite the fact that the evidence of Dr. Wong, the doctor who issued the sick leave certificate, was clearly crucial, the respondent did not call him.  In this, it was actuated by two misconceptions, the first as to whether or not the rules of evidence applied to the hearing, and secondly, as to the onus of proof in the circumstances.  That a major employer such as the respondent could take such little care to ascertain the true position I find rather alarming, particularly in light of the gravity of the allegation relied on by it to summarily dismiss a longstanding employee from its employment.

These misconceptions were persisted in, finding their way into the respondent’s written submission where it was suggested that

-4-

the rules of evidence might have been dispensed with to allow the respondent’s witnesses to give evidence of what Dr. Wong purportedly told them about the issue of the subject sick leave certificate.  This suggestion was not only improper, not having been urged upon me at trial, but also fatally flawed.  A quick reading of O33 r 3(a) reveals why, as it states:

3.        The Court may at any stage of the proceedings:

(a)       dispense with  compliance with the rules of evidence for   proving any matter which is not bona fide in dispute.
  (my underlining).

With the consent of the parties, the application had been set down to be tried in one day.  Late in the trial the respondent, obviously realizing the paucity of the evidence called by it, applied to have the trial adjourned to enable it to subpoena Dr. Wong, for him to give evidence at the adjourned hearing.  For reasons which I then stated, I refused that application.

-5-

While the circumstances of the state of the sick leave certificate are undoubtedly suspicious, I am not satisfied that the respondent has proved the reason relied on by it to terminate the applicant’s employment, namely that it was she who fraudulently altered such certificate (to quote the words used by the respondent in the letter of termination ex. A8).

Accordingly, I am not satisfied that the respondent has proved that there was a valid reason or reasons for the applicant’s termination of a kind referred to in ss.170 DE(1) of the Industrial Relations Act 1988. The applicant’s termination was harsh, unjust or unreasonable.

The applicant sought reinstatement to the position in which she was employed immediately before the termination.  She also sought the remuneration lost by her because of the termination.  The respondent has not argued that reinstatement would be impracticable.  The applicant’s pay was about $631.00 gross per week at termination.

The orders I make are:

1. An order requiring the respondent to reinstate the applicant by reappointing her to the position in which she was employed

-6-

immediately before the termination, such reinstatement to operate from the date of this order.

1. That the period between 1 July 1994 and the date of the applicant’s reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.

1. That the respondent pay to the applicant the sum of $13,250.00 being remuneration lost by the applicant because of the termination, such payment to be made within 14 days of the date of this order.

I certify that this and the preceding FIVE (5) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ...
JUDICIAL REGISTRAR

DATED:  24       November, 1994

-7-

Solicitors for the applicant:  Halletts
Counsel appearing for the applicant:             Ms. Linnane

Respondent in person per Mr. Young and Ms. Daglish

Date of hearing:  14 November, 1994
Date of judgment:  24 November, 1994