Ettridge, John v Transadelaide

[1997] FCA 1254

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW -TERMINATION OF EMPLOYMENT- complaint of unlawful termination of employment- whether employer terminated  employee for a  prohibited reason - onus of proof-remedy

WORKPLACE RELATIONS ACT 1996 ss. 170CK, 170CP, 170CQ, 170CR

WORKPLACE RELATIONS REGULATIONS 1996 reg 30C

ETTRIDGE V TRANSADELAIDE
SG37 OF 1997

L FARRELL JR
ADELAIDE
3 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY  )          SG37 of 1997

GENERAL DIVISION  )

B E T W E E N:

JOHN ETTRIDGE

Applicant

AND

TRANSADELAIDE

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL
PLACE:  ADELAIDE
DATE:  3 NOVEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The respondent pay to the applicant the sum of $11,000 within 21 days of today’s date.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA  )

SOUTH AUSTRALIA DISTRICT REGISTRY  )          SG37 OF 1997

GENERAL DIVISION  )

B E T W E E N:

JOHN ETTRIDGE

Applicant

AND

TRANSADELAIDE

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  3 NOVEMBER 1997

REASONS FOR JUDGMENT

This application comes before the Court pursuant to the provisions of the Workplace Relations Act 1996 (“the Act”). The relevant legislation is contained in Division 3 - Termination of employment, which commenced operation on 31 December 1996. The applicant seeks an order pursuant to Section 170CR. The orders that I can make under Section 170CR include compensation, reinstatement and a penalty of up to $10,000. The applicant sought reinstatement or compensation, he did not seek a penalty to be imposed on the respondent.

The applicant claims that his employment was terminated, at least in part on one of the following prohibited grounds;
Section 170CK(2)(a) temporary absence from work because of illness or injury within the meaning of the regulations; and (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.

In effect the applicant argued that his employment had been terminated because he had  been absent from work whilst certified by his medical practitioner as being unfit for work because of ‘sore neck and shoulder’ or because of the workers compensation claims he had made against the respondent or because of complaints he had made against the respondent pursuant to the South Australian Whistle Blowers legislation.

A summary of the facts can be found in my judgement of 11 September 1997 at pages 8 to 10.  There are some additional facts.

• The respondent made a decision  in 1992 to pursue bankruptcy proceedings against  the  applicant without warning.  It was the applicant’s evidence that costs in relation to one of his claims had been taxed at $4,681.63 in June 1992 and the only request for payment was a bankruptcy notice that he received a few days before Christmas that year.

• The applicant presented workers compensation  medical certificates between November 1996 and March 1997 certifying that he was suffering from a sore neck and shoulder and that he was fit to return to modified duties.  He was thereby asserting his entitlement to be paid weekly payments of compensation for that period or to be provided with modified duties, however the respondent made no decision about the payment of workers compensation for that period but instead  paid the applicant out of his long service leave and his annual leave entitlements

• There is no dispute between the parties that the applicant was given no notice of the termination of his employment and that he was not excluded from an entitlement to notice by virtue of serious misconduct.  There was no allegation of misconduct on the part of the applicant.

• A complaint was made by the applicant pursuant to the Whistleblowers Protection Act. The complaint was investigated. Mr Sandford who made the decision to terminate the applicant’s employment gave evidence that he was unaware that the applicant had made such a complaint.

• The respondent has a policy that if an employee who is injured at work  is unable to return to their substantive position (ie in the case of the applicant as a bus driver) permanent alternative employment will be sought for the employee.

• Mr Sandford gave no evidence of what steps he or anyone else took to find permanent alternative employment for the applicant.

• The applicant had accrued further entitlements to annual leave and at the time his employment was terminated he was still owed annual  leave.

• A number of employees had been using “sick pool’ Leave at the same time as the applicant.  But he was the only employee who was treated as having a frustrated contract of employment. 

PRELIMINARY ISSUE
At the commencement of the hearing in this matter the applicant sought to amend his application to include a claim pursuant to Section 170CM, being a claim for notice of the termination of his employment.

I refused that application because in my view the Act does not permit such an amendment. The applicant was only permitted to commence proceedings in this jurisdiction upon the Commissioner who conciliated the claim identifying the relevant sections in his certificate (Section 170CF(2)) and the election he made pursuant to Section 170CFA. The procedures are not easily understood by an unrepresented applicant such as the applicant here.

I did however suggest a course that the applicant adopted that was to amend his claim to include a claim in the accrued jurisdiction of the Court that the respondent failed to give the applicant reasonable notice.

The applicant also argued that the legislation was in breach of the convention in that he was not permitted to pursue a claim in this jurisdiction for breaches of both Section 170CM and Section 170CK.

In relation to the application by the applicant in the accrued jurisdiction that the respondent failed to give the applicant reasonable notice of the termination of his employment, I have accepted the respondent’s argument that the claim must fail because the legislation and the industrial agreement governing the applicant’s employment both provide for notice of termination of the applicant’s employment.  Whilst I have considered that there is a distinction between reasonable notice and the minimum provided by both the legislation and the industrial agreement in the absence of any argument to the contrary I have accepted the respondent’s argument that the applicant’s claim must fail.

The applicant also raised the possibility that he go back to the Industrial Relations Commission to seek an amendment to the certificate provided to him by Commissioner Lewin before the matter proceeded. It seems to me that there is no power contained in the legislation which permits that to occur, the Commission is functus officio in respect of the matter.

If I am correct in my approach and the Act does not permit the Court to allow amendment to include a claim pursuant to Section 170CM then it is an unfortunate result and bound to cause an increase in the amount of litigation as well as be financially burdensome to applicants.

TEMPORARY ABSENCE BECAUSE OF ILLNESS OR INJURY
Regulation 30C of the Workplace Relations Act defines the meaning of a temporary absence. The only relevant part here relates to whether the applicant’s sick leave extended for more than 3 months whether immediately before the termination of his employment or over a 12 month period.

It is clear however that the applicant has been absent on sick leave for more than 3 months of the last 12 months that he was employed and he was not on paid sick leave for the duration of the absences. He is therefore excluded from the definition of temporary absence.

THE EFFECT OF THE RESPONDENT’S DECISION TO TREAT THE APPLICANT’S EMPLOYMENT AS AT AN END BECAUSE THE CONTRACT WAS FRUSTRATED
The applicant’s employment came to an end as a consequence of a decision by Mr Sandford that  his contract of employment was frustrated, the respondent took the view that it had not terminated the employment of the applicant but that rather the contract had come to an end because the contract was frustrated.  That decision by Mr Sandford had two consequences for the applicant.

Firstly he was deprived of notice of the termination of his employment and secondly he was deprived of the right to use the internal appeal process that exists at TransAdelaide.  That appeal process was available to all employees whose employment was terminated by the respondent. 

ONUS OF PROOF
It was conceded by Mr Prendergast for the respondent that the respondent had the onus of proof.

Section 170CQ of the Act provides as follows;
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason but
(b) it is a defence to the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).

It is my understanding of that provision of the Act that the respondent carried the onus of proving that the reason or reasons for the termination of the applicant’s employment excluded one or more of the grounds prohibited by Section 170CK.

In this matter the decision was made by Mr Sandford based on the report of Dr Couper-Smartt and “other advice he had received” that the applicant’s employment was to be treated as at an end because the contract of employment was frustrated. I have previously decided that the applicant’s employment was terminated at the initiative of the respondent.

In the evidence before me  there has been no real elucidation of the reason that the respondent decided to treat the applicant’s employment as being at an end.  What was the respondent’s motivation here?  There is evidence that the applicant was one of many employees who had been in the sick leave pool but his was the only one whose employment  ended in the way that it did. There was no attempt to explain why the applicant was treated differently from other employees.

There was no attempt in the evidence before me to explain the process that the respondent went through in order to reach its conclusion that it could treat the applicant’s employment in the way it did (ie to treat the applicant’s contract of employment as being frustrated and therefore not to treat it as terminated by the respondent).  It seems to me that the applicant could draw the conclusion that the respondent was depriving the applicant of the internal appeal rights available to employees who were to have their employment terminated because of the extensive litigation he had already commenced against the respondent.

I accept the evidence of Mr Sandford that he was unaware that the applicant had approached the Whisleblowers in relation to a health and safety issue. What follows from that is that it  was not a matter that Mr Sandford could have taken into account.

For the respondent to prove that it did not dismiss the applicant for the prohibited reason it seems to me that open management must be demonstrated and here the process must have involved far more than the evidence given by Mr Sandford suggests.  It seems to me that the decision would have involved documentation as well as conversations that were not put before the court by the respondent and it would be unrealistic to expect an applicant to go ‘fishing’ for explanations.

I am of the view that the respondent has not discharged the onus of proving that the litigation that the applicant had conducted against the respondent in the pursuit of what he regards as his lawful workers compensation entitlements was not one of the reasons that it decided to treat the applicant’s employment as at an end.  I do so having regard to the following four matters.

Firstly, the history of the litigious relationship between the applicant and the respondent, and by that I mean the extensive amount of litigation that have gone on since the applicant was first injured in 1988.  For example, the difficulty the applicant had in obtaining discovery of documents from the respondent, the respondent’s failure to follow the very sensible recommendations of the various Workers Compensation Appeal Tribunal members and finally the circumstances in which the respondent pursued bankruptcy proceedings against the applicant.

Secondly, the medical report of Doctor Couper-Smartt should not have been relied on by the Respondent.  It seems to me that the report does not do what it should have done, that is to provide a medical diagnosis and a medical opinion of whether or not the applicant was fit to return to work on restricted duties as certified by the applicant’s general practitioner. There was never any dispute that the applicant was not fit to drive a bus.

The report in my view substituted Doctor Couper-Smartt’s  version of what is common sense for a medical diagnosis and medical opinion, in so far as it asserted that the applicant could not ever satisfactorily return to work with TransAdelaide in any capacity whatsoever.  Aside from that it seems to me that Dr Couper-Smartt’s opinion of what would be common sense seems out of touch with  the value of jobs to workers, many of whom endure working for employers who they would rather not work for because of the difficulty in finding alternative employment.

Thirdly, treating the contract of employment as being frustrated rather than actually terminating the applicant’s employment meant that the applicant was deprived of the right to an internal review of that decision and the right to notice of the termination of his employment.

Finally, Mr Sandford’s evidence that no other employee who was taken off the sick leave pool payments was treated in the same way as the applicant.

On the evidence before me I am satisfied that the respondent has breached Section 170CK of the Workplace Relations Act.

REMEDY
The applicant seeks reinstatement. That remedy is no longer the primary remedy but an alternate remedy to be considered alongside the other remedies available in Section 170CR. In determining which remedy to apply I have had regard to the circumstances of this matter. The ongoing litigation, the views of the applicant and Dr Couper-Smartt and the evidence regarding the changed circumstances at TransAdelaide. It seems to me that the preferable remedy is compensation.

In assessing the amount of compensation that the applicant should receive I have taken into account the likelihood that the applicant’s employment would have come to an end by lawful means, including the possibility that the applicant may have resigned.

I have specifically included in the amount of the judgment an amount representing the amount of 5 weeks notice that the applicant would have been entitled to receive had his employment been treated by the respondent as having been terminated by it. It appears to me that the Act permits me to do this and I do so in order to avoid the applicant being involved in further litigation in relation to the payment in lieu of notice of the termination of his employment.

I will therefore order that the respondent pay to the applicant a sum approximating 16 to 18 weeks pay.  In doing so I appreciate that the core dispute between the applicant and the respondent concerns his rate of weekly pay and I have had regard to that in awarding the applicant the sum of $11,000.

I certify that this and the preceding 7 pages are a true copy of my Reasons for Judgment.

FOR THE APPLICANT       :          IN PERSON

FOR THE RESPONDENT    :          MR PRENDERGAST

DATE OF HEARING  :          13 & 14 OCTOBER 1997

DATE OF JUDGMENT       :          3 NOVEMBER 1997