Ettridge v TransAdelaide

[1998] FCA 275

JOHN PATRICK ETTRIDGE v. TRANSADELAIDE
No. SG 91 of 1997
FED No. 275/98
Number of pages - 12
Industrial Law

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

VON DOUSSA J

Industrial Law - termination of employment - review of a decision by a Judicial Registrar - unlawful termination - whether reinstatement a primary remedy - whether reinstatement inappropriate - amount of compensation - relevant considerations

Federal Court of Australia Act 1976 (Cth)

Workplace Relations Act 1966 (Cth)

Workers Rehabilitation and Compensation Act 1986 (SA)

Industrial Relations Act 1988 (Cth)

Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

Kenefick v Australian Submarine Corporation Pty Ltd, (No. 2), (unreported, Wilcox CJ, 26 July 1996), applied

Liddell v Lembke (1994) 127 ALR 342, cited

Bean v Milstern Retirement Services Pty Ltd (unreported, Industrial Relations Court of Australia, 2 June 1995), cited

Burazin v Blacktown City Guardian (1996) 142 ALR 144, cited

ADELAIDE, 13 March 1998 (hearing), 27 March 1998 (decision)

#DATE 27:3:1998

The Applicant appeared in person.

Counsel for the Respondent: Mr D Lovell

Solicitor for the Respondent: The Crown Solcitor for the State of South Australia

THE COURT ORDERS THAT:

1. The application and cross application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

VON DOUSSA J

This is an application pursuant to s.18AC of the Federal Court of Australia Act 1976 (Cth) to review the decision of Judicial Registrar L Farrell made on 3 November 1997. The Judicial Registrar determined that the employment of the applicant, Mr Ettridge, had been terminated at the initiative of the employer on 18 April 1997 in contravention of s.170CK(2)(e) of the Workplace Relations Act 1996 ("the Act"). The Judicial Registrar reached this conclusion because she was not satisfied that TransAdelaide had discharged the onus (see s.170 CQ of the Act) of establishing that the termination was not for the reason that Mr Ettridge had participated in prolonged litigation against TransAdelaide over a worker's compensation claim. Pursuant to s.170CR the Judicial Registrar ordered that TransAdelaide pay Mr Ettridge $11,000 compensation in respect of the contravention. The Judicial Registrar declined to make an order for the reinstatement of Mr Ettridge.

In the application for review, Mr Ettridge alleged a number of errors of the law by the Judicial Registrar. He sought orders that he be reinstated, and be treated for all purposes as having been in continuous service from 18 April 1997. He also sought a remedy for a contravention of s.170CM of the Act. Mr Ettridge drafted the application for review and has appeared without legal representation in these proceedings.

Upon being served with Mr Ettridge's application for review, TransAdelaide filed a cross-application to review a number of conclusions reached by the Judicial Registrar which were adverse to TransAdelaide. Before the Judicial Registrar, TransAdelaide had contended that Mr Ettridge's employment had come to an end as his contract of employment had become frustrated by reason of an inability of Mr Ettridge to perform the central function of his employment, namely to drive a bus. The Judicial Registrar, following a preliminary hearing on this issue, ruled on 11 September 1997 that Mr Ettridge's employment had been terminated at the initiative of the employer (see s.170CD of the Act) and, accordingly, that the Court had jurisdiction to consider the merits of the application by Mr Ettridge. TransAdelaide sought to have that ruling overturned, as well as the finding that the termination occurred in breach of s.170CK. Further, TransAdelaide challenged the assessment of compensation on the ground that the Judicial Registrar erroneously included an amount in the award which was intended to compensate Mr Ettridge for the fact that he was not given a payment in lieu of notice, as required by s.170CM of the Act.

Mr Ettridge had previously made a complaint under the Whistleblower's Protection Act 1993 (SA) to the internal Audit Department of TransAdelaide over a safety issue at Morphettville Bus Depot. At a directions hearing Mr Ettridge indicated that in answer to the cross-application he would contend on the review hearing, that the Judicial Registrar erred in finding that his employment was not terminated on the ground that he had filed a "complaint" against the employer: see s.170CK(2)(e). The Judicial Registrar based her finding in favour of Mr Ettridge on the ground that his participation in proceedings against the employer for worker's compensation was a ground upon which his employment was terminated, but she specifically found that the fact that Mr Ettridge had made a complaint to the Internal Audit Department of TransAdelaide was not a reason for TransAdelaide's decision to terminate Mr Ettridge's employment.

Whilst the parties were agreed that the reviews should be conducted primarily upon the material introduced into evidence before the Judicial Registrar, Mr Ettridge said that he wished to lead further evidence to show that the finding of the Judicial Registrar that Mr G S Sandford, the manager for TransAdelaide at Morphettville who gave evidence at trial that he made the decision to terminate Mr Ettridge's employment, had knowledge that Mr Ettridge had made a complaint under the Whistleblower's Protection Act. The Judicial Registrar had accepted Mr Sandford's evidence that he was unaware of this fact, and based the finding that the complaint was not a ground for the termination on that finding. To this end Mr Ettridge filed substantial material, and requested that TransAdelaide make available at the hearing for cross-examination Mr Sandford, and another officer of TransAdelaide, Mr Wald.

At the commencement of the hearing of the reviews, I raised a number of matters with Mr Ettridge in an endeavour to identify the central issues of concern to him, and to isolate the issues that needed to be determined in order to resolve them. I pointed out to Mr Ettridge that the Judicial Registrar had decided in his favour that his employment had been terminated at the initiative of TransAdelaide, and that the termination had occurred in contravention of s.170CK(2). That section relevantly provides that an employer must not terminate an employee's employment for any one or more of the reasons set out in that subsection, or for reasons including any one or more of those reasons, which reasons include:

"(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".

On the finding in his favour that a contravention of s.170CK(2)(e) had occurred, the Court became empowered under s.170CR(1) to make one or more of the remedial orders specified in that section. In particular, s.170CR(1) provides:

"170CR(1) If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders: (a) an order imposing on the employer a penalty of not more than $10,000; (b) an order requiring the employer to reinstate the employee; (c) subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate; (d) any other order that the Court thinks necessary to remedy the effect of such a termination; (e) any other consequential orders."

Section 170CR(2), by reference to earlier provisions of the Act, requires the Court in calculating compensation to have regard to all the circumstances of the case including:

"(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the employee's service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant."

The Court is also directed not to fix an amount that exceeds, for present purposes, the total amount of remuneration received by the employee during the six months immediately before the termination.

Leaving aside the cross-application by TransAdelaide, I suggested to Mr Ettridge that his real complaint appeared to be that the Judicial Registrar had not made an order for his reinstatement. With this proposition Mr Ettridge agreed, although he added that he had an ancillary complaint about the amount of compensation, although compensation was not his central concern as he believed he should be reinstated. Mr Ettridge then said that he would concentrate his submissions on the question of reinstatement. I pointed out to Mr Ettridge that there was no practical point in exploring his allegations about Mr Sandford's knowledge of his complaint under the Whistleblower's Protection Act, as a finding in his favour on that point would merely reinforce the finding already made that his employment had been terminated in contravention of s.170CK.

Upon Mr Ettridge indicating that he would concentrate his challenge and submissions on the question of reinstatement and compensation, TransAdelaide indicated that it would not proceed with its cross-application. In the result, the issues that fall for determination have become limited to the appropriate remedy.

However, mention should be made of two matters raised by Mr Ettridge's application, although not ultimately argued. First, he sought to raise as a separate ground in support of reinstatement, s.298K(1) and 298L(1)(i), (j), and (k). These sections fall within Division 3 of Part XA of the Act and provide that an employer must not for a prohibited reason, or for reasons that include a prohibited reason, dismiss an employee. Prohibited reasons include that the employee has made a complaint against the employer under an industrial law to seek compliance with that law, has participated in a proceeding under an industrial law, or proposes to give evidence in a proceeding under an industrial law. Mr Ettridge however overlooked that Part XA makes provision for the freedom of association, and the sections upon which he sought to rely only operate in circumstances prescribed in Division 2 of Part XA. Matters raised in his proceedings against TransAdelaide do not fall within those provisions, and Part XA has no application.

The application also refers to s.170CM of the Act, and Mr Ettridge contended that the operation of the provisions of Part VIA of the Act relating to s.170CM were less than satisfactory. However, reference to s.170CM does not in the circumstances of this case give rise to any matter of practical consequence to Mr Ettridge.

Section 170CM provides that an employer must not terminate an employee's employment unless the employee has been given the required period of notice specified in that section, or has been paid the required amount of compensation instead of notice.

The circumstances of Mr Ettridge's termination are set out below. He was not given either notice or payment in lieu of notice. Immediately following his dismissal Mr Ettridge applied to the Australian Industrial Relations Commission for relief under s.170CE(1) on the ground that his termination was harsh, unjust or unreasonable and on the ground of an alleged contravention of s.170CK. He did not allege a contravention of s.170CM. Pursuant to s.170CF, the Commission attempted to settle the matter by conciliation. Conciliation was unsuccessful and on 20 May 1997 Commissioner Lewin issued a certificate in accordance with s.170CF(2). The certificate indicated two grounds upon which conciliation had been, or was likely to be, unsuccessful. The two grounds arose under s.170CE(1)(a) and s.170CK respectively. Mr Ettridge was then required pursuant to s.170CFA(3) to make an election to either proceed to arbitration in relation to his claim pursuant to s.170CE(1)(a) that the

termination of his employment was harsh, unjust or unreasonable, or to bring proceedings in the Federal Court pursuant to s.170CK or to do nothing. He elected to bring proceedings in the Federal Court, and he sought to raise as grounds both s.170CE(1)(a) and s.170CK.

At trial before the Judicial Registrar, Mr Ettridge sought to amend his application to include a claim pursuant to s.170CM in respect of the failure of TransAdelaide to give him notice or payment in lieu of notice. The Judicial Registrar refused that application. In her view, with which I agree, the Act does not permit such an amendment. An applicant is only permitted to pursue proceedings in the Federal Court in accordance with s.170CFA upon the certificate of the Commission which certifies the ground or grounds upon which reasonable attempts to settle by conciliation have been, or are likely to be, unsuccessful.

Had Mr Ettridge made a claim before the Commission for relief under s.170CM, and had the Commission included a reference to that claim in its certificate, the remedy which could have been awarded by the Court is provided for in s.170CR(4). That subsection does not provide for a remedy of reinstatement, but merely for the making of an order requiring the employer to pay to the employee an amount of damages equal to the compensation which would have been payable to the employee had a payment in lieu of notice been made in compliance with s.170CM. Although the Judicial Registrar refused leave to amend the application to include a claim under s.170CM, her Honour nevertheless included in the judgment for compensation an amount representing five weeks pay in lieu of notice to which Mr Ettridge would have been entitled had his employment been properly treated as a termination at the initiative of the employer pursuant to the provision of Part VIA of the Act. The Judicial Registrar considered that the powers arising under s.170CR(1)(c) and (d) were sufficient to enable such an award to be made.

Against this background I now turn to the facts. At the time of trial Mr Ettridge was aged 52. He commenced employment with the respondent in February 1984 as a bus driver. There had been an earlier period of employment with the respondent but that is not presently relevant. In February 1988 Mr Ettridge sustained a soft tissue injury to his neck and shoulder. He served notice of disability on the respondent on 15 February 1988 following which he worked a split shift in accordance with medical advice. The notice of disability initiated a claim for workers compensation under the provisions of the Workers Rehabilitation and Compensation Act 1986 (SA).

A dispute arose between Mr Ettridge and TransAdelaide as to the amount of his notional weekly earnings which determine the rate at which compensation is payable. Mr Ettridge applied to review TransAdelaide's decision. Since that time there have been numerous proceedings between the parties, some related to the rate of compensation, and some as to the cause of disability. At the time of trial there had been some 38 applications, including 21 seeking review of determinations, 9 appealing to the Workers Compensation Tribunal, and three appealing to the Supreme Court. The applications involved hearings on no less than 111 separate occasions.

The litigation lead to Mr Ettridge's treating general practitioner, Dr Carey, certifying that he was unfit to drive a bus because he was unable to concentrate on anything except the litigation. The first medical certificate to this effect was dated 31 July 1995 and certified a total incapacity for work due to an "anxiety/depression" which the worker claimed was caused by "unnecessary & stressful litigation in pursuit of entitlements". Mr Ettridge alleged that his anxiety and depression was a compensable condition. More litigation ensued over that question which was decided against Mr Ettridge at every level. Following an adverse decision in the Supreme Court in about November 1996, Dr Carey issued medical certificates certifying that Mr Ettridge suffered from a "sore neck and shoulder" and that he was only fit for modified duties involving 8 hours per day with a minimum of 3 hours between shifts. Apparently certificates in like terms had been issued over a long period, commencing well before the certification of total incapacity on 28 July 1995. In respect of the partial incapacity caused by his "sore neck and shoulder" Mr Ettridge received (and continues to receive) compensation of $329.08 per fortnight.

In November 1996 when the claim for anxiety and depression failed, Mr Ettridge remained away from work, receiving first sick pay from the "sick leave pool" and then long service leave and annual leave payments.

TransAdelaide and its employees had a co-operative scheme known as the "sick leave pool" to which all employees contributed two days of their annual sick leave entitlement. People suffering long term illness were then able to obtain benefits from this pool of accumulated entitlements. The normal benefit expired after 800 hours, but Mr Ettridge received in excess of 2,000 hours before payments to him from the pool were terminated in mid November 1996.

Mr Ettridge's leave entitlements were due to run out in March 1997. On 22 February 1997 Mr Ettridge served a medical certificate from Dr Carey certifying that he continued to suffer "stress induced disorder, anxiety, hostility" which he said was due to "constant litigation". The certificate certified that Mr Ettridge "not to drive buses. Fit for alternate duties as per rehab. schedule.". The rehabilitation schedule has not been introduced into evidence, but it is common ground that the effect of the certificate was that Mr Ettridge was fit for non-driving duties that did not require close concentration.

Upon receiving the medical certificate of 22 February 1997, TransAdelaide arranged for Mr Ettridge to be re-examined by a psychiatrist, Dr Couper-Smartt who had first seen Mr Ettridge at the request of TransAdelaide in 1995. Dr Couper-Smartt summarised his opinion in a report dated 13 March 1997 as follows:

"In summary, I do not believe that he is suffering from any psychiatric illness attributable to work factors although I do fully agree with Dr Carey's advice that, whilst so preoccupied with litigation, it would be inappropriate to expect him to attempt to take on the responsibility of any demanding job such as operating a bus. I further do not think that it is realistic to imagine that, whatever the eventual outcome of this issue, he could ever satisfactorily return to employment with TransAdelaide in any capacity whatsoever. Given the duration and intensity of the conflict between him and his employers, common sense would suggest that this can never be resolved in such a way that all parties would ever again be able to work productively together. From what Mr Ettridge was saying, it appears that he is liable to be engrossed in the complex and ever-expanding web of legal argument for many years to come. In practice, this will mean that he is most unlikely to be able to apply himself to any return to employment in any capacity for the foreseeable future - and, whilst engrossed in litigation, is unlikely even to be able to pursue his interests in mechanical inventions."

On 18 April 1997 TransAdelaide wrote to Mr Ettridge in the following terms:

"I refer to your incapacity for work which has now persisted since 28 July 1995. I have considered the evidence as follows: - The report of Dr Couper-Smartt dated 22 August 1995 which states that you suffer an adjustment disorder, and that your condition is likely to persist as long as the litigation between yourself and TransAdelaide continues. Dr Couper-Smartt also took the view that you should not drive or undertake any work with TransAdelaide. - The medical certificates and medical letters of your General Practitioner Dr Carey who has certified you unfit for work continuously since 28 July 1995. - Dr Couper-Smartt's evidence at the hearing of your workers compensation stress claim hearing on 20 and 21 February 1996. Dr Couper-Smartt took the view that you do not suffer a psychiatric disorder caused by work, but that you suffer a personality disorder which incapacitates you for work and which is likely to persist indefinitely. - Your own evidence at the hearing before Review Officer Duigan that you consider yourself unable to drive because of your concentration upon the litigation between yourself and TransAdelaide and that you are incapacitated for work. - The decision of Review Officer Duigan dated 18 March 1996 in which he accepts the evidence of Dr Couper-Smartt in relation to the diagnosis and prognosis of your condition, and found you incapacitated for work but not by virtue of a compensable disability being an illness or disorder of the mind. - The decision of the Workers Compensation Appeal tribunal dated 16 October 1996 which upheld the decision of Review Officer Duigan. - The report of Dr Couper-Smartt dated 13 March 1997 in which he states that, "I do not believe that he is suffering from any psychiatric illness attributable to work factors although I do fully agree with Dr Carey's advice that, whilst so preoccupied with litigation, it would be inappropriate to expect him to attempt to take on the responsibility of any demanding job such as operating a bus. I further do not think it is realistic to imagine that, whatever the eventual outcome of this issue, he could ever satisfactorily return to employment with TransAdelaide in any capacity whatsoever. Given the duration and intensity of the conflict between the him and his employers, common sense would suggest that this can never be resolved in such a way that all parties would ever again be able to work productively together." Having considered this evidence, I consider that the employment relationship between yourself and TransAdelaide has been frustrated by you incapacity to work due to you personality disorder. This incapacity does not arise from a compensable disability for the purpose of the Workers Rehabilitation and Compensation Act. As such, TransAdelaide considers the employment relationship to have ended. TransAdelaide will continue to compensate you for a partial incapacity due to a neck/shoulder injury which you sustained in 1988, until such time as it is authorised by the Workers Rehabilitation and Compensation Act to alter that payment. Please attend at the Morphettville Depot on Thursday 24 April 1997 at 09.30am to hand in the property of TransAdelaide which is still in your possession, so that I may process payment of any outstanding leave entitlements to you."

It is no longer disputed that the letter of 18 April 1997 constituted, for the purposes of Part VIA of the Act, a termination at the initiative of the employer. On the question of remedy, the Judicial Registrar said that having regard to the circumstances of the matter - the ongoing litigation, the views of Mr Ettridge and Dr Couper-Smartt, and the evidence regarding changed circumstances at TransAdelaide - compensation seemed the preferable remedy.

The reference to changed circumstances at TransAdelaide refers to evidence given by Mr Sandford that on 12 January 1997 TransAdelaide entered into a new Workplace Agreement under which a range of functions which had traditionally been treated as "modified duties" for partially incapacitated workers became part of the rostered work performed on a regular basis by drivers. This had the effect that, in Mr Sandford's opinion, there was not a suitable modified duties position available for Mr Ettridge in 1997. Rather, he said that there were a number of surplus employees in the organisation at the time of his termination.

The Judicial Registrar said she specifically included an amount equivalent to five weeks pay in lieu of notice in the sum of $11,000 compensation which otherwise represented approximately 16 to 18 weeks pay. A precise calculation was not given. Mr Ettridge alleges that his remuneration should have been in the order of $35,000 per annum, ie $673 per week. The amount awarded seems to reflect the fact that Mr Ettridge had a continuing entitlement to $329.08 per fortnight worker's compensation thereby reducing his gross weekly loss to about $503 per week. Such an approach would be in accordance with decisions of the Industrial Relations Court of Australia which held that worker's compensation payments should be treated as remuneration paid to the worker for the purposes of assessing compensation: Brown v Power (1966) 66 IR 1 and Kenefick v Australian Submarine Corporation Pty Ltd, (No. 2), (unreported, Wilcox CJ, 26 July 1996, upheld on appeal, unreported, Full Court, 8 July 1997).

On the review Mr Ettridge argued that reinstatement should be treated as the primary remedy to be awarded where employment is terminated in contravention of Part VIA of the Act. He argued that he has a fundamental right to his job, and that as he is fit for a wide range of alternative duties reinstatement should be ordered. In so far as he has been involved in ongoing litigation with TransAdelaide, he argued that many of the decisions have gone his way.

When Part VIA was first introduced into the Industrial Relations Act 1988, the remedies section, s.170EE, was in terms that it indicated a the legislative intention that reinstatement was to be the primary remedy: see Liddell v Lembke (1994) 127 ALR 342 at 360. As originally enacted, s.170EE(1) provided that the Court, unless satisfied that the termination of the employee's employment contravened no provision of Division 3 of Part VIA, may make such orders as it thought appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated. That section was repealed, and a new s.170EE substituted with effect from 30 June 1994. As amended, s.170EE(2) empowered the Court to order compensation where "reinstatement of the employee is impracticable". That statement of the power to order reinstatement was in turn amended with effect from 15 January 1996 by adding the qualification "if the Court considers it appropriate in all the circumstances of the case". The progression of these amendments indicates a lessening emphasis on reinstatement as the primary remedy.

Division 3 of Part VIA was substantially amended by the Workplace Relations and Other Legislation Amendment Act 1996 with effect from 31 December 1996. The remedy provisions formerly contained in s.170EE were repealed, and replaced by the provisions which now appear in s.170CR. Reinstatement is now merely one of the orders that may be made. I do not consider that a statutory intention arises in s.170CR(1) from the fact that reinstatement appears in the list of orders that might be made ahead of reinstatement, that reinstatement is to be regarded as the primary remedy. The only directive contained within Division 3 as to the manner in which the remedial powers are to be exercised is in s.170CA(2) which provides that the procedures and remedies established by Division 3, in the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all around" is accorded to both the employer and employee concerned.

In considering whether the discretion to order reinstatement should be exercised, a central consideration is whether a satisfactory working relationship can be re-established between the parties. As Moore J observed in Bean v Milstern Retirement Services Pty Ltd (unreported, Industrial Relations Court of Australia, 2 June 1995), in many instances personal tensions created by litigation can be expected to lessen if not dissipate entirely with the passage of time. However, such an outcome appears unlikely in this case. The evidence and submissions of Mr Ettridge indicate that he remains committed to ensuring that he establishes his due entitlements under the Workers Rehabilitation and Compensation Act. There is apparently outstanding one application for special leave to appeal to the High Court, and various applications which continue to dispute the assessment of notional weekly earnings. As Mr Ettridge remains determined to pursue these claims there is no reason to think that the level of disputation which he has with TransAdelaide will diminish. While he remains locked in battle with TransAdelaide, it is unrealistic to think that any sensible working relationship could be re-established.

The evidence of Dr Couper-Smartt, to the effect that Mr Ettridge's preoccupation and engrossment in compensation issues makes it unlikely that he would be able to apply himself to any return to employment in any capacity in the foreseeable future, is not challenged by other medical evidence. Dr Carey was not called to give evidence, and apparently Mr Ettridge declined to give TransAdelaide an authority to obtain a medical opinion from him. However, medical certificates issued by Dr Carey from 1995, and in particular the certificate of 22 February 1997, indicate that Dr Carey also considers that Mr Ettridge is suffering a disabling stress induced disorder, anxiety, and hostility. It is the component of hostility in particular that militates against the possibility of the re-establishment of any reasonable working relationship.

I have carefully considered Mr Ettridge's submissions, and I have considered the medical and other evidence afresh to form my own view on the question of reinstatement. In my opinion it would not be a proper exercise of the power to order reinstatement to make such an order in this case.

As to the award of compensation, whilst Mr Ettridge said that he considered the award inadequate, he emphasised that compensation was not his primary concern, and he did not advance submissions as to why the award was inadequate. Counsel for TransAdelaide merely argued that the award was within the bounds of reasonableness, and did not advance detailed arguments as to the calculation of compensation.

Apart from indicating that the award included five weeks wages to compensate for the lack of notice given to Mr Ettridge, the factors taken into account by the Judicial Registrar in arriving at the compensation figure are not mentioned. I have already indicated my view that the Judicial Registrar must have taken into account the established entitlement to continuing partial incapacity payments.

In assessing compensation the Court is required to have regard to all the circumstances of the case including those matters specifically listed in s.170CR(2) which are set out earlier in these reasons. The length of Mr Ettridge's service with TransAdelaide and the remuneration that he would have been likely to receive if his employment had not been brought to an end on 18 April 1997 are of particular importance. So to are "the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination" (s.170CH(7)(d)). Mr Ettridge contends that cl.14 of the Workplace Agreement is relevant as it provides:

"14. CONTRACT OF EMPLOYMENT Operator employees are guaranteed (subject to the individuals performance) that employment will continue with TransAdelaide (or its subsidiaries) for the life of any contract TransAdelaide has with the Passenger Transport Board and any future extensions of such contracts."

I do not consider cl.14 has the effect of guaranteeing the continuance of Mr Ettridge's employment in the circumstances that have arisen. The clause, by its terms, is subject to individual performance. Where for health or other reasons an individual employee's performance prevents the continuance of a reasonable working relationship, the clause does not remove the entitlement of TransAdelaide to lawfully terminate the contract of employment. The manner in which TransAdelaide brought the contract of employment to an end on 18 April 1997 was unlawful, being in contravention of s.170CK(2), but the likelihood that the contract of employment would have been lawfully terminated had the letter of 18 April 1997 not been sent remains as a high probability.

Whilst the evidence is sparse on the compensation question, it seems to me, as a matter of probability that there are three substantial considerations which bear on the assessment of compensation. First, it appears that by reason of the workplace agreement, the employer had an excess of people seeking modified duties. The argument therefore arises that employees requiring modified duties were redundant to the needs of TransAdelaide. Had Mr Ettridge been given notice and made redundant on the ground that there was no suitable modified position available to him, I think it is likely that he would have received the benefit of a redundancy payment considerably in excess of the five week notice period provided by s.170CM. However, the information before the Court does not indicate what redundancy arrangements may have applied, nor how they would operate in conjunction with a worker's compensation claim.

Secondly, although Mr Ettridge is presently receiving only $329.08 per fortnight in respect of his partial incapacity, there is the possibility that, because of the termination of his employment, his partial incapacity will be deemed to be, or will be treated as, total incapacity, and he might have a substantial ongoing entitlement to benefits under the Workers Rehabilitation and Compensation Act. Regrettably the Court has been given no assistance in endeavouring to estimate what, if anything, that entitlement might be. Under s.35(2)(b) of the Workers Rehabilitation and Compensation Act for the first two years of a period of partial incapacity, partial incapacity is treated as total incapacity unless the corporation establishes that suitable employment is reasonably available for the worker. Under s.35(2)(c) a different regime applies after the end of the first two years of the period of incapacity. That subsection provides:

"35. (2) ...... (c) after the end of the first two years of the period of incapacity, if - (i) suitable employment is in fact not available to the worker; and (ii) the worker established that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker's circumstances irrespective of the state of the labour market, partial incapacity for work will also be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment after the end of the first two years of the period of incapacity must be made on the basis that employment of the relevant kind is available to the worker."

As it seems that Mr Ettridge has been in receipt of a partial incapacity payment for a substantial time, the two year period referred to in s.35 already may have finished. However, there is a possibility that, at least for a time, Mr Ettridge may be held to be, or be treated as, totally incapacitated and that as a matter of law, there may be a sufficient causal connection between his condition and his established neck and shoulder injury which would entitle him to additional workers compensation payments. I do not rate this as a high possibility, but nevertheless it is a possibility that cannot be overlooked.

The third consideration concerns the question of Mr Ettridge's attempts to mitigate the losses he has suffered. It appears that he has not sought or obtained any other employment. Whilst his hostility towards TransAdelaide, and his commitment to his litigation prevents the re-establishment of any reasonable working relationship with TransAdelaide, there is apparently no medical reason why he could not establish a work relationship with another employer. He has the capacity for other work, and in the absence of evidence that he has made a conscientious search for other suitable work, that is a factor to be taken into account. It is a factor which serves to reduce the amount of compensation to which he might otherwise have been entitled.

The state of the material before the Court is such that only a very broad estimate of loss can be made. Likelihoods and possibilities, one way and the other, of the kind mentioned must be brought to account. In addition, I think that there should be a modest allowance to reflect the fact that the employer took the course of terminating Mr Ettridge's employment by its letter of 18 April 1997, without prior counselling, notice or warning, such that he suffered additional anxiety and stress. Under the former provisions of s.170EE, it was held by a Full Court of the Industrial Relations Court of Australia that compensation for shock, humiliation and distress could be included in an award: Burazin v Blacktown City Guardian (1996) 142 ALR 144. I think the same reasoning applies to an amount under s.170CR(1)(c).

As a result of TransAdelaide withdrawing its cross-application, no argument was presented as to whether the power in s.170CR(1)(d) to make "any other order that the Court thinks necessary to remedy the effect of such a termination" (ie a termination in contravention of ss.170CK) extends to including compensation for termination without notice. Notwithstanding the specific provisions of s.170CR(4) I am inclined to think that the power is wide enough, and in the absence of argument to the contrary, I share the Judicial Registrar's opinion that it is appropriate to include five weeks pay in lieu of notice.

Taking all these factors into account, I think an award in the order of $11,000 is appropriate.

For these reasons I consider that the application for review by Mr Ettridge should be dismissed. To formally dispose of the cross-application which TransAdelaide sought to withdraw at the commencement of the hearing, the cross-application will also be dismissed.