Galvin v Renito Pty Ltd

[1999] FCA 1005

FEDERAL COURT OF AUSTRALIA

Galvin v Renito Pty Ltd [1999] FCA 1005

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - unlawful termination - proscribed reason - onus of proof - whether employment terminated for reasons including physical and mental disability;  performance as a reason for termination

Workplace Relations Act 1996 ss170CE, 170CK, 170CM, 170CQ
Industrial Relations Act 1988 ss170DF, 170EDA
Conciliation and Arbitration Act 1904 s5(4)

Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 applied
Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 applied

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257cited
Johns v Gunns Ltd (1995) 60 IR 258 followed
Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 cited
Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995) applied
General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 cited

JOSHUA GALVIN v RENITO PTY LTD
VG 729 of 1998

RYAN JR
MELBOURNE
26 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 OF 1998

BETWEEN:	JOSHUA GALVIN Applicant
AND:	RENITO PTY LTD Respondent
JUDICIAL REGISTRAR:	RYAN
DATE OF ORDER:	26 JULY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application and claim of unlawful termination of the employment is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 729 OF 1998

BETWEEN:	JOSHUA GALVIN Applicant
AND:	RENITO PTY LTD Respondent

JUDICIAL REGISTRAR:	RYAN
DATE:	26 JULY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Application

   On 17 September 1998 the applicant applied in the Australian Industrial Relations Commission for relief in respect of termination of employment and identified the grounds on which the application was based as

   · s170CE(1) - harsh, unjust or unreasonable termination

   · s170CK - discrimination or other prohibited reasons

   · s170CM - failure to give statutory notice.

2. On 14 December 1998 Senior Deputy President Watson issued a certificate to the effect that attempts to settle the matter by conciliation had been or were likely to be unsuccessful. On 15 December the applicant's solicitors issued a notice electing to begin proceedings in the Court for an order under s170CR in respect of alleged contravention of s170CK.

3. On 23 December the applicant signed and his solicitors filed a claim of unlawful termination of employment under s170CP.  The claimant sought as remedy

   ·    compensation

   ·    written reference

   ·    penalty.

4. The claim was accompanied by a Form 5 application which gave details of claim as follows:

   "On the grounds stated in the accompanying Claim of Unlawful Termination of Employment in accordance with Form 5A, the applicant claims:

   1.        An order imposing on the employer a penalty under s170CR(1)(a);

   2.An order requiring the employer to pay the applicant an amount of compensation under s170CR(1)(c)."

5. Grounds for Claim of Unlawful Termination

   The claim, the accompanying claim Form 5A, did not in fact state grounds.  The first indication or hint of a possible prohibited reason which could constitute an unlawful termination came in paragraphs 16,17 and 24 of the applicant's affidavit sworn 26 February 1999.  In that part of his affidavit the applicant stated that the respondent's general manager, Victoria (Vicki) D'Enett

   ·    chased after him on 26 July 1998 after the conclusion of a conference at the Novotel Hotel in Pyrmont and said words to the effect "what's wrong?, you look terrible."

   ·    at the respondent's head office in Rushcutter's Bay on 28 July asked him why he "looked so terrible" and whether he "had any personal problems"

   ·    as his employment was being terminated at the Richmond office on 11 September 1998 said to him words to the effect  "We're worried about your health.  You look unwell."

6. Counsel for the applicant opened as follows:

   "We allege that one of the reasons for the termination of the applicant's employment was in breach of s170CK of the Workplace Relations Act. In particular, we say that one of the reasons for the termination of the employment was a physical and mental disability. The applicant was HIV positive; he does not have AIDS. As a result of his HIV status he was not required or did not take any days off ill during the course of his employment of about 20 months with the employer."

7. The way in which the case was put on behalf of the applicant was, in essence, that

   ·    the employment was terminated at the initiative of the employer and the applicant had to demonstrate that to be so and had done so

   ·    the applicant alleged that the reasons for termination by the employer included a reason of "physical or mental disability"

   ·    the respondent bore an onus to demonstrate that the termination of employment did not include the reason of physical or mental disability

   ·    the respondent had failed to discharge the onus

   · the applicant was entitled to maximum compensation and the Court should impose the maximum penalty available for breach of s170CK.

8. I have assumed that counsel for the applicant also implies that the applicant does not even have to point to any evidence or circumstances which might suggest the possibility of termination for a prohibited reason, although he does suggest in his final submissions (paragraph 19 of reply) that "it is open to the Court to draw reasonable inferences against the employer concerning the reasons for dismissal and in particular that the reason for termination was whatever disability, physical or mental, Vicki D'Enett had in mind at the time."  This submission presumably implies that it is reasonable to infer that Ms D'Enett, in using the words "We're worried about your health.  You look unwell," had in mind at the time a disability and the termination was for reason which included that disability.

9. Counsel for the applicant asserts

   ·    "the applicant need not show that he was in fact suffering from a disability" (reply paragraph 10)

   ·    "s170CK applies where there exists a particular reason" (whether or not there be any factual basis for the reason) (reply paragraph 14)

   ·    "the focus of the Court should not be diverted to the medical basis of the condition of Mr Galvin, or the knowledge of the employer of that condition.  The Court must always remain focused upon the reason of the employer." (reply paragraph 15).

10. Counsel for the applicant draws comfort from s170CQ, the section dealing with proof of issues in relation to alleged contravention of s170CK.

11. S170CQ states:

    "In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

    (a)it is not necessary for the employee to prove that the termination was for a proscribed reason;  but

    (b)it is a defence in 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)."

12. The circumstances surrounding a termination and findings of likely circumstances are matters which are often relevant in determining whether the employer has proved under s170CQ(b) that the reasons for termination did not include a proscribed reason. If an employer includes a proscribed reason in a decision to terminate and in an act of termination the employer will usually be taken to have that reason in contemplation irrespective of whether there is or is not a factual basis for such a reason.

13. The employment and circumstances leading up to termination.

    The employment and the circumstances leading up to termination can be summarised from the applicant's affidavit of 22 February 1999 as follows. 

14. The respondent is a wholesaler of hair and beauty products with three offices in Sydney and two in Melbourne.  The applicant was employed from about 20 January 1997 to October 1997 as business manager in the Chatswood office and was then transferred to the Richmond office in Melbourne.  He states that his duties included management, employment of staff, co-ordination of staff activities, banking, stock control and "maximising market share".

15. On or about 5 March 1998 the applicant attended a meeting with the general manager, Ms D'Enett, at head office in Rushcutter's Bay.  Ms D'Enett advised the applicant that she was unhappy with the administration of the Richmond office.  At that time Leanne Kawaji was acting as business manager at Richmond while the applicant was on leave.  Ms D'Enett and the applicant discussed some concerns raised by Ms Kawaji in respect of the management of the Richmond office.  These concerns included equipment invoices which Ms Kawaji could not find and her firm view that telemarketing and reports on telemarketing were inadequate.

16. The applicant returned to work at Richmond on 15 March and the next day Ms D'Enett arrived and handed him a written memorandum dated 17 March.  The memorandum was entitled "Richmond Warehouse Management Performance Review - Warning No. 1".  The memorandum was signed by Ms D'Enett as general manager and the applicant also signed as having received it on 17 March.  The managing director of the respondent company, Mr Lewis Simmons, gave clear, unequivocal and uncontested evidence that he directed Ms D'Enett to draft the memorandum and deliver it to the applicant.

17. The memorandum referred to

    ·    the applicant's assurance that he was keen to accept the challenge of putting the Richmond branch back on the road to success after a less than acceptable performance by the previous manager

    ·    Ms D'Enett's reliance on the applicant's ability to ensure sales figures that met the required standard

    ·    the standard had not been met and as a result the applicant's position as business manager was under review

    ·    it was apparent from "two unfavourable branch visitor's reports .... that the effective business control and business development functions are not being performed, resulting in poor sales performance"

    ·    ineffective control, direction and co-ordination of staff

    ·    unacceptable condition of telemarketing cards

    ·    failure to make required quota of daily telemarketing calls

    ·    "non-existent after service and follow-up calls"

    ·    branch presentation below acceptable standard

    ·    incomplete presentation of product lines

    ·    branch administration below acceptable standard

    ·    complaints

    ·    problems in maintaining staff harmony and motivation

    ·    current customer service level at Richmond branch "will not be tolerated".

18. The memorandum suggested a variety of solutions to the problems identified including

    ·    checking and  stamping sales orders

    ·    recording invoice numbers on credits

    ·    recording tele-sales

    ·    making the required quota of daily telemarketing calls

    ·    developing target area of salons within twenty minute radius of warehouse

    ·    maintaining telemarketing program

    ·    setting goals

    ·    monitoring performance and reviewing progress of sales team

    ·    promoting tele-sales as a positive business creator

    ·    delegating showroom and storeroom cleanliness and stock placement

    ·    monitoring stock movements

    ·    maintaining adequate records, including "outstanding" file, delivery sheet file and equipment repair/return register

    ·    demonstrating to staff company policies and procedures.

19. On 25 and 26 July 1998 the applicant attended a conference at the Novotel Hotel in Pyrmont.  After the conference Ms D'Enett said to him words to the following effect:

    "What's wrong?  You look terrible."

20. On 28 July at the request of Ms D'Enett the applicant attended head office and Ms D'Enett again expressed concern about the applicant's appearance.  In paragraph 17 of his affidavit the applicant describes this as follows:

    "She asked me why the profit at the Richmond branch was not as high as the respondent would like it to be, why I looked so terrible and whether I had any personal problems."

21. On 11 September 1998 Ms D'Enett attended at the Richmond office and at her suggestion the applicant signed an employee resignation form.

22. Termination at the initiative of the employer

    The respondent asserts that the applicant resigned and denies termination at the initiative of the employer.  Nevertheless, Mr Simmons admits he directed Ms D'Enett to extract a resignation or dismiss the applicant and it is clear that Ms D'Enett obtained a signed resignation in circumstances which I am satisfied amount to a termination of employment at the initiative of the employer.  The applicant filled out three employee resignation forms.  The first form was endorsed by the applicant with the words "forced resignation".  It was rejected.  The second form was endorsed by the applicant with the words "conditions agreed is 4 weeks and holidays and 1 week worked."  It too was rejected.  The third form gave reason for leaving as "personal".  It was "accepted".

23. I am satisfied

    ·    "the action of the employer (was) the principal contributing factor which (led) to the termination of the employment relationship":Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205

    ·    ".... the act of the (respondents) (resulted) directly or consequentially in the termination of the employment and the employment relationship (was) not left voluntarily by the employee":  Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160.

24. I find that the decision and direction of Lewis Simmons and the extraction of an involuntary resignation by Victoria D'Enett from the applicant on 11 September was a termination of employment at the initiative of the respondent, Renito Pty Ltd.

25. Onus of proof

    Provisions similar to s170CK have long existed in employment law. In Australia s5 of the Conciliation and Arbitration Act (1904) (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances.  In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266 - 271 Northrop J discussed at length those provisions and earlier authorities relating to them. He set out a passage which he held later (in Johns v Gunns Ltd (1995) 60 IR 258 at 267) had equal application in cases where the predecessor of s170CK(2)(a) applied. In Heidt at 268 he said:

    "The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. 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 any denial of the reason alleged in the charge."

26. In Johns at 268 Northrop J also commented on s170EDA, the predecessor of s170CQ, and on s170DF, the predecessor of s170CK, as follows:

    "Under subsection 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened subsection 170DF(1) unless the employer proves:

    "(c)the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or"

    It is because of this provision that the passage quoted from Heidt is of such importance.  On the facts of this case, on the assumption that subsection 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under subsection 170DE(1).  The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury.  A mere denial may not be sufficient.  All the facts and circumstances of the case have to be considered."

27. Moore J also considered the onus on the employer under s170DF and s170EDA of the Industrial Relations Act 1988 in Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995). At 20, referring to the proscribed reasons in s170DF(1) which are the proscribed reasons in s170CK(2) of the Workplace Relations Act 1996 he said:

    "Thus the proscribed reason need not be the only reason.  Section 170EDA requires the employer to establish either that if a proscribed reason is alleged, that was not the reason, or if a number of reasons are alleged, including a proscribed reason, the proscribed reason was not one of the reasons."

28. His Honor adopted a formulation of the onus on the employer approved by the High Court of Australia in General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 and expressed by Mason J when addressing s5(4) of the Conciliation and Arbitration Act 1904, an earlier predecessor s170DF and s170CK. At 617 Mason J referred to the onus on the employer of establishing affirmatively that it was not actuated by the reason alleged in that case in the charge laid under s5. He held that the consequence was that the employee, in order to succeed, was not bound to adduce evidence that the employer was actuated by that reason, a matter peculiarly within the knowledge of the employer. He found the employee was entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis was not displaced by the employer. He said:

    "To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge."

29. In this case the applicant seeks penalty and compensation under s170CK(2)(f). His hypothesis is that the employer, through Mr Simmons and Ms D'Enett, was actuated in dismissing him by his physical or mental disability. His counsel has asserted that the evidence is consistent with the hypothesis and that the hypothesis has not been displaced by the respondent.

30. Submissions on disability.

    There is no evidence that the person who indisputably made the decision to terminate the employment, the managing director, Mr Lewis Simmons, or the person who indisputably put the termination into effect, Ms D'Enett, knew that the applicant was HIV positive.  Richard Moore, a medial practitioner and clinical assistant and consultant to the Infectious Diseases Centre, Alfred Hospital, the Melbourne Sexual Health Clinic and the Carlton Clinic gave evidence that he had treated the applicant from June 1998 and that tests conducted on 14 June 1998 led him to form the opinion that "Mr Galvin is infected with HIV".

31. There seems to be an inference in the applicant's case that the respondent and specifically Mr Simmons and Ms D'Enett may have or are likely to have heard that the applicant was HIV positive and that either of them or both of them terminated his employment because of his condition which the applicant asserts is a physical or mental disability which was within the purview of s170CK(2)(f). I do not accept that such an inference can be reasonably drawn from the evidence, and more particularly I do not accept that such an inference is open from the findings I propose to make in respect of the evidence.

32. It is not necessary for me to rule on the submission of counsel for the respondent that "knowledge by the respondent of the existence and nature of the alleged disability must be established by the applicant" (paragraph 5 of Reply).  If I had to rule on that submission I would be likely to find that an applicant has no onus to "establish ... knowledge by the respondent" but could sometimes succeed in cases in which the employer did not know of the existence and nature of the disability and where no disability in fact existed provided that the employer included as a reason for termination a reason of disability.  For reasons which follow, it is also not necessary for me to rule on the respondent's alternative submission (paragraph 5 of the Reply) that "it is a defence to the proceeding that the respondent may establish that it has no knowledge of the existence of the alleged disability".  I observe that a lack of knowledge of an actual or alleged disability is likely to constitute a significant factor in a successful defence because it will assist the employer prove that the reasons for termination did not include a proscribed reason of physical or mental disability.

1. Performance as a reason for termination

   Both parties spent a great deal of time at trial in assessing documentation including activity reports, sale incentive programs, group sales figures and visitor's reports.  Given my assessment of evidence and my findings on evidence the documents are of far less significance than attached to them by the parties.  Nevertheless, the documents were of some importance in terms of assessing whether performance was a reason for termination. 

2. Performance as a reason for termination is in itself only important in that a termination allegedly based on performance, be that a legitimate or unjustified basis, has that reason as a reason for termination.  If that is a valid or invalid reason for termination, it is at least a reason.  In some circumstances, a termination which includes a reason of performance may assist an employer establish a defence that, whatever the reason or reasons for termination, the reasons did not include a proscribed reason.  At the end of the day that is as far as such evidence can extend. 

3. If the employer has terminated the employment, and I have found that to be so, and if an application is made under s170CK and the allegation of termination for a proscribed reason is maintained, the employer must prove that a proscribed reason was not a reason of termination and no amount of evidence, weak or strong, of termination on grounds of performance, will of itself avoid the onus or the test of proving that termination was not for a proscribed reason. Strong evidence of a performance-based termination may assist the employer but the employer must meet the test. Weak evidence of a performance-based termination might assist the applicant in that it might make it less likely that the employer will discharge the onus. Either way, and separate from evidence of performance, the respondent still must prove the termination did not include a proscribed reason.

4. In this case there is substantial evidence that a reason for termination, firmly entertained and expressed by the respondent as the reason for termination of the employment, was inadequate performance following warning, counselling and assistance.  It is not part of this Court's function to rule on whether the employment was validly terminated on the grounds of performance.  It is not part of the Court's function to consider whether the termination was in any way harsh, unjust or unreasonable.  However, given the election exercised by the applicant, it is for this Court to determine whether the termination was unlawful because the reasons for termination included a proscribed reason of physical or mental disability.

5. Conclusion and Findings

   I have concluded that the respondent has discharged the onus and has proved on a balance of probability that the reasons for termination did not include a reason of the applicant's physical or mental disability.  Ms D'Enett concedes that she did comment on the applicant's appearance and apparent illness at the conference in Pyrmont and at the respondent's office in Rushcutter's Bay.  She denies that at Richmond on 11 September 1998 she commented on his appearance or gave his state of health or his appearance as a reason for termination to the applicant or to Sally Arthurton or Andrew Murray. 

6. While I find the applicant generally a fairly impressive witness who answered most questions directly and made a number of direct and open concessions not necessarily in his interest, I found Ms Arthurton and Mr Murray much less impressive in their evidence and at times inconsistent in that evidence.  I was impressed with the evidence of Ms D'Enett and Leanne Kawaji, the respondent's business co-ordinator, and with relevant evidence from Mr Simmons.  I was not impressed with some of his evidence but I accept without hesitation that

   ·    he decided and indeed directed that the applicant's employment be terminated

   ·    he sent Ms D'Enett to Richmond for that purpose

   ·    he instructed Ms D'Enett to extract a resignation from the applicant and to dismiss the applicant if that did not occur

   ·    he rejected the second written resignation as insufficient and directed Ms D'Enett to obtain the third resignation which identified the reason of resignation as "personal"

   ·    he issued directions which led to a resignation which was involuntary and was no effective resignation but a dismissal at the initiative of the employer

   ·    he did not know of the applicant's HIV status until this was revealed or asserted at a conference in the Australian Industrial Relations Commission in November 1998

   ·    he did not have and did not entertain in any way a reason of the applicant's disability as a reason for termination.

7. I am not satisfied on a balance of probably that Ms D'Enett said to the applicant at termination what the applicant asserts she said, namely

   "We're worried about your health.  You look unwell."

8. I am not satisfied on a balance of probability that Ms D'Enett said to Sally Arthurton later that day words to the effect of those in Ms Arthurton's affidavit at paragraph 11.1 and 11.2.:

   "11.1The reason the Applicant was leaving was because the Respondent was concerned about his health.

   11.2The applicant was not looking the way he used to."

9. I am not satisfied on a balance of probability that Ms D'Enett said to Ms Arthurton what the latter, in cross-examination (T63) claimed Ms D'Enett said, namely:

   "The reason why we are letting Joshua go is because of his ill-health."

10. I am not satisfied on a balance of probability that Ms D'Enett responded to Mr Murray as he asserts she did in paragraph 9 of his affidavit that "the respondent was worried about the applicant's health" or that she said what Mr Murray asserts she said (XXN T82) "we are worried about his health".

11. In my view, it is inherently improbable that Ms D'Enett would have referred to the applicant's health when seeking to extract a resignation on grounds of performance or, if she did, that an expression of concern about the applicant's health amounted to disability as a reason for termination.  Certainly, the words "We're worried about your health.  You look unwell" do not of themselves amount to an expression of termination on the ground of physical or mental disability.

12. In my view, it is inherently improbable that Ms D'Enett would have volunteered such information to the applicant, or to Ms Arthurton and Mr Murray, even if she had said it to the applicant.

13. I note there is no evidence that the applicant told Ms Arthurton or Mr Murray on the afternoon of 11 September 1998 that Ms D'Enett mentioned concern or worry about his health or that she said he was unwell.  Indeed, although Ms Arthurton said she had a chat of perhaps half an hour with the applicant on that afternoon she gave evidence that (T60) "the only thing he told me was he was forced to resign".

14. I observe that affidavits sworn by Ms Arthurton and Mr Murray were drawn up by a solicitor after telephone discussions with the solicitor and in circumstances in which both witnesses refer to specific paragraphs in Ms D'Enett's affidavit but in neither case was either witness given an opportunity to actually read and consider Ms D'Enett's affidavit.  Ms Arthurton and Mr Murray both gave evidence that the solicitor told them by telephone what was in specific parts of the D'Enett affidavit and that they responded by telephone and in their affidavits with references to what they understood to be in the D'Enett affidavit and with their expressions of disagreement as to what they had been told was in the affidavit.

15. I also observe that there is uncontradicted evidence that

    ·    Mr Simmons and Ms D'Enett knew the applicant was gay

    ·    the respondent employed other men and women who were openly gay

    ·    the respondent did not discriminate in employment for or against gay persons.

16. My assessment of the overall evidence given by all witnesses over three days leads me to the conclusion that

    ·    Ms D'Enett is unlikely to have mentioned the applicant's health in the termination interview on 11 September

    ·    if she did mention a concern about his health (and I have found this unlikely) this did not in any way constitute a reason for termination based on disability and did not constitute a reason which included a reason of disability

    ·    if she did mention a concern about the applicant's health (and I have found this unlikely) Mr Simmons did not authorise a termination based in any part on the physical or mental disability of the applicant and did not have any disability of the applicant as a reason actuating him in directing termination

    ·    Mr Simmons did not authorise Ms D'Enett as an agent or employee of the respondent to terminate the applicant for reasons which included a reason of disability of the applicant

    ·    Mr Simmons could not have authorised Ms D'Enett to so act because he did not consider disability as a ground for ending the employment and disability could not have been and was not a reason for the termination of the applicant.

17. The effect of my conclusion and findings is a finding that the respondent has proved that the termination was for a reason or reasons which did not include the proscribed reason of physical or mental disability.  The application and claim of unlawful termination of employment must be dismissed.

    ORDER

    1.        The application and claim of unlawful termination of the employment be dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of Judicial Registrar RYAN.

Associate:

Dated:             26 July 1999

Counsel for the Applicant:	MR MARK IRVING
Solicitor for the Applicant:	GALBALLY & O'BRYAN
Counsel for the Respondent:	MR PETER HARRIS
Solicitor for the Respondent:	COHEN WOOLF & WEINBERG
Date of Hearing:	14, 15 & 16 JULY 1999
Date of Judgment:	26 JULY 1999