Hudson v Riverside Nursing Care Pty Ltd
[1996] IRCA 315
•12 July 1996
DECISION NO: 315/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - temporary absence due to injury - whether employment terminated for prohibited reason - VALID REASON - whether employer discharged onus of proof - HARSH, UNJUST OR UNREASONABLE - failure to consider or allow employee to use accrued annual leave and sick leave to obtain medical treatment
Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2), 170DF(1)(a), 170EA
Industrial Relations Court Regulations reg.30D
Income Tax Assessment Act 1936
CASES:Jones v Dunkel (1959) 101 CLR 298
JANICE PATRICIA HUDSON - v - RIVERSIDE NURSING CARE PTY LTD
No. VI 5661 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 12 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5661 of 1995
B E T W E E N :
JANICE PATRICIA HUDSON
Applicant
AND
RIVERSIDE NURSING CARE PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 12 July 1996
THE COURT DECLARES THAT:
The termination of Janice Patricia Hudson’s employment by the respondent on 5 November 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS:
The respondent reappoint Janice Patricia Hudson to the position in which she was employed immediately before her termination on 5 November 1995.
The employment of Janice Patricia Hudson be deemed to have been continuous for all purposes from 5 November 1995 to the date of reinstatement.
The respondent pay to Janice Patricia Hudson the remuneration lost by her because of the termination.
There be liberty to either party to apply to the Court on reasonable notice in respect to the calculation of the amount of the remuneration lost referred to in the preceding order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5661 of 1995
B E T W E E N :
JANICE PATRICIA HUDSON
Applicant
AND
RIVERSIDE NURSING CARE PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 12 July 1996
REASONS FOR JUDGMENT
By an application filed on 8 November 1995 the applicant alleges that her employment as a cook with the respondent between 31 December 1994 and 5 November 1995 was terminated in contravention of Division III Part VIA of the Industrial Relations Act 1988 (the Act). The applicant specifically relies on an alleged breach of section 170DF(1)(a) of the Act inasmuch as she claims that her employment was terminated by reason of or for reasons including temporary absence from work because of, in this case, injury to her ankle outside work requiring her to take up to six weeks off to have surgery.
In the alternative the applicant alleges that the termination on 5 November 1995 was unlawful because there was no valid reason connected with her capacity or conduct or based on the operational requirements of the respondent’s undertaking, establishment or service as is required by section 170DE(1) of the Act.
If there was a valid reason for the termination then the applicant relies on section 170DE(2) of the Act to say that it was harsh, unjust or unreasonable having regard to all the circumstances of the case.
Vladamir Martyniuk (Martyniuk), the respondent’s manager, appeared on behalf of the respondent representing the respondent at hearing. He told the Court that the termination of the applicant’s employment was one arrived at by mutual agreement because the applicant had no sick leave entitlements left and no leave available at the time she sought to take time off work to have an operation and convalesce for some weeks. As the respondent’s own records indicate at the date of termination there was some four and half weeks’ holiday leave owing and some accrued sick leave for which she was paid at termination.
So far as Martyniuk knew the applicant approached the respondent’s acting director of nursing, Alison Taylor, on or about 24 September 1995 and had asked her for two months’ leave. Martyniuk’s only knowledge of the matter was by way of hearsay; that is to say, he as manager relied on what he was told by Taylor, who was responsible for staffing matters, but who he alleged did not have authority to dismiss staff; that authority residing with Martyniuk exclusively.
According to Martyniuk, who gave sworn evidence, he believed, based on what he was told by Taylor, that Taylor had offered to find someone to fill in for the applicant but had been unable to do this. Because of this it had been agreed with the applicant that the applicant would leave and reapply for her position when she was able to resume work.
The evidence given by Martyniuk on the substance of the conversation he had with Taylor concerning her conversations with the applicant was objected to because of its hearsay content. Moreover, it was apparent from Martyniuk’s evidence that Taylor was a competent and compellable witness who could have been called to give direct evidence of the matters relied on by the respondent to establish some mutual agreement for the applicant to leave her employment. Taylor was not called to give evidence as Martyniuk seemed not to appreciate the need to call witnesses until he attended Court on the hearing date. Accordingly, I draw an adverse inference from the respondent’s failure to call this witness who was available to it and who was able to give evidence on a material aspect of the claim (see Jones v Dunkel (1959) 101 CLR 298).
The applicant’s uncontested evidence is that when she approached Taylor in late September 1995 and informed her that she needed up to six weeks’ leave to undergo surgery to her ankle, she asked Taylor if it was possible to find a replacement for her for the six weeks her surgeon estimated she would be unable to perform her duties as a weekend cook. Taylor told her she would ask Martyniuk, however, after one week when she heard nothing more from Taylor the applicant again approached Taylor telling her it was important for the applicant to know her position so that she could arrange a date for the surgery. The applicant claims that Taylor told her that she would speak to Martyniuk once she got a chance to do this.
The applicant was employed as a part time cook for eight hours a day between 8.30am and 5.00pm on Saturday and Sunday each weekend, with an average nett pay of $220.00 per week.
On Saturday, 4 November 1995 the applicant attended work as usual and on this date she alleges she encountered Martyniuk in the freezer section of the kitchen. Although they conversed about other matters there was no reference to any impending termination of her employment. Martyniuk was unable to recall any such encounter; although he conceded that when the applicant was at work on weekends he regularly passed her and, more importantly, he agreed that prior to the termination of her employment he had no discussion with her whatsoever concerning the termination or her future with the company.
On 5 November 1995 the applicant attended for work and at approximately 10.15am Taylor came into the kitchen and asked the applicant if Martyniuk had spoken to her. The applicant responded to this question in the negative and was then told “he’s (meaning Martyniuk) going to let you go”. When the applicant asked Taylor why this was so, she was then informed that the respondent could not find anyone to replace the applicant. At the end of the first conversation with Taylor on that day the applicant did not have any indication of when the termination was to take effect. At about 4.30pm she went to check the roster for the following week and noted that she had not been rostered on. She again spoke to Taylor who told her that she was not on the roster because the respondent was going to “let her go” that day and Martyniuk would give her her cheque.
The applicant looked for Martyniuk at the end of the working day on the Sunday and was unable to locate him. This meant that she had to leave without her termination pay. However, on the following day she attended the pay office and was paid termination pay accompanied by a pay advice dated 5 November 1995 (see Exhibit A1). At termination she was paid some four and a half weeks’ accrued annual leave together with leave loading, outstanding sick leave and time already worked. She received no compensation in lieu of notice which would, in her case, amount to the equivalent of one week’s pay or $220.00 nett.
FINDINGS
Section 170DF(1)(a)
I was not addressed by either party on the abovementioned provision and Regulation 30D of the Industrial Relations Court Regulations clarifying the circumstances which are or are not intended to be included within section 170DF(1)(a) of the Act. Taken as a whole in my view the nine sub-regulations of Regulation 30D indicate that there must be a “temporary absence” according to the criteria set out in Regulation 30D.
In this case there was no temporary absence from work because of injury; rather there was a request for special leave to seek medical treatment over a relatively short period. The applicant was not asked to obtain any medical reports or certificates. Essentially what appears to have happened, according to Martyniuk, is that the respondent allegedly made enquiries of its usual workforce and could not find a temporary replacement for the period sought for leave. The allegation that the respondent made such enquiries is based on hearsay, inasmuch as Martyniuk asserted that this is what he was told by Taylor and, for the reasons set out above, is not evidence that can be relied on. Accordingly, on the evidence given I am satisfied that this is a case where the applicant’s reliance on section 170DF(1)(a) is misconceived.
Section 170DE(1)
As the applicant quite correctly pointed out either she or someone else had to perform the duties of a cook at the nursing home on the Saturdays and Sundays she normally worked and, presumably, the respondent replaced her either with existing staff or other new staff. I am not satisfied on the evidence called by the respondent that its operational requirements were such that it was necessary to terminate the applicant’s employment. It was Martyniuk’s unsubstantiated assertion that the applicant had agreed to leave and reapply when she was fit to resume. This assertion is inconsistent with the respondent’s allegation that the applicant could not be replaced with a short term casual employee for the period of the applicant’s convalescence.
Bearing in mind the abovementioned matters I am not satisfied that the respondent has met the standard of proof required to show that it had a sound, defensible or well founded reason for the termination based on the operational requirements of the business and, therefore, the termination contravened section 170DE(1) of the Act.
Section 170DE(2)
If I am wrong in concluding that there was no valid reason for termination in the sense required by the Act, my finding is that in all the circumstances the termination was harsh, unjust or unreasonable and thereby contravened section 170DE(2) of the Act. At the relevant time the applicant had owing to her annual leave of some four and a half weeks not to mention some accrued sick leave. At no stage did Martyniuk or the respondent’s staff consider or discuss any options other than termination in circumstances where it was open to the applicant to, at the very least, use her annual leave entitlement, which as it turned out would have covered the period of her incapacity because the operation took place in mid December 1995 and four weeks later the applicant, on her evidence, was fit to resume her pre-operation work duties had they still been available to her.
The respondent sought to rely on award provisions without producing a copy of the relevant award applicable to this applicant’s employment. The applicant acknowledged the application of an award to her employment conditions but was unable to draw the Court’s attention to any relevant provisions of such an award. In an effort to afford the respondent every opportunity to argue its case the respondent was given leave to file and serve a copy of the relevant award provisions by 4.00pm on the day following the hearing if the respondent sought to rely on any provisions of the award in this case. The parties at the same time were granted liberty to apply further to the Court in relation to any matter raised in any award provision filed with the Court in accordance with the leave granted to the respondent. The extracts from the Health and Allied Services - Private Sector - Victoria Consolidated Award 1995 filed by the respondent take the matter no further and I have proceeded to make my findings on the evidence given at hearing.
REMEDY
The applicant sought both reinstatement and compensation for the period from 5 November 1995 to the date of reinstatement. She told the Court that following termination without notice she remained unemployed until mid December 1995 when she underwent the operation. She convalesced until mid January 1996. Although she applied for sickness benefits from 5 December 1995, she in fact received unemployment benefits for some two months before finding employment as a cook. Her new employment is casual employment on Saturday and Sunday for four hours each day at a rate of $131.00 nett per week or just over $200.00 gross per week.
The respondent did not lead any evidence to discharge the burden of proof it has of establishing that reinstatement is, in all the circumstances, impracticable. Accordingly, the orders made include an order for reinstatement, continuity of employment and the payment of lost remuneration to the date of reinstatement.
The lastmentioned payment should be calculated on the basis of the number of weeks work available between 5 November 1995 and 24 February 1996 when the applicant commenced her new employment less the four week period during which the applicant claims she was incapacitated. For the period from 24 February 1996 until the date of reinstatement the applicant’s earnings in her employment as a cook working some eights hours per week should be offset against the amount she would have earned in that period but for the termination of her employment. The receipts from the Department of Social Security are not deductible as income received in the relevant period. The other items which must be accounted for are any amounts payable and paid by the respondent to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936, as well as the amounts received by the applicant at termination for accrued annual leave and sick leave. Because of the evidence before the Court I have been unable to calculate the precise amount of the remuneration lost. If the parties are unable to agree on a proper calculation of this sum liberty is granted to the parties to apply to the Court on the calculation of the appropriate sum.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of Janice Patricia Hudson’s employment by the respondent on 5 November 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS:
The respondent reappoint Janice Patricia Hudson to the position in which she was employed immediately before her termination on 5 November 1995.
The employment of Janice Patricia Hudson be deemed to have been continuous for all purposes from 5 November 1995 to the date of reinstatement.
The respondent pay to Janice Patricia Hudson the remuneration lost by her because of the termination.
There be liberty to either party to apply to the Court on reasonable notice in respect to the calculation of the amount of the remuneration lost referred to in the preceding order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 12 July 1996
Solicitors for the Applicant: Law Partners, Rye
Appearing for the Applicant: Mr C. O’Neill
Respondent in Person.
Appearing for the Respondent: Mr V. Martyniuk
Date of hearing: 8 July 1996
Date of judgment: 12 July 1996
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