Irene Karakatsanis and Health Services Union of Australia v St Francis Xavier Cabrini Hospital

[1996] IRCA 74

DECISION NO:   74/96

C A T C H W O R D S

INDUSTRIAL LAW - Industrial Law - Termination of Employment - Unlawful Termination - Breach of Fidelity - Misrepresentation - working while on sick leave

Industrial Relations Act 1988 ss.170DC, 170DE, 170DF, 170EA

CASES:

O’Neil v Western Australian Government Railways Appeal Board and W A Government Railways Commission (88) 30 AILR 300

Byrne and Frew and Australian Airlines (1992) 45 IR at 200

Byrne and Frew and Australian Airlines (1994) 47 FCR 300; 120 ALR 274

Byrne and Frew v Australian Airlines (1995) 131 ALR 422

Gregory v Philip Morris Limited (1988) 24 IR at 413

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

IRENE KARAKATSANIS AND HEALTH SERVICES UNION OF AUSTRALIA -v- ST FRANCES XAVIER CABRINI HOSPITAL

No. VI -2186 of 1995

Before:  Judicial Registrar Ryan
Place:  Melbourne
Date:  8 March 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-2186 of 1995

B E T W E E N :

IRENE KARAKATSANIS AND
HEALTH SERVICES UNION OF AUSTRALIA
Applicant

AND

ST FRANCES XAVIER CABRINI HOSPITAL
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan        8 March 1996

THE COURT ORDERS:

1.      That the application be dismissed.

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-2186 of 1995

B E T W E E N :

IRENE KARAKATSANIS AND
HEALTH SERVICES UNION OF AUSTRALIA
Applicant

AND

ST FRANCES XAVIER CABRINI HOSPITAL
Respondent

Before:       Judicial Registrar Ryan
Place:        Melbourne
Date:           8 March 1996

REASONS FOR JUDGMENT

CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT

The applicant worked at Cabrini Hospital from 25 July 1983 to 25 January 1995. Her employment at the hospital was terminated by the respondent by letter dated 22 March 1995 (Exhibit R2).

The applicant was a domestic services assistant. Her duties included vacuuming, mopping, polishing, dusting, cleaning toilets and bathrooms, washing beds, replacing soiled towels, emptying internal rubbish bins, arranging flowers and returning empty water jugs from the ward to the kitchen.

EMPLOYMENT HISTORY

A WorkCover Report dated 23 February 1995 (Exhibit R11) includes the following comments on employment history.

1.the worker has used considerable sick leave during her period of employment having only four weeks of credits. Credits accumulate at 21 days per year and she has had 12 years service. (This suggests that the applicant was averaging 19 days of sick leave per year).

2.on 24 October 1994 the worker stumbled while mopping the stairs and initially there was no time lost from work on WorkCover although the worker took sick leave from 25 to 28 October but she later was absent from 21 November to 20 December due to a back strain and left leg pain.

When she resumed the worker was supposed to perform modified duties for two weeks with frequent rests and no stooping but she apparently performed her usual duties without difficulty.

3.on Friday 20 January 1995 there was a staff meeting of domestic service assistants during which staff was told that they would be asked to replace soiled towels in the bathrooms with clean towels from the linen trolley in the corridor of each ward.

The worker allegedly claimed she had insufficient time to accomplish this additional task so Mr R Pelz, Support Services Liaison Manager, arranged to work with the worker the following Monday to examine her work practices.

On Monday 23 January, Pelz remained with the worker throughout her shift during which she vacuumed, mopped, cleaned showers and toilets and her other normal cleaning duties without difficulty or complaint and Pelz was happy with her performance.

4.on Tuesday 24 January 1995 the worker phoned to advise she had food poisoning and would not be working.

The worker reported for duty the next day Wednesday 25 January performing normal duties and Thursday, 26 January, was her usual day off.

On Friday, 27 January 1995, a further phone message from the worker was received to advise she would not be working and the same afternoon the worker phoned Domestic Services Supervisor, Maria Vasiliadis to advise that her hands were sore and she was going to the doctor.

27 JANUARY 1995 TO 30 JANUARY 1995

The applicant’s evidence at the hearing was that she telephoned Mrs Vasiliadis on 27 January and advised that she had consulted a doctor and had sore arms and would not be at work for several days.

On Monday 30 January 1995 the applicant attended the hospital and lodged a WorkCover claim.

THE WORKCOVER CLAIM

WorkCover certificates (Exhibits R3, R4, R5, R6 and R7) certify that the applicant was unfit for any work duties from 27 January to 1 April 1995.

The description of injury/disease in each certificate is “painful knees and right shoulder”. In respect of the knees the diagnosis was “bilateral knee patella femoral strain”. In respect of the right shoulder the diagnosis was “right rotator cuff tendonitis (or supraspinatus tendonitis)”.

WORKCOVER INVESTIGATION

On or about 1 February 1995, Edward Raymond Williams, Manager, Occupational Health and Safety, Cabrini Hospital, authorised an investigation of the applicant’s WorkCover claim through the Victorian WorkCover Authority.

Mr Williams gave evidence that at about this time he advised the applicant that her WorkCover claim was being investigated and he directed a WorkCover officer “to proceed with surveillance”.

This appears to be a reference to confirming an investigation, including surveillance, put in train on 31 January by Veronica Pannikkar, WorkCover Officer. Mrs Pannikkar’s instructions were conveyed in a letter of 31 January to Mr Brett Evans of GIO Australia Limited (Exhibit R13). The letter reads as follows:

“Dear Brett

RE: Irene KARAKATSANIS

Further to our telephone conversation this day we wish to advise you of the following,

-According to Maria Vasiliadis (Supervisor), the worker phoned her on 27/1/95 to say her arms are both sore and she would not be coming in to work on Saturday (next day) because her Doctor told her it is work related and that she would see Maria on Monday.

-The worker came in to see me 30/1/95 explaining that she had been using big machines and has been pushed to work harder because of a reduction in staffing levels. I asked the supervisors to come into the meeting at this stage (Maria Vasiliadis and Ralf Pelz). The supervisors explained to the worker that there was a rumour going around about a new machine the male worker would use to clean carpets but this was not going ahead. I asked the worker whether she has reported pain or difficulty in carrying out any work to her supervisors she said no.

-Today the worker returned the claim forms holding her right arm bent in front of her body not allowing it to move. I asked the worker what caused her injury as she did not include this on her claim form. The worker replied that she has been pushed to work harder because of a reduction in staffing levels. Following discussions with the worker I later spoke with her supervisors who advised that there was a reduction in staffing levels from 3 to 2 cleaners per ward because the (sic) found 3 an overkill for the work that had to be done, this took place in October 1994.

-According to the Supervisors on 23/1/95 there was a meeting with the cleaners advising that they would be required to replenish patients rooms with a clean towel. All employees accepted the extra duty except Mrs Karakatsanis who claimed it would create more work. Ralf Pelz worked with the worker on the same day to show her how she can implement the new duty. Ralf advised she did very well.

-On 24/1/95 the worker called in sick with food poisoning. The following day the worker came in to work as per normal and was off on 26/1/95 and 27/1/95 on an accrued day off.

As discussed please arrange 5 to 10 hours surveillance with R A Priest and Associates immediately.

We request that this claim be investigated and a medical examination be arranged to address liability.

If you require further information please do not hesitate to contact the undersigned.

Yours Faithfully,

Veronica Panikkar
WORKCOVER OFFICER”

On 8 February 1995 GIO Workers’ Compensation (Victoria) Limited instructed R A Priest & Associates to investigate the applicant’s WorkCover claim.

On the same day (8 February) the applicant attended the hospital with her daughter and signed formal papers associated with her WorkCover claim. Mr Williams gave evidence that on this occasion the applicant advised him that her arm was still very sore and that she physically demonstrated to him her inability to raise her right arm above 90% (or shoulder elevation). Mr Williams demonstrated in the witness box what he claims was the demonstration given by the applicant to him on 8 February.

On 14 February (Exhibit R8) and 24 February (Exhibit R9) R A Priest and Associates prepared written reports of surveillance of the applicant on 9 and 10 February and 17 and 21 February.

On 21 February, while the applicant was under covert surveillance, she attended the rooms of Mr Michael J Troy, Orthopaedic Surgeon, at 24 Collins Street Melbourne.

The examination then undertaken was arranged by the WorkCover insurer. In a report dated 24 February (Exhibit R10) Mr Troy reported that the applicant claimed in examination on 21 February that she was unable to lift her right arm above her head. On page 4 of his report of 24 February Mr Troy states:

“RIGHT SHOULDER GIRDLE

Here she states it is tender generally all over the shoulder. She has a painful arc in abduction between 60° and 120°. She has normal flexion, internal and external rotation, and extension.

She has general tenderness around the joint capsule with no acute specific localising point over the supra-spinatus tendon and localises her pain production to the insertion of the deltoid muscle.

RIGHT ELBOW & FOREARM

In this particular area she has no localising trigger points of tenderness in the extensors of that forearm. Provocation tests for lateral or medial epicondylitis or musculo-tendonitis in the extensors produces no symptoms at all.

She has normal power, tone, grip and sensation in that right upper limb.”

Mr Troy’s report concludes with a detailed diagnosis as follows:

“This lady in the past may have had a soft tissue injury to her lower lumbar spine from an incident in November 1994. Clinical examination there today reveals that she has recovered from that.

Additionally, she gives symptoms now and has clinical findings of a supra-spinatus painful arc as verified by clinical examination. Also she states she has symptoms of arthritis in both knees.

I consider that the incapacity she describes related to her right shoulder is materially contributed to by her employment.

The known impediments and her recovery in returning to work are that rotator cuff impingements can last for many months in spite of the fact that she has had two injections of cortisone, and states she has relief of her symptoms. A full return of function may not occur for approximately two years.

There are no pre-01/09/85 factors in her history.

She does not have a permanent impairment in her right shoulder as she will improve with time.

She does not have any ongoing symptoms in her lumbar spine or left leg which require ongoing treatment. Additionally, the minor symptoms she describes of osteo-arthritis are not an impediment to returning to work, nor are they caused by the nature of her work.

She has a partial incapacity arising from an injury relating to her right shoulder and that prevents her returning to work using industrial vacuum cleaners and polishers as she may have been doing, and additionally raising her arms above head level if she has to arrange flowers or dust.

She does not have a total incapacity for the nature of work as described in her job description which is on the duty list which was faxed from Cabrini Hospital, dated January, 1995, from Mr Ralf Pelz, the Support Services Liaison Manager. The duties that she would not be able to do is vacuum with industrial type equipment, polish with industrial type equipment, nor arrange flowers, or clean above shoulder level. Simple activities such as cleaning bed pans, hand basins, dusting at or below shoulder or waist level, or below is fully within her capabilities, and therefore doing bedside tables, shelves, window sills, cross section chairs, equipment at shoulder level and overhead lights with a long handled dusting brush is within her capabilities.

I consider that the shoulder injury is work-related, that the painful knees are not work-related, and I also consider that she requires no further treatment for her painful knees or her lumbar spine, having recovered in that particular area as indicated by today’s examination.

The treatment for her shoulder is to continue with medication, have further cortisone injection if she needs to, and exercise in her own time without the need for twice weekly physiotherapy.

A review in three months’ time will indicate what progress she is making.”

The applicant was under covert surveillance on 8, 9 and 10 February and on 17 and 21 February. She was briefly filmed on video on 10 February and in more detail on film on 17 and 21 February. Only the video film of her activities on 21 February is of any real significance and it is her activities as portrayed on film on 21 February which led the respondent to terminate her employment on 22 March 1995 on grounds of dishonesty in relation to a WorkCover claim, misrepresentation of the nature of an alleged injury and inability to attend work in any capacity and unlawful absence on sick leave without any proper basis.

FURTHER MEDICAL ASSESSMENT

On 28 February 1995 the respondent faxed to Mr Troy a copy of the Investigator’s Report of 24 February which included observations of the activities of the applicant on 21 February but did not include a copy of the video film.

Mr Troy responded the same day in writing (Exhibit A1). His response includes the following:

“This Investigator’s Report confirms the opinion given in my report dated 24/02/94, from the examination carried out on 21/02/95.

At that time I considered she had a partial incapacity related to her right shoulder, which prevented her from returning to work using industrial type vacuum cleaners and polishers, or that she should be raising her right arm above shoulder height.

Therefore, I considered that simple activities such as cleaning bed pans and hand basins, dusting at or below shoulder level is fully within her capabilities, for instance, dusting bedside tables, shelves, window sills, and cross section chairs. Equipment above shoulder level height and overhead lights should be dusted with a long handled dusting brush.

I do not consider that she has any ongoing symptoms related to her lumbar spine, or either lower limb, and that the symptoms she described were not work-related at this time.

The observation report that you faxed to me confirms that this woman could cope with the nature of the work that I have already suggested in my guidelines.”

The Court notes that Mr Troy took an entirely different view of the capacity of the applicant to work when he examined the video film of 17 and 21 February at a later date.

The applicant places some reliance on the second report of Mr Troy (Exhibit A1) which he made on 28 February almost 3 months before he examined the video tape of the surveillance on 17 and 21 February.

The applicant submits that this report was available to the respondent in the weeks leading up to the termination and that it was not open to the respondent on the basis of this report to reach the conclusions of dishonesty, misrepresentation and unlawful absence on sick leave. However, the respondent did not reach these conclusions on the basis of Mr Troy’s report of 28 February although, no doubt, that report was taken into account. The basis of the decision to terminate the employment of the applicant is set out below and a further report from Mr Troy, well after the termination was tendered by the respondent. Clearly this final report from Mr Troy was of no relevance in the sense of an influence on the respondent before termination. However, it is of relevance in the sense that it supports the view taken by the respondent and was the revised view of Mr Troy once he had had access to the videotape. In my view the real relevance of Mr Troy’s final report is that the applicant is seeking to rely on Mr Troy’s second report which was made months before Mr Troy viewed the video tape.

In a third report dated 24 May 1995 (Exhibit R12) Mr Troy wrote:

“You recently sent me a video regarding the filming of this lady on 17/02/95 and 21/02/95 and have asked my opinion regarding this video:

My observation of this woman was that she was seen cleaning the glass in a high door and adjacent partition and she was doing this rapidly, readily moving her body and using either her right or left arm above shoulder height in cleaning this glass partition and the adjacent glass door and doing so vigorously.

Additionally in other scenes I witnessed this woman shopping in a greengrocer, picking up parcels readily with her left arm, and steadying and wheeling a shopping trolley.

At other times I noted she was also walking briskly along a footpath and appeared to be in no obvious distress.

I consider that she has no discernible symptoms seen on these observations to state that she has any “injury” or any symptoms which prevent her from returning to her pre-injury work.

I consider that there is no work-related reason she cannot cope with the nature of her full previous activities, and any further claim for treatment or compensation has been invalidated by the observations seen in this video clip.”

Mr Troy gave evidence. In cross examination and commenting on his viewing of the video tape he stated:

“I was quite surprised with her range of activities”.......

Mr Troy then confirmed and repeated the view he had expressed in his report of 24 May.

Dr Kioussis also gave evidence. He was called by the applicant. He confirmed that:

(i)     he was the applicant’s treating practitioner

(ii)the applicant was still his patient and he had treated her in relation to both WorkCare injuries.

(iii)the applicant was, in his view, unfit for work in any capacity from 27 January 1995 to 1 April 1995 and WorkCover certificates, Exhibits R3 to R7 had been completed by him on that basis

(iv)he had administered a cortisone injection on 3 February and that, while he expected that by 21 February the applicant’s ability to raise her right arm would have been in the region of 80% or just below shoulder level, it might have been possible that the applicant could raise her right arm to 180° without undue difficulty for a short period of time on 21 February. (The Court notes that Dr Kioussis never expressed his view in precisely that fashion but that is the effect of his evidence).

In response to a question as to whether the applicant was capable of raising her right hand above her shoulder on 21 February he responded:

“I wouldn’t be recommending anything that drastic, back at that stage.”

In response to a question as to whether he would be surprised if the applicant made such a movement (on 21 February) he replied:

“No, not if they (sic) were under the effect of pain killers, but I wouldn’t be recommending it.”

Dr Kioussis also gave evidence that in his view, as at 23 November 1995 when he gave evidence, the applicant was “fit for restricted, perhaps fulltime duties, if light enough duties were available to her” and he thought that she “had been partially fit for work for perhaps a month, two months”.

THE APPLICANT’S POSITION

Mr Watts for the applicant submitted that:

(i)the applicant was not dishonest and did not mislead staff at Cabrini Hospital

(ii)the applicant sustained an injury, was unfit for work of any kind on 21 February 1995 and at least until 1 April

(iii)on 21 February she had accompanied her husband to his place of work to watch over him and had helped him by cleaning glass as depicted on the video tape but had not performed any other cleaning work on 21 February or on any other day and there was no evidence which established that the applicant had performed any such activity at any other time while absent from work on the basis of injury

(iv)the severity of symptoms for an injury such as sustained by the applicant fluctuated and Dr Kioussis gave evidence to that effect.

(The Court assumes that there was an implication in the final submission of Mr Watts that the fluctuation in symptoms explained the applicant’s statement to Mr Troy at about 11:00 am on 21 February that “she was unable to lift her arm (right arm) above her head.”

(v)the applicant did not make any misrepresentations to staff at Cabrini Hospital, she simply agreed with the view of her medical practitioner that she was unfit for work

(vi)the employment of the applicant was terminated in breach of S170DF(1) in that at least one of the reasons for the termination was temporary absence from work because of illness or injury

(vii)the employment of the applicant was terminated without valid reason connected with the applicant’s capacity or conduct or based on the operational requirements of the hospital

(viii)the termination was in any event harsh, unjust and unreasonable

THE RESPONDENT’S POSITION

The respondent asserts that:

(i)the conduct of the applicant in February and March 1995 breached the duty of fidelity that exists in every contract of employment and this conduct was misconduct

(ii)the termination of the employment of the applicant on the grounds of this misconduct was a valid reason for termination based on the conduct of the employee

(iii)the respondent has accordingly discharged the onus on it as employer pursuant to S170DE(1)

(iv)insurance investigators provided the respondent with video tape (Exhibit R1) and written reports (Exhibit R8 and R9) and oral reports which demonstrated to any reasonable observer that the applicant was untruthful in representations made in a WorkCover claim and in respect of an alleged injury and in respect of an alleged inability to work in any capacity because of the alleged injury

(v)alternatively, the video tape and investigation reports gave rise to a reasonable belief on the part of the respondent that the applicant was untruthful in respect of the WorkCover claim and the alleged injury and the alleged inability to work

(vi)the video tape shows beyond doubt that on 21 February the applicant was working and working with some vigour, was cleaning and polishing and dusting glass doors and windows and was able, while so working, to raise her right arm to a perpendicular position at an angle of 180°

(vii)the applicant admitted that she was the woman in the video tape (Exhibit R1)

(viii)the applicant admitted that she was at the Unimodal premises on 10 February, 17 February and 21 February and that she may have attended those premises on other occasions

(ix)the applicant admitted that she was cleaning, polishing and dusting the glass windows and walls on 21 February

(x)the investigators report of surveillance (Exhibit R9) was in the possession of the respondent from at least 28 February and included the statement that at 7:33 am on 17 February the applicant “was observed leaving the building (i.e. the Unimodal building on the corner of Williamstown Road and Prohasky Street, Port Melbourne) ...and walked to the vehicle (i.e. Holden Sedan Registration No LTN357) and, as she did so, was seen to raise her right arm up high as she put on a jacket”

(xi)in February and March 1995 the applicant made representations to Maria Vasiliadis, Mitzi Allis, Veronica Panikkar and Edward Williams, all employees of the respondent in positions of some responsibility, that she was in pain, unable to work and, on some of these occasions, the applicant indicated that she had pain and restriction in the movement of her right arm

(xii)the applicant made representations that she was unfit to work from 27 January to 1 April by signing and handing in to the respondent (and on one occasion delivering to the respondent) WorkCover certificates (Exhibits R4, R5, R6 and R7), which certificates represented her as unable to work, and the applicant conceded in cross-examination that she knew and understood that the certificates certified that she was unable to work

(xiii)on 21 February about 4¼ hours after the applicant was filmed working with her right arm raised to the perpendicular position the surgeon, Mr Troy, noted and recorded that “she (the applicant) states that she is still unable to raise her arm (i.e. the right arm) above her head as previously (page 3 Exhibit R10)”

(xiv)on 23 February the applicant “favoured her right arm” throughout a detailed interview with the insurance investigator, Mr Fothergill and concluded her signed statement on that date as follows:

“I don’t work anywhere else. It’s enough to make it nice at home. I do a lot of things myself, I move, come the pain I stop. I am much better. Now I can comb my hair but still sore to lift my right arm. The physio say I have inflammation” (see Exhibit R11)

PROCEDURAL FAIRNESS

Mr Watt’s cited Ex Parte O’Neil v Western Australian Government Railways Appeal Board and W A Government Railways Commission (88) 30 AILR 300 and submitted that this was authority for the proposition that the termination of the applicant was unlawful and that the proper place to test the validity of the applicant’s absence on sick leave because of an alleged work related injury was by way of the appeal mechanisms provided in the relevant state WorkCover legislation.

There are a number of similarities between this case and O’Neil. In O’Neil a worker was injured in the course of his employment and he thereafter became entitled to and received weekly payments of worker’s compensation upon the basis that he was suffering a total incapacity for work. The worker was observed and filmed by investigators employed by the employer and from those films it could be seen that he was engaged in activities of a kind from which it could be inferred that he was physically capable of performing the work required by him to be done in his employment.

The employer showed the films to a medical practitioner who in a written report expressed the opinion that “Mr O’Neill is fit to return to his pre-accident duties as a radio technician forthwith”.

The employer gave the applicant a copy of the doctor’s report and showed him the films and he was directed to report at work with written reasons as to why he was unable to return to work. The following day the employer saw his own medical practitioner and was informed by that doctor that he was not fit to return to work and he was given a certificate to that effect. Two days later the worker gave that certificate to a work mate who handed it to a supervisor at the work place.

It is clear that in O’Neil the applicant had been summarily dismissed for misconduct and the misconduct relied upon was not that the applicant had failed to attend for work but that he had failed to attend at work and provide reasons as to why he was unable to return to work.

In O’Neil the misconduct was alleged to be fraud, i.e. breach of S188 of the relevant Workers Compensation Act. An industry appeal board found no evidence of fraud but upheld Mr O’Neil’s dismissal. Upon that finding the Full Court of the Supreme Court of Western Australia found that the only course open to the Board was to allow the appeal and reverse the decision appealed against (in other words reverse the decision to dismiss Mr O’Neill).

In this case there was no industry board finding of “no evidence of fraud” (or as the respondent here asserts, dishonesty). The facts are also different. Prior to dismissal the employer in O’Neill had conflicting reports and both were put to Mr O’Neill and he was directed to return to work or provide reasons as to why he could not attend for work. Mr O’Neill did provide reasons by way of the report from his general practitioner after the general practitioner had viewed the video.

If Mr Watts cited O’Neill as authority for the proposition that an employer must demonstrate on the balance of probabilities that the misconduct upon which it relies is established, I do not agree that O’Neill is authority for that proposition. If O’Neill is authority for that proposition I do not agree with it and would confine the case as authority strictly to its own facts.

I also do not accept that O’Neill is authority for any proposition that an employer cannot dismiss in circumstances where there is a pending WorkCover claim.

Counsel for the respondent drew attention to a passage in the initial judgment in Byrne and Frew and Australian Airlines (1992) 45 IR at 200. The case involved video surveillance and an award provision similar to S170DE(2). While Byrne and Frew is yet to be finally resolved, there is nothing in the majority review of the Federal Court (1994) 47 FCR 300; 120 ALR 274 or in the review judgments of the High Court (1995) 131 ALR 422 which detracts from the following statement of Hill J in the original judgment at 200:

“The true position is that a termination will be in contravention of the award where the circumstances are such that the facts cited as justifying it are either not established objectively to be true or there were not reasonable grounds upon which the employer could have concluded them to be true: Gregory at 413; 471. Where, as Gregory points out, the facts are clear, there will be no necessity to conduct a further inquiry; where the facts are not clear, then there will be an obligation to investigate the facts to determine whether there are reasonable grounds to conclude them to be true. The extent of the investigation required, if any, will depend upon all the circumstances.

Although United Kingdom cases must be scrutinised carefully, having regard to differences in the statutory context, (the basic test in the Employment Protection (Consolidation) Act 1978 is one of “fairness”, albeit that the provisions are more detailed than those of the award) the result reached in that country does not differ substantially from what I regard the law to be in Australia. In British Home Stores Ltd v Burchell [1978] IRLR 379, Arnold J, delivering the reasons of the Employment Appeal Tribunal said (at 380):

“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question...entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

This test accords substantially with that adopted by the Full Court of this Court in Gregory in the passage cited with approval from Smith v City of Glasgow Council (1987) IRLR 326 at 329.”

The reference to Gregory was to Gregory v Philip Morris Limited (1988) 24 IR at 413 which reads:

“The question whether a dismissal is harsh, unjust or unreasonable must be determined in the light of the facts as they appear at the relevant time. We accept that, if the relevant facts are not clear, it is the obligation of an employer bound by a provision such as cl 6(d)(vi) to establish those facts before dismissing an employee; cf the observation of Lord Mackay of Clashfern in Smith v Glasgow District Council [1987] IR LR 326 at 329:

“As a matter of law a reason could not reasonably be treated as sufficient reason for dismissing Mr Smith when it had not been established as true nor had it been established that there were reasonable grounds upon which the special committee could have concluded that it was true.”

But, provided that the employer discharges the obligation to investigate the facts, a dismissal does not contravene the provision merely because it later appears that the true facts differed from those which appeared at the date of the decision to dismiss. Clause 6(d)(vi) is intended to operate in a practical way in a commercial and industrial environment.”

Counsel for the respondent submitted that the general observations made by the Full Bench of the Industrial Commission of South Australia in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 at 229 are persuasive in the context of this case. While Bi-Lo must be read as a case involving specific State Legislation which deals with unfair dismissal in similar but not identical terms to the Industrial Relations Act 1988, the comments cited are applicable to the circumstance of this case and read as follows:

“In a case such as the present one where the employee is dismissed for misconduct in respect of dishonest dealing with the employer’s property we do not believe it is a correct test to state as did the learned trial judge that the employer must prove, on the balance of probabilities, on the evidence submitted to the Commission, that the employee actually stole the goods, before it will escape a finding that a dismissal based upon such an alleged theft is to be treated as harsh, unjust or unreasonable.

There can be no doubt that in line with decided authority the ultimate task pursuant to S 31 is for the Commission to determine whether when viewed objectively the dismissal may be properly adjudged to fall within the statutory criteria of harsh, unjust or unreasonable.

An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.

Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”

FINDINGS

After careful and repeated viewing of the video tape of 21 February 1995 the Court has concluded that the applicant was on that morning working and working with vigour and without restriction of movement and on two occasions used her right arm at full extension and at an angle of 180° and most particularly, in an episode recorded at 6:42 am, when the applicant was filmed at full stretch and with her arm fully extended.

The Court has also concluded, as the respondent concluded, that the way in which the applicant was cleaning on 21 February was inconsistent with her many representations that she was unfit for work. The Court has concluded, as the respondent concluded, that the applicant had been untruthful and had breached her duty of fidelity to her employer. However, it is not necessary to reach such a specific conclusion because the Court is in no doubt that the respondent:

(i)conducted as full and extensive an investigation into all the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances

(ii)gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond to the allegations

(iii)honestly and genuinely believed, and had reasonable grounds for believing on the information available at that time, that the employee was guilty of the misconduct alleged

(iv)took into account any mitigating circumstances either associated with the misconduct or the employee’s work record

(v)concluded the misconduct justified dismissal

The Court is satisfied that:

1.the applicant attended at the hospital on 15 March and that she and her union representative viewed the video tape

2.the union representative was present when the respondent put the allegations to the applicant

3.the applicant was offered, declined and did not need, the services of an interpreter

4.the applicant provided no adequate explanation as to how she was able to perform the work she was shown performing on film

5.the applicant provided no explanation at all at that time as to how she was able on 21 February to raise her right arm as depicted on film

The Court accepts that the applicant’s husband required attention and supervision because of a medical condition and that his condition justified the applicant, or someone else, attending with him at his place of work at Unimodal on 10, 17 and 21 February and on other occasions.

The Court accepts that the applicant as a professional cleaner of some experience may have wished to assist her husband with his cleaning duties and did so on 21 February without remuneration but the way in which the applicant is shown as working on that occasion is not consistent with her representations that she was unfit to work.

At trial the applicant’s representative asserted that cortisone injections could have allowed the applicant to use her right arm for a short period as depicted on film but nevertheless remain unfit for work. The Court accepts the evidence of Dr Kioussis that cortisone injections can provide sufficient relief to permit an unfit person to perform duties temporarily which that person is not fit to perform in the sense of long term performance. However, there is no evidence of the applicant receiving any cortisone injection between 4 and 21 February and at no stage did the applicant offer a cortisone injection on 3 February, (18 days prior to the recorded cleaning work at Unimodal), as a reason for her ability to work on 21 February.

The Court finds that:

(i)     there were valid reasons for the termination of the applicant

(ii)the applicant was given ample opportunity to respond to the allegations

(iii)the termination was not harsh, unjust or unreasonable

(iv)the employment of the applicant was not terminated for a reason or reasons including temporary absence from work because of illness or injury

(v)one of the reasons for termination was the respondent’s opinion that the applicant was unlawfully absent on sick leave without a proper basis (or ground) for that absence. Such an opinion, if genuinely and reasonably held, is inconsistent with a termination on grounds including temporary absence from work because of illness or injury.

MINUTES OF ORDERS

THE COURT ORDERS:

1.That the application be dismissed.

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 17 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:                 
Dated:  8 March 1996

Mr Richard Watts, Industrial Officer Health Services Union of Australia for the applicants.

Mr P Burchardt instructed by Phillips Fox for the Respondent.

Dates of hearing:                22, 23 and 24 November 1995
Date of judgment:               8 March 1996