Jaime Lim v Darwin City Council

[1995] IRCA 687

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS accorded when injured employee  terminated after stating  he cannot work - relevance of termination clause in AWARD - partial failure of REHABILITATION program - REMEDY - whether REINSTATEMENT  impracticable.

INDUSTRIAL RELATIONS ACT 1988, ss 170DC, 170DE, 170EE.

JAIME LIM V DARWIN CITY COUNCIL

DI 195/1077

Before: Judicial Registrar Blokland
Place: Darwin
Date of  Hearing: 27 November - 1 December 1995
Date of  Judgment: 29 December 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
DARWIN DISTRICT REGISTRY

BETWEEN:

JAIME LIM
(Applicant)

AND:

DARWIN CITY COUNCIL
(Respondent)

MINUTE OF ORDERS

BEFORE:  Blokland JR

PLACE:  Darwin

DATE:  29 December 1995

ORDERS OF THE COURT:

(1) THAT THE RESPONDENT REINSTATE THE APPLICANT BY APPOINTING THE APPLICANT TO A POSITION ON TERMS AND CONDITIONS NO LESS FAVOURABLE THAN THOSE ON WHICH HE WAS EMPLOYED IMMEDIATELY BEFORE THE TERMINATION.

(2) THE RESPONDENT PAY TO THE EMPLOYEE THE REMUNERATION LOST BY THE EMPLOYEE BECAUSE OF THE TERMINATION. THIS SUM IS TO BE SETTLED BY AGREEMENT. IN THE EVENT THAT THIS SUM IS NOT AGREED BY THE SOLICITORS FOR THE APPLICANT AND THE SOLICITORS FOR THE RESPONDENT THE REMUNERATION LOST WILL BE DETERMINED BY THE COURT. LIBERTY TO APPLY IS GRANTED.

(3) THE ORDER FOR REINSTATEMENT IS TO TAKE EFFECT WITHIN FOURTEEN DAYS.

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
DARWIN DISTRICT REGISTRY

BETWEEN:

JAIME LIM
(Applicant)

AND:

DARWIN CITY COUNCIL
(Respondent)

BEFORE:  Blokland JR

PLACE:  Darwin

DATE:  29 December 1995

REASONS FOR JUDGMENT

The application

The applicant Jaime Lim seeks an order declaring the termination of his employment with the respondent, (Darwin City Council) to be in contravention of the Industrial Relations Act (1988), (“the Act”)  and further seeks orders for compensation and  reinstatement. The applicant claims the respondent has acted in breach of the procedural fairness provisions of the Act and that the termination was harsh unjust or unreasonable. For its part the respondent argues that the circumstances of the case were such that it could not have reasonably been expected to have given the applicant an opportunity to respond to the matters concerning the alleged failure of a rehabilitation program and poor performance which had been investigated by the respondent prior to termination. Further, the respondent argues the applicant lacked the required capacity to fulfil his duties. 

The factual background

(a) the applicant’s initial employment with the respondent

The applicant Jaime Lim commenced employment with the Darwin City Council on 14 September 1981. He was originally employed as a gardener. His duties included mowing, trimming trees and picking up rubbish. In 1983 his duties changed to include truck driving, driving a Darwin City Council truck and watering the city’s’ parks. In the wet season he generally took responsibility for mowing parks using a ride on mower. At various times he also used a hand motor mower. He usually worked in the northern suburbs. He was a qualified  truck driver and was attached to various mowing gangs. When he drove trucks he would also undertake other tasks such as checking irrigation systems, using a whipper snipper , trimming trees and similar duties. Essentially for most of the 1980’s the applicant performed a mix of these duties. Mr Suffolk, who was called for the respondent, stated that in his dealings with Mr Lim during this period, Mr Lim carried out his duties in a workman like manner.

(b) the injuries at work and the consequential changes to the applicant’s duties

In 1990 the applicant suffered an injury at work. When lifting a mower into a utility he injured his back. His claim was accepted and he was paid ten (10) days worker’s compensation payments. In 1991 he suffered a similar injury. Once again his claim was readily accepted and he initially had six months on workers compensation. Upon his return to work he participated in a rehabilitation program involving a variety of alternative duties within the Darwin City Council. He began truck driving combined with fixing signs and lights around the city. He was then placed in the rates section of the Darwin City Council. This work lasted for about five (5) to six (6) months. He was then involved in a tree survey of parts of  Darwin. His only difficulty he recalls in relation to this was that  he had some difficulty bending. The tree survey finished in May 1992. This was followed by a period of time when he worked with plumbers. During 1992 the applicant recalls he began working on the ride-on mower. He experienced pain on the ride on mower. He requested a special seat which had also been suggested by the occupational therapist Ms Pam Garten. The applicant says he was never provided with the seat as requested. He agreed in cross-examination that he had been provided with a seat with some cushioning but said it was still not the type of seat  requested.
Mr Suffolk said he thought the ride-on mower seat was inadequate and he made arrangements to obtain what he thought was an adequate seat with suitable padding. I conclude that the seat was eventually provided although for some time it was not clear to the relevant officers what was required. I find the Darwin City Council and its relevant officers approached the matter of providing a seat  in good faith.

Throughout the period since his injury the applicant has experienced pain of  varying degrees: (Ex R1 Report of Dr Millons 20 November 1991). Some of the pain he experienced  has meant he has not been able to perform full duties. At other times he has not  appeared to experience serious difficulty. He has also had numerous days on sick leave or workers compensation. The respondent’s records indicate these were supported by the appropriate medical certificates. From March 1994 to March 1995 the applicant had 25 days of such leave: (Ex A 14).

In 1992 the applicant was placed in Anula Park where his duties involved light pruning, weeding, watering and checking the irrigation equipment. He gave evidence that he performed these duties initially for six (6) months. He then took holidays. Upon his return he was involved in truck driving and mowing lawns around a shopping centre and a child care centre. In evidence he said he was able to do the work during the period November 1993 to February 1994. There were however some tasks which he could not cope with or which caused him pain so he did not attempt them. For instance, he was unable to carry a whipper snipper, he was unable to change truck tyres and he was unable to lift a big mower. He gave evidence saying he used a  small mower .

He gave evidence saying he was able to complete most of the duties required when he worked as part of a team or a gang. The applicant appears to be most upset that in February 1994 he was not permitted to continue driving. The applicant recalls being told he could no longer drive because he had taken a further three (3) days off on sick leave and he was unable to change a tyre, consequently, he could no longer drive trucks. The applicant expressed in the witness box his sense of grievance over this decision as he says that even if he couldn’t physically change a tyre, he could have  called a mechanic or a partner on the radio. The applicant  had holidays soon after this. He complained to his superiors of the decision to take him out of driving. After holidays he was placed back at Anula Park where his duties included watering and changing sprinklers. He said he felt bored as he had little to do. He said initially there was no pruning to be done and no weeding as poisons were used at the Anula Park. As he was alone at Anula Park, the applicant felt he had been placed there as some kind of punishment. He said it was like being in prison. I accept this was how it was perceived by the applicant but I do not think that was the respondent’s intention. In this regard Mr Dowling has given direct evidence on the point which I accept.

After a few months at Anula Park the applicant was offered work at the cemetery where he performed  duties similar to those at Anula Park. After a short period the applicant refused to work at the cemetery as he thought there were not enough duties of an alternative type and it was culturally difficult for him, believing as he does in the spirits of deceased persons. The Darwin City Council organised some psychological counselling for the applicant, however it appears to be accepted that the applicant, for cultural reasons could not undertake the work at the cemetery.

Not a great deal turns on the point of his non acceptance of work at the cemetery although it is appropriate at this point to note that the applicant was born in East Timor in 1954. He is of Chinese ethnicity. He attended both Chinese and Portuguese schools in East Timor before coming to Australia in 1981. Some of the applicant’s evidence was given with the aid of an interpreter when he was unable to express himself  adequately in English. Occasionally he also needed assistance from the interpreter  to  have some of the questions in English put to him in Hukka.

(c) complaints concerning performance which were brought to the attention of the applicant

It has been alleged that  fellow workers and supervisors complained to the applicant about his lack of performance concerning given tasks. I can only deal with those matters which have been the subject of evidence. The applicant disagrees generally with the proposition that he was trying to get out of work, but rather that he needed to take breaks during his work. That appears to be consistent with his rehabilitation program. Mr Suffolk gave evidence that on or about May of 1993 he told Mr Lim he was not putting enough effort in and that at the rate he was going “he’d do himself out of a job”. Mr Suffolk stated Mr Lim assured him that he was performing to the best of his ability. The applicant denies that Mr Suffolk complained to him about his lack of participation in the tasks to be completed. I find that such a conversation did take place as it is generally consistent with the turn of events of that time and the way  Mr Suffolk  viewed his own responsibilities. Mr Suffolk was called by the respondent . He has impressed me with the sense of fairness which he has brought to the case and I accept his evidence. I find there was a meeting on or about July of 1993 attended by Mr Lim and interested parties concerning  problems with Mr Lim’s rehabilitation. This meeting dealt with complaints of the fellow workers of the applicant. The process of rehabilitation was discussed with all persons present. A view expressed was that the applicant was not “pulling his weight”. That view may have been held but in substance cannot be accepted at face value as it is impossible to determine whether the persons expressing such a view were privy to the accommodation being made of Mr Lim’s situation. I find there was an incident in October 1994 involving Mr Lim and another employee Mr Greg Birchell in which there was an altercation over whether or not Mr Lim was to be picked up by Mr Birchell and whether he was at Anula Park at the correct time. I draw no adverse inference against Mr Lim in relation to this incident. It appears Mr Birchell overreacted in the circumstances and Mr Birchell  received a warning from his supervisor Mr Burgess: (Ex R 14). I find there are no further complaints of any type against the applicant after that date.

(d) the rehabilitation program 

A substantial amount of evidence has been provided to the Court concerning the success or otherwise of the applicant’s rehabilitation program. The applicant’s own view of his situation was that he was progressing through the various stages of rehabilitation, although he acknowledges some difficulties also. He is clear that he progressed at least through to the level two stage of the rehabilitation program and was able to do some, albeit only a few of the level three tasks. Level (1) tasks included light pruning, minimal operation of sprinklers, rubbish pick-up, truck driving, weeding, fertilising, raking. Level (2) tasks included most of those in the level (1)  list with the addition of mulch raking, using the push mower, light shovel work, tree planting and using irrigation equipment. Level (3) added use of the whipper snipper, wood chipper and chain saw: (Ex R6 Report, doc 12; Ex R7, doc 15).  The respondent’s case is in part comprised of the allegation that the applicant was disinterested in his own rehabilitation, that he was playing the system and malingering. There is some support for this view although the evidence does not go all one way: (Ex R2, letter 12 January 1992 from Dr Schmidt suggests malingering; Ex R1 similarly the report from Dr Millons dated 20 November 1991 although this report has less certainty about the conclusions and details the pain experienced by the applicant which appears to be accepted as genuine; Dr  Millon’s report  1 September 1993 suggests he cannot ascertain whether or not Mr Lim is malingering; the later rehabilitation reports indicate improvement: (Ms Garten notes he is “over-protective” of his back;  Report 29/4/93; Letter of  Karen McDonald , NT Rehab Services 21 December 1993 is positive towards the applicant’s rehabilitation). The Court has had the benefit of  evidence from the occupational therapist Ms Pam Garten. It should be noted, Ms Garten said in her evidence that the applicant was capable of truck driving and this was an appropriate duty for him. Her evidence is essentially that the applicant did not progress beyond  level one of the rehabilitation program. The applicant  had a perception that he would aggravate his back injury if he attempted duties at a higher level. Ms Garten attempted to persuade the applicant to change his perceptions. She said the applicant complied with the exercise program but he did not give his full effort to his work; at least his attempts, she explained, were inconsistent. She was of the view that the Darwin City Council cooperated with the rehabilitation program. The material produced to the Court on this question would also tend to support this conclusion.

It is difficult to ascertain during some stages of his employment whether the applicant was malingering or genuinely continued to have difficulties.  In support of Mr Lim’s case, Mr Walter Sulim, a leading hand and union delegate was called. Mr Sulim’s recollections were that Mr Lim would not lift anything heavy and he wasn’t prepared to use a whipper snipper. He acknowledged there had been complaints about Mr Lim from other workers who didn’t like him. Mr William Suffolk, a park supervisor employed by the respondent since 1974 gave evidence for the respondent concerning the applicant’s rehabilitation. He supervised a number of the programs of alternative duties provided for Mr Lim and understood the application of principles concerning rehabilitation. He agreed that in 1992 in relation to one aspect of the rehabilitation program Mr Lim did not progress through to the second week of that program. Mr Suffolk agreed that much of the work in the rehabilitation program was boring and repetitious, however he stated that this was the case with many of the manual jobs at the Darwin City Council. Mr Suffolk said that he made suggestions to Mr Lim about different ways to pick up rubbish and to use less liquid in the poisons container so that he could complete these duties in a manner consistent with his rehabilitation. This advice was acted upon by Mr Lim. To Mr Suffolk’s knowledge, each time Mr Lim attempted to resume full duties, there was a recurrence of his injury. Mr Suffolk said at some points he doubted whether Mr Lim was genuine, although he agreed that at no stage did Mr Lim fail to follow instructions. He said he formed the view that Mr Lim was angling for a “pay out”.

The minutia of the evidence of the rehabilitation program cannot be repeated here. I accept Mr Lim experienced pain as he stated at various stages over the relevant period. I accept at various stages he made genuine attempts to complete rehabilitation program , however, I also accept that his approach to the program was inconsistent in the sense that he did not always give the program and his duties his best efforts. A number of people, both health professionals and colleagues concluded at times he was a malingerer. His inconsistent efforts may well be attributed to his demonstrably gloomy approach to his predicament coupled with his expressed feelings of boredom and disappointment about aspects of his employment. No doubt his physical condition has contributed to this state of affairs. Be that as it may, I find that he did not progress through to the final stages of the  rehabilitation program as at the end of 1993. The medical evidence concerning the applicant towards the end  of 1993 and into 1994 is of a more positive light: (eg Pam Garten report of December 8 1993; Pam Garton March 8 1994; Pam Garton report 30 May 1995.) There is no evidence before the Court to indicate Mr Lim was not performing the duties required of him in the six months prior to termination. I find he could and did undertake many of the level two duties and some of the level three duties during the last six months of his employment.

(e) the termination

The applicant gave evidence that he went to see the respondent’s human resources manager, Mr Thurwell sometime early in 1995. The applicant  gave evidence that he told Mr Thurwell  the Council would have to find another job for him. He says Mr Thurwell told him he could not go back to his truck driving position.
The applicant stated he did not hear anything from Mr Thurwell and received the letter of termination  dated 28 March 1995: (ExA1). Mr Thurwell gave evidence that on the morning of  6 March 1995 Mr Lim made a comment to him about his situation. On 20 March 1995 Mr Lim went to see him. He says Mr Lim asked him for a lump sum payment. He says Mr Lim stated that his rehabilitation was not working, that he was under stress and was more relaxed at home. Mt Thurwell said he would review Mr Lim’s situation with the Territory Insurance Office and Social Security. Mr Thurwell said he told Mr Lim that termination may be an outcome. Mr Thurwell , after making some investigations had another meeting with Mr Lim on 28 March 1995: (Ex R10). He told Mr Lim he had made a thorough investigation but that a lump sum payment was not possible and that Mr Lim would be terminated. Mr Lim was upset and told Mr Thurwell he could not do that. Mr Lim was then supplied with the written notice which provided for four weeks notice. The reasons stated in the letter are as follows:

“   * failure of your health due to back injuries 

* failure to rehabilitate you back to your position of truck driver; and

* the inability to relocate you into another position within Council which you are able to
   perform and which does not expose you to further injury to your back condition”

I accept the substance of Mr Thurwell’s evidence concerning the conversation he had with Mr Lim on 28 March 1995. It is not that I reject Mr Lim’s account but Mr Thurwell has noted the conversation and his actions of investigating the circumstances are consistent with his more detailed version of the conversation.

Procedural Fairness

An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless the employee has been given an opportunity to defend themselves or the circumstances are such that it is unreasonable to expect the employer to grant such an opportunity: Industrial Relations Act (1988) s 170DC. In this case the respondent argues that these were circumstances in which it was not obliged to accord procedural fairness.

In arguing this point Ms Philp has suggested that where an employee such as Mr Lim has come to his employer and said effectively “I can’t work” and that they want a “pay out”, the employer is entitled to terminate the employment without further consultation with the employee. I cannot agree with such a characterisation. The facts of this case, notwithstanding the conversation between Mr Lim and Mr Thurwell on 28 March 1995 required the application of principles of fairness. There was immense possibility for misunderstandings over what Mr Lim could expect, what his options were or how he would be treated. On any view, Mr Lim’s approach was unsophisticated and ill-informed. He seemed to think because of his injuries he could be “paid out” to the age of  65,  an amount of $648,000. As Mr Alderman has suggested, the applicant thought he could improve his present situation. Essentially he was offering to leave at a very high price, although he mistakenly thought that he had some rights owing to him due to previous work based injuries. On this point, the respondent would have the Court characterise the decision to terminate Mr Lim’s employment as a legitimate counter-offer to Mr Lim’s request for a pay out. If the law of contract were to be applied, Mr Lim would be in his rights to reject the respondent’s counter offer of termination of employment. The respondents do not, I think, seriously contend that this is a case involving resignation rather than termination. Clearly, the case is one of “termination at the initiative of the employer” as required to invoke the jurisdiction under the Industrial Relations Act: Siagian v Sanel Pty Ltd (1994) 1 IRCR1; APEMSA v Skilled Engineering Pty Ltd (1994) 122 ALR 471. Clearly at the point of notice being given to Mr Lim he had no choice in the matter although he protested to the point of aggression after he was terminated.

This is a case which required procedural fairness to be observed. In this case there existed grave risks of making decisions on the wrong information. Mr Lim’s language ability alone needs consideration before he could be said  to appreciate the full import of a conversation  of the type he had with Mr Thurwell. When Ms Philp was putting the content of this conversation to Mr Lim in cross-examination, she suggested to Mr Lim that he had told  Mr Thurwell  he had a “relapse”. Ms Philp was obliged to repeat the question a number of times and the interpreter intervened. It was clear to me and I think to everyone in the Court that Mr Lim did not know the word “relapse” . Such are the dangers inherent in the circumstances. Here the applicant went to the respondent with what was obviously a wrongheaded view of his entitlements. I reject the argument that these were circumstances in which an employer did not have to comply with procedural fairness. In Nicholson v Heaven & Earth Gallery Pty Ltd 126 (1994) ALR 233 Wilcox CJ suggested there may exist circumstances of emergency which indicate it is not reasonable to give an employee the opportunity to defend themselves or make an explanation. Another case may be where the employee purposely avoids the respondent’s attempts to counsel or warn : Wiseman v SHRM, (No DI 951128, unreported,  29/12/ 1995). The case at hand required procedural fairness to be observed.   

Telling Mr Lim that Mr Thurwell’s enquiries may amount to termination in these circumstances did not amount to observance of procedural fairness. I appreciate the concept is a flexible one and must be applied in practical situations: Nicholson v Heaven & Earth Gallery Pty Ltd (supra); Johns v Gunns Ltd, No TI 148/94, 18 May 1994, Northrop J. In these circumstances when the employee is obviously misguided about the possible outcomes of his discussions, he ought to be given some opportunity to respond to the investigations which were made. Procedural fairness as required by the Act was not complied with. In terms of the applicant’s performance, no warnings or any hint that his employment might have been in jeopardy were given since 1993.  Warnings are a significant factor to be taken into account on the question of whether or not there has been a breach of procedural fairness under the Act: Dalle v The Australian Broadcasting Corp No NI 708/94, 31 March 1995, Patch JR;  Thompson v Taira (T&T) Pty Limited, No NI 1582, 1995, Patch JR. In my view this is particularly so when the employer is seeking improvement in the performance of the employee and termination of employment is to eventuate if the improvement does not eventuate.

In this case Mr Lim could have been warned that if he did not proceed to full duties within a given time frame, his employment would be in jeopardy. The investigation occurred without any input or comment from Mr Lim. He should have been given the opportunity to comment. His statement to Mr Thurwell of words to the effect that his rehabilitation had failed, given in the context of the particular conversation do not amount to proper participation in the investigation.

Valid Reasons

I have come to the conclusion that the reasons asserted  in the letter of termination are not valid reasons in the sense of being “sound, defensible or well founded “: Selvachandran v Peteron Plastics, No VI 1322R of 1994, Northrop J. First, it is asserted that the applicant is being terminated because of “failure of your health due to a back injury”.  There is no doubt that a substantial part of the applicant’s problems with performance commenced because of an injury at work.I accept that at various stages between 1991 to 1993 there was some doubt over whether the applicant would ever resume full duties or close to full duties. Closer to the termination however, the applicant was performing a greater range of duties. I qualify this because Mr Lim himself  gave evidence that he still has some hesitation with the whipper snipper. Apart from the whipper snipper, the applicant’s evidence concerning the fact that since the end of 1994 he has been performing almost the full range of mowing duties remains largely unchallenged. The onus is on the respondent to show the valid reason. I am not satisfied on the evidence that the first reason given is valid. I should also add that failure of health with no  connection to the  capacity of the employee is hardly a valid reason.

The second reason given is the alleged failure to rehabilitate himself  back to the position of truck driver. The evidence indicates the contrary. Even in the earlier period when  the applicant could not be said to be moving through the levels of rehabilitation, he could still drive the truck. Ms Garten has confirmed this to be an appropriate duty and Mr Lim has given evidence confirming he wants to drive the trucks. If this reason were to be accepted as valid it would be grossly unfair as it is the position Mr Lim was told some time ago that he could not have back even though he was qualified, ready and able to undertake it. The onus to prove the validity of the reason is on the respondent. I am not satisfied on the evidence that this reason is valid.

The third reason given is the inability to relocate the applicant into another appropriate position within the Council. I do not accept this reason is valid. There has been a substantial amount of evidence concerning different types of suitable work for the applicant at the Darwin City Council. He has been employed with the respondent for some fourteen (14) years. During that time he has turned his hand to a number of different duties. It is still not clear to me why the applicant could not have  stayed employed as he was at the time of the termination. It is not clear why the applicant can no longer be employed as a driver. Evidence has been given of suitable types of position with the walkways gang and new positions for horticulturalists have been advertised with the respondents since the applicant’s termination. The walkway gang positions are presently occupied but those positions represent the type of position that the applicant could have been re-located to instead of being dismissed. Mr Thurwell gave evidence that the Darwin City Council was one of the biggest employers in Darwin. I accept also the evidence of  Mr Newton that the number of employees is decreasing with some of the functions of the Darwin City Council going to the private sector. At this time however, the decrease in numbers of employees is slight. I am not satisfied that Mr Lim could not have been relocated. The respondent argues that there are no light duties, hence on the basis of operational requirements the applicant’s termination may be justified. The mix of duties open to the applicant as alternative duties are still duties nevertheless that the respondent employs someone to undertake. Mr Lim’s evidence concerning the most recent past is that he is fit for full duties in all but some very minor respects.
Most of the criticisms directed to Mr Lim’s performance relate to the period from the injury to 1994 He was terminated one year after..

Harsh Unjust or Unreasonable

If  I am wrong in relation to the question of valid reason, I consider in any case the termination to be harsh unjust or unreasonable. A reason is not valid if, having regard to the employee’s capacity and conduct and operational requirements, the termination is harsh, unjust or unreasonable: Industrial Relations Act s 170DE (2). It follows from what I have said in relation to the question of valid reason that I consider some of the circumstances of this case to be harsh. To terminate an employee’s employment when they have been performing their duties seemingly without problems for at least six (6) months is in my view harsh. This is particularly so when the length of service overall, (being 14 years),is considered.

Given the nature of the reasons for termination, revolving around the issues of performance and capacity, the respondents should have used the relevant award as a guide to the procedure which was to be followed.
The failure to follow those procedures leads me to the conclusion that the termination is unjust. There is authority for the view that when a governing award containing a disciplinary clause covers the employment, those disciplinary procedures should be followed: Renesse v Melbourne City Mission No VI 645/94, Parkinson JR. Although  Byrne v Australian Airlines  (1995) 131 ALR 422 clearly stands against the proposition that provisions of awards can readily be incorporated into the contract, in this case, the applicant’s contract states that his “salary and condition are in accordance with the Miscellaneous Workers (NT) Award”: (A12). As amended, the award contains disciplinary procedures. The procedures have been described by both witnesses for the applicant and the respondent. Mr Suffolk gave evidence that he would be most surprised if anyone was terminated without following the award procedures.

It was unreasonable to terminate the applicant’s employment when in the six (6) months preceding the termination there had been no complaint about his performance. It was unreasonable to rely on the inability to rehabilitate to truck driving as a reason for dismissal when truck driving is the very position the applicant, on the totality of the evidence, was able to undertake. This mistake may not have occurred had the applicant been given the opportunity to participate in the investigation against him.

Ms Philp has raised in the argument the question concerning the effect of  Byrne v Australian Airlines (1995) 131 ALR 422 in this jurisdiction and whether the Court is obliged to take account of all of the circumstances (including that of the employer) when considering the question harsh just or unreasonable. In a case such as this one, regardless of Byrne v Australian Airlines , the facts have naturally required me to consider  the question of substantive fairness from the point of view of the respondent. Some of the reasons given for the termination are directly linked to the operational requirements of the respondent. The applicability or otherwise of Byrne v Australian Airlines does not in this case alter my decision.  Whether there is any direct application of Byrne v Australian Airlines to this part of the Industrial Relations Act is yet to be dealt by the Court:  Association of Professional Engineers, Scientists and Managers Australia On Behalf Of Philip Edward Cross v Deniliquin Council, (Moore J, unreported, No NI253R of 1994).

Remedy

Reinstatement is the primary remedy. I have had the advantage of extensive argument from both counsel on the point. Reinstatement is opposed by the respondent. The principles which have currently emerged in relation to reinstatement indicate that it would be an error for the Court to characterise reinstatement “impracticable” in this case. The Court does not  possess an unfettered discretion to refuse reinstatement: Gray J, Liddle v Lembke (1994) 127 ALR 342, 366. To refuse reinstatement the circumstances must be genuinely “impracticable” rather than merely “inconvenient” or “difficult” although “impracticable” does not mean “impossible”.

The applicant says he could go back to being on a mowing gang and as such he would just need some help with tasks such as lifting mowers. Alternatively, he says he could work in a gang cleaning the walk-ways and public toilets. He states he could do most of the tasks that he had undertaken previously. Other witnesses in the case support the fact that there are positions available which would be suitable to Mr Lim. Some witnesses are of  a contrary view however their concerns are not such that suggest reinstatement is impracticable. The Court has been told of the four horticulturalist positions. In all the circumstances it does not appear reinstatement is impractical. If the Court did not order reinstatement, I am of the view that the injustice occasioned upon the decision to terminate the applicant would be perpetuated. As I noted previously, the Darwin City Council is one of the largest employers in Darwin. The applicant has participated in many different positions. In ordering reinstatement I am not attempting to direct the respondent on what type of duties, (whether alternative, modified or not), ought to be offered to Mr Lim. That is a matter for the respondent. The order will permit some flexibility in relation to the placement of the applicant. If the respondent finds that the applicant does not perform at a satisfactory level, the respondent will presumably be able to invoke the appropriate procedures. I will also order that the respondent pays, by way of compensation, the remuneration lost by the applicant by virtue of the termination.

ORDERS OF THE COURT:

(1) THAT THE RESPONDENT REINSTATE THE APPLICANT BY APPOINTING THE APPLICANT TO A POSITION ON TERMS AND CONDITIONS NO LESS FAVOURABLE THAN THOSE ON WHICH HE WAS EMPLOYED IMMEDIATELY BEFORE THE TERMINATION.

(2) THE RESPONDENT PAY TO THE EMPLOYEE THE REMUNERATION LOST BY THE EMPLOYEE BECAUSE OF THE TERMINATION. THIS SUM IS TO BE SETTLED BY AGREEMENT. IN THE EVENT THAT THIS SUM IS NOT AGREED BY THE SOLICITORS FOR THE APPLICANT AND THE SOLICITORS FOR THE RESPONDENT THE REMUNERATION LOST WILL BE DETERMINED BY THE COURT. LIBERTY TO APPLY IS GRANTED.

(3) THE ORDER FOR REINSTATEMENT IS TO TAKE EFFECT WITHIN FOURTEEN DAYS.

I CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE COPY OF THE REASONS FOR JUDGMENT OF JUDICIAL REGISTRAR BLOKLAND........ ........ ........ ........ ........ ........ ........ ........

DATE OF JUDGMENT : 29 DECEMBER 1995

Mr D Alderman of counsel  instructed by Elston and Gilchrist, solicitors, appeared for the applicant.

Ms C Philp of Cridlands, solicitors, appeared for the respondent.