James Byrne v CCA Beverages Pty Ltd trading as Coca Cola Bottlers Perth
[1995] IRCA 162
•21 Apr 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 244 of 1994
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:James Byrne
First Applicant
AND:Australian Liquor, Hospitality and Miscellaneous Worker's Union, Miscellaneous Workers Division
Western Australia Branch
Second Applicant
AND:CCA Beverages Pty Ltd trading as Coca Cola Bottlers Perth
Respondent
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1995
REASONS FOR JUDGMENT
Mr Byrne commenced his employment with the respondent as a loader or "swamper" on 7 March 1990. In June 1990 he was reclassified as a fork lift driver, a task he performed without incident until he sustained an injury at work on 23 September 1992. After a short time off work due to his injury the applicant returned to light duties in October 1992 but sustained a further injury as a result of an accident on 28 of October 1992.
Since the second accident in October 1992, he performed one form or another of light duties at the respondent's warehouse. He was involved in a number of rehabilitation programs which involved work trials of a variety of types.
It is not in dispute that the applicant was genuinely injured, that he genuinely sustains a degree of continuing disability, that he has made genuine and prolonged efforts to return to his pre-accident occupation and that the respondent has, for a considerable period, provided him with lighter duties and has genuinely assisted him in his efforts to return to work.
Notwithstanding this apparent atmosphere of mutual respect and goodwill persisting for a period of almost two years, the applicant was dismissed on 30 June 1994, in circumstances of which he complains to this Court. Briefly, the applicant says that his dismissal cannot be demonstrated to have been for a valid reason, and that alternatively the termination was harsh, unjust or unreasonable.
More specifically, the applicant says that he was performing useful light duties for the respondent until a time three weeks prior to his termination, that he then took three weeks leave and was terminated immediately upon his return from leave without any consultation with him as to whether he would be able to perform any or all of the duties of his position, and without consultation as to whether there were available with the respondent alternative jobs which were within his capacity. To demonstrate that there was at least one position shortly to become available with the respondent which would have been within his capacity, he points to the position of "Security Shipping Officer" ("SSO"). The SSO position was one created in around October 1994 by amalgamating a Shipping Officer position previously undertaken by the respondent's employees with a security function which had been undertaken on a contract basis.
The applicant further says that in about March 1994, he had discussions with Mr Petale, the then Employee Relations Manager of the respondent, about Mr Byrne's rehabilitation progress and about a common law claim which he had against the respondent in respect of his injury at work. The applicant says that during the course of that conversation, Mr Petale in effect suggested that the common law action would be unlikely to result in substantial compensation to the applicant, and effectively indicated that were Mr Byrne not to proceed with such an action, another job could be found for him. The applicant says that in reliance upon this conversation he took no further action in relation to any common law claim and that he is now precluded from pursuing it. The respondent denies that such a conversation took place, and says further that either the applicant is not precluded from pursuing such a claim or that in any event, he has not demonstrated a claim would have been of any real value to him.
The respondent says that it dismissed Mr Byrne for the valid reason that it had become clear that he could no longer perform the duties of his position and that he would be unlikely to do so in the foreseeable future. It says that no lighter duties were available which were capable of amounting to a full-time occupation; some lighter work existed around the warehouse, but it provided a welcome break for workers employed on heavy tasks, it provided some form of light duties for other employers who were from time to time injured, and there was not in any event enough in the way of lighter duties to make up one full-time position. The respondent appears not to dispute that it did not consult with Mr Byrne about his proposed termination, as distinct from his rehabilitation program, but it asserts that consultation would have been pointless as there were no duties reasonably open to the applicant in any event.
The medical certificates which are annexed to the affidavit of Mr Beaven-Davis, the present Employee Relations Manager of the respondent, make it clear that since October 1992, the applicant has not been able to perform, on a full-time basis, the duties of the position for which he was employed (that of loader) or to which he was reclassified in 1990 (that of fork lift driver). The report of the Rehabilitation Councillor, Ms Perovic, annexed to the applicant's affidavit and tendered on his behalf, makes it clear that as at 10 June 1994, when she interviewed and assessed Mr Byrne, there were still substantial limitations on his ability to perform those functions, particularly an inability to lift weights greater than 10 - 15 kilograms on a frequent basis, and an inability to sustain most postures, for example sitting, longer than 10 minutes at a time.
Although in cross-examination the names of other employees said to be performing light duty jobs were put to the respondent's witnesses, the respondent did not depart from the position adopted in Mr Petale's affidavit in relation to the availability of lighter duty occupations in the warehouse. I accept that there was not a full-time position available in the warehouse capable of accommodating Mr Byrne's continuing disabilities and that one could not have been created for him without detriment to the interests of other employees who were at the time, or were likely to be in the future, in need of temporary lighter tasks. There was nothing in the medical evidence to indicate that Mr Byrne would, in the foreseeable future, be fit to return to his previous occupation and the respondent had persisted with efforts at rehabilitation for a period of approximately 20 months.
In my view, there was ample evidence to support the respondent's contention that its dismissal of the applicant was for a valid reason, namely his continuing inability to perform the tasks for which he had been employed.
Turning to the question of procedural fairness, the respondent argued that S 170DC, which provides that an employer must not terminate an employee's employment for reasons related to conduct or performance unless the employee has been given an
opportunity to defend himself, does not apply where the termination is on the basis of "capacity" rather than "performance". In my view, performance and capacity are categories which overlap. In this case, for example, the termination which on one view was due to the continuing incapacity of the applicant, was on another view due to the fact that his performance in his work had in fact (and for reasons stemming from his incapacity) fallen far short of that normally expected of loaders or fork lift drivers. His continuing inability to perform those functions was, in practical terms, the reason for his termination. The distinction suggested by the respondent is not one which I would therefore draw in this case, although it is possible that a case of 'pure' capacity could arise in which such distinction might be drawn.
When one turns to consider the reasons for requiring that an employee be given an opportunity to defend himself, they will, except in the most extreme case, generally apply where there is a termination for what can loosely be called "medical reasons" as well as where there is a termination of an employee who is thought able but unwilling to perform to capacity. As was noted in East Lindsey District Council v GE Daubney [1977] IR 181, at 184,
"discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account which, brought to the notice of the employers medical advisers, will cause them to change their opinion. There are many possibilities."
Of course, as the court accepted in that case and as the Western Australian Industrial Commission noted in Batchelar v Skybus [1983] 63 WAIG 2244, at 2245, there will be cases in which consultation is, clearly, wholly pointless and in those cases, it is difficult to see any role for questions of procedural fairness. However, at
least if one takes the view upon which both the applicant and the respondent in this case have proceeded, such cases will be rare.
Both the applicant and the respondent in their submissions accepted that (to quote from para 7 of the respondent's submission of January 1995) the employer in a position similar to that of the respondent has a duty "to make a genuine investigation of existing vacancies within its operations to see if there are any vacancies where the duties of the position are such that the employee could adequately fulfil those functions in the light of the injuries suffered".
The respondent and applicant differed as to how such assessment was to be made. The respondent contended that the employer was entitled to rely upon the employer's assessment as to capacity and that there was no obligation to consult with the employee about alternative positions unless the employer determined that a position "may" be available. The applicant, on the other hand, contended not only that it was necessary to consult with the employee in such a situation, but that it was necessary for the employer to restructure existing positions and to engage the services of independent professional consultants in order to determine how the employee could be assisted to perform potentially suitable functions.
The duties contended for by the applicant appear to me to be very onerous and to go well beyond the scope of procedural fairness and beyond the notion of "a fair go" (Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 126 ALR 233 at 234). However, the respondents contention that the employer is not required to consult with the employee about alternative occupations seems illogical. If it is fair and necessary for the employer to consider alternatives, it seems unreasonable that the employer should be permitted to do so without input from the person most directly concerned and who (in most cases) is also the person who has the best idea of what functions he will be able to perform over the course of a working day. An employer
who fails to consult an employee about alternative positions will, by and large, be making a decision without highly relevant and readily available information and a conclusion based on decision making without such consultation will often be so unreliable as to be unreasonable.
It is clear that the respondent did not consult with the applicant about alternative employment. In the affidavit of Mr Beaven-Davis, (para 18) he asserts that "no suitable positions existed for the applicant but that this avenue was not explored any further at that point because medical reports still indicated there was some hope for a full recovery". This is understood against the background of the respondent's evidence that it was not until a medical certificate dated 16 May 1994 and indicating that the applicant should be given a full-time light duties position, that the respondent realised that the applicant was unlikely to be returning to his former occupation in the foreseeable future.
Until that date, any consideration of alternative positions (which seems to have been limited) must have been coloured by the view that the applicant would in any event return to his former occupation. The applicant himself gave evidence that he did not turn his mind to the question of alternative occupation because so far as he was concerned both his and the respondent's efforts were still focussed on the question of his possible return to his former position. Once the medical certificate of 16 May had been received, a number of the respondent's witnesses gave evidence that they discussed the applicant's position amongst themselves but did not undertake consultation with him.
There was in the respondent's evidence some suggestion that the applicant was not surprised by the termination of his employment and that he had for some time appreciated that his job was at risk due to his inability to perform a full range of functions. The evidence revolves around a conversation which took place between
Mr Balmer, Mr Beaven-Davis and the applicant on 30 June 1994 in which the applicant was said to have indicated that he was surprised that the respondent had not held a similar meeting (that is one to discuss his inability to return to work and the termination of his employment) "much sooner". The applicant, in evidence which I accept, said that he had expressed concern that such a meeting had not been held sooner not because he expected dismissal, but because had he been aware that his job was at risk, he would not have proceeded on 3 weeks leave.
Even if there is no duty upon the employer to consult with the employee as to alternative positions, both parties in this case seem to accept that the employer is required at least to assess whether alternative positions are available. The respondent's evidence, based on the enquires of its witnesses as at the date of trial, was that there was no alternative position, and that the Shipping Security Officer positions were unsuitable for a person such as the applicant. However, at the time the decision was made to terminate the applicants employment, the SSO position had not been specifically considered.
Mr Balmer's evidence was that he looked at alternative employment questions only "from a warehouse point of view" and not in terms of the respondent's broader operations. Mr Beaven-Davis said he relied upon Mr Balmer's advice. He was not, when cross-examined, particularly familiar with the duties of the SSO position and seems never to have been in a position to make a realistic evaluation of whether the position would have been suitable for the applicant.
The applicant in his evidence, asserted that he would have been able to perform the duties of that position, because he was familiar with both the shipping officers and the security officers whose tasks were amalgamated to make the new position. I have some doubt as to the correctness of this belief, although I have no doubt that it was genuinely held by the applicant. The applicant appeared to overstate his
physical capacities somewhat when one compared his evidence with the medical reports, and it is understandable if, in his eagerness to be able to return to work, he somewhat overestimated his abilities or underestimated the duties of the SSO position. However, it is clear that the SSO duties are, while qualitatively similar, quantitatively substantially lighter than the duties of both the loader and fork lift driver. There is at least a possibility that the applicant would have been able to perform the duties of that position; more importantly, there is at least a possibility that a thorough investigation of the duties of that position, and a comparison with the duties actually performed by the applicant in the months before his dismissal, might have resulted in the applicant being offered one of the SSO positions, at least on a trial basis.
Because of the views that I have reached about the failure to consider the SSO position, and the failure to consult with the applicant about alternative positions, I do not find it necessary to deal in detail with the allegations concerning the conversation with the applicant about his common law claim and its relevance to his return to work. If it had been necessary to do so, although I have found the applicant an honest and convincing witness, I am not certain that the conversation took place precisely as he recounted. I find that Mr Petale led the applicant to believe, during early 1994, that his job was secure or that at least some position could be found for him with the respondent. The letter of Heather Childs, dated 31 January 1994, annexed to Mr Byrne's affidavit, shows that Mr Petale seems to have left Heather Childs with a similar impression. I also accept that there may have been some discussion of the common law claim and that the applicant may have been left with the impression that it was financially unnecessary for him to pursue that claim because of the security of his occupation.
If there is in fact a valid reason for dismissing an employee, I do not believe that the termination of the employee's employment becomes unfair merely because the
employee has been led to think that his job is secure. However, where an employee acts on such assurances, to the employee's detriment and to the employer's knowledge, it may be unfair for the employer to terminate the employee's employment, in the absence of any relevant change in circumstances. I am unable to find however that there was anything that could be described as a "bargain" struck here and nor is it necessary for me to do so.
Having found that the termination of the applicant's employment contravened Division 3 of part VIA of the Act, I turn to the question of remedy.
It appears to me that reinstatement is impracticable. The applicant clearly cannot perform the duties of his former occupation. What he has lost in effect is the opportunity to demonstrate that he may have been able to fulfil the duties of another position. It is by no means clear that he would have been able to fulfil the duties of that other position on a continuing basis.
In awarding compensation, the respondent submits that I should have regard to the fact that Mr Byrne's actual remuneration prior to his dismissal was at the rate of $579.79 per week and that he has been receiving from the time of his dismissal to date workers compensation in the amount of $468.05, and submits that the greatest amount of compensation which should be awarded is the difference between those figures, multiplied by 26. The applicant submits that the questions of self-esteem, future financial security, and future employment prospects are as relevant as immediate financial detriment.
I do not agree that the matters referred to by the applicant are as important as immediate financial detriment. On the other hand, when attempting to estimate what it is that the applicant has lost by reason of his dismissal, I consider that I am entitled to take into account not only his loss of income, but also the loss of security of
income, an asset which, although intangible, can readily be understood as being of considerable significance. Taking both factors into account so far as I can, I order the respondent to pay the applicant compensation in the sum of $4,000.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Wheeler.
Associate:
Date:
Representative for the Applicant: Ms D. Blaskett
Counsel for the Respondent: Mr J.P. Longo
Solicitors for the Respondent: Parker & Parker
Date of Hearing: 15 and 30 November, 13 December 1994
Date of Judgment: 21 April 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 244 of 1994
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:James Byrne
First Applicant
AND:Australian Liquor, Hospitality and Miscellaneous Worker's Union, Miscellaneous Workers Division
Western Australia Branch
Second Applicant
AND:CCA Beverages Pty Ltd trading as Coca Cola Bottlers Perth
Respondent
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The Respondent pay to the Applicant compensation in the sum of $4,000 within 14 days of the date of this order.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - incapacity due to injury - whether valid reason for terminating employment - whether procedural fairness - consideration of alternative positions - need for consultation - compensation.
INDUSTRIAL RELATIONS ACT, Ss 170DC, 170EA
East Lindsey District Council v G E Daubney (1977) IR 181
Batchelar v Skybus (1983) 63 WAIG 2244
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
JAMES BYRNE v CCA BEVERAGES PTY LTD trading as Coca Cola Bottlers Perth
No. WA 244 of 1994
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1994
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