James Patterson and Austomotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Newcrest Mining
[1995] IRCA 674
•21 December 1994
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether reinstatement of employee is impracticable - meaning of ‘impracticable’
Industrial Relations Act 1988, ss 170DF, 170EA, 170EE
Jamie Klingenberg & Transport Workers’ Union of Australia v I.R. Cootes Pty Ltd, VI 2421R of 1994, 24 August 1995, (as yet unreported), Marshall J, 12
Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199, 210
Liddell v Lembke (t/as Cheryl’s Unisex Salon) (1994) 127 ALR 342, 360
Mary Abbott-Etherington v Houghton Motors Pty Limited, WI 0429R of 1994, 28 September 1995, (as yet unreported), Marshall J, 9-10
No. WI 0595R of 1994
JAMES PATTERSON & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v NEWCREST MINING LTD
CORAM: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 21 December 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA )
)
DISTRICT REGISTRY ) No WI 0595R of 1994
BETWEEN: JAMES PATTERSON
First Applicant
AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
Second Applicant
AND: NEWCREST MINING LTD
Respondent
CORAM: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 21 December 1995
ORDER
THE COURT ORDERS THAT:
The order of the Court constituted by Judicial Registrar Walker be set aside.
It is declared that the respondent terminated the employment of the first applicant in breach of s170DF(1)(f) Industrial Relations Act 1988.
Of the sum of $11,911.17 paid into Court pursuant to the order of his Honour Justice Lee made on 6 October 1995, $9,555.96 be released to the first applicant.
The balance of the moneys paid into Court, being $2,355.21 be released to the respondent.
If any interest has been accrued on the sum of $11,911.17 paid into Court, such amount of interest shall be paid to the first applicant, as to 80% thereof, and to the respondent as to 20% thereof.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA )
)
DISTRICT REGISTRY ) No WI 0595R of 1994
BETWEEN: JAMES PATTERSON
First Applicant
AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
Second Applicant
AND: NEWCREST MINING LTD
Respondent
CORAM: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 21 December 1995
REASONS FOR JUDGMENT
BACKGROUND
On 2 December 1994 the first applicant, Mr Patterson, made application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) for a remedy in respect of the termination of his employment by the respondent on 28 November 1994. On the day of the termination of his employment Mr Patterson received a letter from Mr Ellery, the Manager Support Services of the respondent at the Telfer Gold Mine. The letter was in the following terms:
“Dear Jim,
This letter is to confirm our discussion on the 28th November 1994. During which we discussed the fact we would now have to terminate your employment effective from 28th November 1994.
As per our previous discussion on the 28th October 1994 the reason for your termination is that you are no longer capable of fulfilling your work obligations as a Trades Assistant in the Light Vehicle workshops at Telfer Gold Mine. This is due to your medical problems which have made it impossible for you to carry out all the duties required of your position.
The specialist report and work place study conducted by Western Rehabilitation to assess the physical demands of your duties as a trades assistant are conclusive in that due to the degenerative changes in your lumber spine you cannot now, nor with ongoing medical treatment be able to fulfil your duties in the future.
Newcrest have tried to find alternative work for you, this was not possible. Your termination payment will be made up and paid into your bank account.
The statement attached to this letter will explain your termination payment and if you have any queries on this please contact our pay office.
Yours sincerely,
Chris Ellery
Manager Support Services
Telfer Gold Mine”
On 17 January 1995, Deputy District Registrar Richardson referred the application to the Australian Industrial Relations Commission (“the Commission”) for conciliation. Commissioner Laing certified on 27 April 1995 that the Commission had been unable to settle the matter by conciliation.
The application was heard by Judicial Registrar Walker on 4, 5 and 6 September 1995. On 6 September 1995 the Judicial Registrar delivered ex tempore reasons for judgment and ordered that the respondent reinstate Mr Patterson and pay him remuneration lost because of the termination of his employment. The Judicial Registrar found that Mr Patterson’s employment had been terminated for a prohibited reason in breach of s170DF(1)(f) of the Act, namely because of a physical disability. The Judicial Registrar also found that that reason was not based on the inherent requirements of the particular position formerly occupied by Mr Patterson. Accordingly the respondent had not made out the defence provided by s170DF(2) of the Act.
On 20 September 1995 the respondent sought to review the decision of the Judicial Registrar and named the second applicant as a party to the review. The review was heard by the Court on 12 and 13 December 1995. Mr Melville, a solicitor, appeared for Mr Patterson. Mr Keogh, an industrial officer, appeared for the second applicant. Mr Power, of counsel, appeared for the respondent. At the commencement of the review, Mr Keogh was granted leave to withdraw from the proceedings and the second applicant took no further part in the proceedings. Shortly thereafter the Court was informed by the remaining parties that there was no issue in the review regarding the finding of the Judicial Registrar that the respondent had breached s170DF(1)(f) of the Act. The only issue in the review was the nature of the remedy that the Court should order as a result of the relevant breach of the Act by the respondent.
Mr Power contended that the Court should find that it is impracticable to reinstate Mr Patterson and that the appropriate remedy is compensation by way of six months wages. In that regard Mr Power referred to the fact that Lee J had made an interim order on 6 October 1995 requiring the respondent to pay to Mr Patterson remuneration for a period of six months. Six months compensation is the maximum allowable amount which the Court is able to award to an employee such as Mr Patterson whose terms and conditions of employment were award based. See s170EE(3)(a) of the Act. The amount paid pursuant to the order of Lee J was an amount net of taxation. Consistently with the Court’s views regarding payment of amounts of compensation, it was conceded by Mr Power that in the event that the Court agrees with his submissions regarding the impracticability of reinstatement, the Court should order that the respondent pay Mr Patterson the difference between the gross amount representing six months wages and the net amount which he has already received. See Jamie Klingenberg & Transport Workers’ Union of Australia v I.R. Cootes Pty Ltd, VI 2421R of 1994, 24 August 1995, (as yet unreported), Marshall J, at 12.
It was common ground that should the Court order reinstatement, remuneration lost should be calculated in accordance with the approach identified in the orders of the Court in Mary Abbott-Etherington v Houghton Motors Pty Limited (“Abbott-Etherington”), WI 0429R of 1994, 28 September 1995, (as yet unreported), Marshall J.
SUBMISSIONS OF THE RESPONDENT
Mr Power contended that it would be impracticable to reinstate Mr Patterson because the positions with the respondent for which Mr Patterson has the necessary skills to perform entail a real and significant risk of serious injury befalling him due to his degenerative back condition. Mr Power relied in particular upon the evidence of Dr Connaughton who was firmly of the view that Mr Patterson risked serious injury if he was reinstated to the job held by him at the time of the termination of his employment. Dr Connaughton also gave evidence that there was no position with the respondent, for which Mr Patterson was suited, that the first applicant could work in without risking serious injury. Mr Power also relied upon the evidence of Mr Griffiths, an orthopaedic surgeon, who formed the same view as Dr Connaughton. Mr Power contended that the medical evidence was all one way and that there was no evidence which suggested that the risk of Mr Patterson being seriously injured if reinstated was not a real or significant one. Counsel also referred the Court to the various occupations which Mr Patterson contended he was able to engage in with the respondent and submitted that he was either unqualified for such positions or unable to perform them without a significant and real risk of his incurring a serious injury.
SUBMISSIONS OF THE FIRST APPLICANT
Mr Melville contended that there was no reason why Mr Patterson could not return to his former position as a trades assistant working in the respondent’s light vehicle workshop. Mr Melville contended that all workers were at risk of injury and that whether a serious injury would occur is a matter of guesswork. He referred to the evidence that Mr Patterson is very fit and currently not experiencing any back pain. Mr Melville raised concerns about Dr Connaughton’s reliance, in part, upon a work site report of a Dr Carr in reaching his conclusions about Mr Patterson’s fitness to return to his former duties. It was suggested that Dr Carr had an incomplete understanding of the nature of the duties performed by Mr Patterson. Mr Melville took the Court to various duty statements regarding other positions with the respondent and submitted that Mr Patterson was capable of occupying most of those positions.
In summary, Mr Melville submitted that the risk of Mr Patterson being injured in the future was irrelevant to the issue of whether or not it is impracticable to reinstate Mr Patterson. If such risk was relevant it was submitted that it did not, in the circumstances, render reinstatement impracticable. It was then said that if reinstatement to the former position held by the first applicant was impracticable, then alternative duties could be given to him or a job created for him.
APPROACH IN THE CIRCUMSTANCES TO
THE ISSUE OF IMPRACTICABILITY
Section 170EE(2) of the Act provides as follows:-
“170EE (2) If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.”
In Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199, 210, Wilcox CJ said:-
“... The word ‘impracticable’ requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be ‘impracticable’ to order reinstatement, notwithstanding that the job remains available.”
Notwithstanding some uncertainty expressed by me in Abbott-Etherington at 9-10, on reflection I now consider the better view to be that the Chief Justice intended that the words “unacceptable problems or embarrassments” be read distributively such that unacceptable embarrassments rather than mere embarrassments were being referred to by his Honour.
It is also clear from Liddell v Lembke (t/as Cheryl’s Unisex Salon) (1994) 127 ALR 342, 360 that reinstatement will not be impracticable where it is inconvenient or difficult without causing an unacceptable problem or unacceptable embarrassment.
IS IT IMPRACTICABLE TO REINSTATE
MR PATTERSON TO HIS FORMER POSITION?
The evidence of Dr Connaughton and Mr Griffiths strongly indicated that if Mr Patterson was reinstated to his former position as a trades assistant in the light vehicle workshop of the respondent he would be at serious risk of aggravating his existing degenerative back condition. Dr Connaughton and Mr Griffiths were unshaken by cross-examination regarding their expert opinions. I was particularly impressed by the evidence of Dr Connaughton who had a good working knowledge of the range of duties required of the occupiers of all the jobs for which it was contended by Mr Melville that Mr Patterson could be engaged in, including his former position.
The evidence before the Judicial Registrar was an exhibit in the review and thus formed part of the evidence on the review. Dr Connaughton gave evidence before the Judicial Registrar of having formed a view about the fitness for work of the first applicant based in part upon a report of Dr Carr. Even if one accepts for the purposes of the argument, that Dr Carr’s report may not have been based on an adequate investigation of Mr Patterson’s actual job requirements, it cannot be overlooked that Dr Connaughton’s evidence dealt with developments since the hearing before the Judicial Registrar including a report from Mr Griffiths that Mr Patterson was not fit on medical grounds to return to normal duties as a trades assistant in the light vehicle workshop. The first applicant contended to the contrary, stating that he is now very fit. It was common ground that he is now very fit. However, he has not worked since the termination of his employment and has not exposed himself to any risk of further aggravation of his condition.
Mr Patterson demonstrated to the Court how he was able to recline in performing his work as a trades assistant by placing weight upon his arm and knee thus relieving some of the pressure on his back. Dr Connaughton’s expert opinion was that the adopting of such a posture by Mr Patterson did not lessen the concerns held by him for Mr Patterson’s safety. Dr Connaughton’s view was that prolonged periods of bending, lifting or twisting or prolonged periods spent in awkward positions enhanced the prospect of damage to Mr Patterson’s spine.
I reject the submission of Mr Melville that it is irrelevant to the question as to whether or not reinstatement is impracticable that there is a risk of serious injury to Mr Patterson upon his return to his former position. In my view the Court would not be approaching the issue of the practicability of reinstatement in a commonsense way if it adopted that approach. I am most reluctant to order the reinstatement of an employee to her or his former position if so doing involved a real and substantial risk of the employee being seriously injured upon her or his return to the position occupied prior to the termination of employment. An order of reinstatement in such circumstances would create unacceptable problems. Although I have much sympathy for Mr Patterson, I agree with Mr Power that in this case the medical evidence is all one way. In my view it would be irresponsible of the Court to send Mr Patterson back to work in his old position given the nature of the medical evidence before it.
I therefore find that it is impracticable to order that Mr Patterson be reinstated to the position in which he was employed immediately before the termination.
IS IT IMPRACTICABLE TO REINSTATE MR PATTERSON
TO ANOTHER POSITION ON TERMS AND CONDITIONS
NOT LESS FAVOURABLE THAN HE PREVIOUSLY ENJOYED?
Mr Patterson expressed a preference to be reinstated to his former position but maintained that he was able to perform the functions of a range of other positions. However he preferred outdoor work although having worked in an office many years ago as a surveyor’s assistant. I have formed the view for the reasons expressed below that it is impracticable to reinstate Mr Patterson to any such position.
There was evidence before the Court that the occupants of every such position were required to do some heavy lifting with the exception of the purely clerical and/or computer based positions for which, the evidence revealed, Mr Patterson was unsuited or lacked sufficient relevant training and in respect of which he preferred not to be engaged in. Additionally, one job, known as the “pitram operator” position, was about to be abolished.
By the end of January 1996 the entire operation at Telfer will be conducted on the basis of a fly in/fly out system. Employees will work for 14 days then have 7 days off. The days off period will not be spent in Telfer but away from the site, predominantly in Perth. The continuous shift work associated with the new work arrangements will place greater physical demands upon the employees. A return to work in such an environment may place Mr Patterson at even greater risk.
It was suggested by Mr Melville that Mr Patterson may be employed in a “rehabilitation position” which may be used to assist an injured worker in recovery. However, the evidence showed that this position was used as a purely temporary arrangement to predominantly assist workers with leg injuries. The position is also available to train mill operators in aspects of their work such as the mixing of chemicals.
Mr Ellery gave evidence of the possibility of creating a special job for Mr Patterson, taking various aspects of work from other existing jobs. The evidence, which was not seriously put in issue, revealed that even such a “fabricated position” would not be a sustainable full time job. It would not be the sort of position which is intended to be covered by s170EE(1)(b) of the Act.
Therefore, in the circumstances, it is my view that it is impracticable to appoint Mr Patterson to any other positions with the respondent. Six months compensation is the appropriate remedy in accordance with the concession of the respondent referred to above.
FORM OF RELIEF
On 10 October 1995, pursuant to the order of Lee J of 6 October 1995, the respondent paid the following amounts:-
$20,014.74 to Mr Patterson, representing net remuneration lost for six months.
$11,911.17 paid into Court.
The gross sum payable for six months compensation is $29,570.70. It is appropriate in the circumstances to order that $9.555.96 (being the difference between $29,570.70 and $20,014.74) be paid to Mr Patterson from the monies paid into Court and that the balance be remitted to the respondent. If any interest has been earned on the amount held by the Court it should be distributed proportionately having regard to the amounts paid out to each relevant party.
ORDERS
I make the following orders:-
The order of the Court constituted by Judicial Registrar Walker be set aside.
It is declared that the respondent terminated the employment of the first applicant in breach of s170DF(1)(f) Industrial Relations Act 1988.
Of the sum of $11,911.17 paid into Court pursuant to the order of his Honour Justice Lee made on 6 October 1995, $9,555.96 be released to the first applicant.
The balance of the moneys paid into Court, being $2,355.21 be released to the respondent.
If any interest has been accrued on the sum of $11,911.17 paid into Court, such amount of interest shall be paid to the first applicant, as to 80% thereof, and to the respondent as to 20% thereof.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 21 December 1995
Counsel for the Applicant: A.J. Power
Solicitor for the Applicant: Jackson McDonald
Solicitor for the Respondent: S. Melville
Solicitors for the Respondent: Gibson and Gibson
Dates of hearing: 12 and 13 December 1995
Date of judgment: 21 December 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
No. WI 0595R of 1994
B E T W E E N :
JAMES PATTERSON
First Applicant
AUTOMOTIVE, FOOD,
METALS, ENGINEERING,
PRINTING AND KINDRED
INDUSTRIES UNION
Second Applicant
A N D NEWCREST MINING LTD
Respondent
CORAM: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 21 December 1995
CORRIGENDA
There is a typographical error at page 11 of the reasons for judgment of his Honour Justice Marshall. The error has no bearing on the final decision.
In the last line of the first paragraph on page 11 DELETE the words “s170EE(1)(b)” and INSERT “s170EE(1)(a)(ii)”.
Peteris Ginters
Associate to Justice Marshall
DATE: 13 March, 1996
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