Jason Scott Johns and Gunns Limited

[1994] IRCA 169

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - Temporary absence from work because of illness or injury - Unsafe work practice - Late attendance at work - Unsatisfactory reason for late attendance

Industrial Relations Act 1988, S170DC, S170DE, S170DF, S170EA

JASON SCOTT JOHNS AND GUNNS LIMITED

No. TI 148/1994

Before:              Ryan JR

Place:                 Hobart

Date                  16 December 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
  Matter No TI 148 of 1994

B E T W E E N:    JASON SCOTT JOHNS
  Applicant

AND:    GUNNS LIMITED

Respondent

RYAN JR

MINUTES OF ORDER

16 December 1994

THE COURT ORDERS THAT:

The application is dismissed.

NOTE:  Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
  Matter No TI 148 of 1994

B E T W E E N:    JASON SCOTT JOHNS
  Applicant

AND:    GUNNS LIMITED

Respondent

COURT:              RYAN JR

PLACE:               HOBART

DATE:                  16 DECEMBER 1994

JUDGMENT EX TEMPORE - REVISED FROM THE TRANSCRIPT

This is an application under section 170EA of the Industrial Relations Act 1988. The applicant, seeks the usual remedies.

Mr McTaggart appeared for the applicant and Mr Tree for the respondent.

The applicant, in his affidavit sworn today, indicates that he was employed with the respondent initially as a labourer.  In his evidence today it is fairly clear that he was employed as a machinist in a temporary capacity from 1989 and in a permanent capacity from 1991.  The employment was terminated on 2 August 1994.

Let me start by dealing with section 170DF(1)(a) which states that:

An employer must not terminate an employee's employment for the reason of temporary absence from work because of illness or injury or for reasons including temporary absence from work because of illness of injury.

The applicant in paragraph 2(f) of his affidavit states:

I was advised on 2 August 2994 that I was a liability for the company due to a back injury and I was to pack my bags and leave.

In his oral evidence today the applicant alleges that at the meeting on the day of termination he was in effect told that he was not doing enough exercises and he was costing a fair bit of money.  He also gave oral evidence that he had spoken to John Cumming and Ian or Ern Wright prior to 2 August and both said that the applicant was a bit of a worry with a back injury and that they had, by way of example, indicated that it was difficult to determine whether back injuries were work-related or a bit of a “try-on”.  The applicant, however, made it clear they were using that as an example and not accusing him of a try-on.

If the respondent did make the statement to the effect of that outlined in paragraph 2(f) that would be perilously close to termination for a prohibited reason under section 170DF(1)(a).  If the respondent made statements to the effect of those alleged by the applicant in oral evidence today, that would not confirm termination for a prohibited reason but it might suggest a climate in which termination for a prohibited reason was an operating factor.  Let me say, however, that I do not accept that the respondent, through its managers, made a statement to the effect of that in paragraph 2(f).

I will come to the credibility of the applicant as a witness later but I do note, as Mr Tree pointed out, that Mr McTaggart did not cross-examine either respondent witness as to the issue of termination for a prohibited reason.  What is clear and conceded by both Mr McTaggart and Mr Tree is that on 2 August the applicant's employment was terminated and that the reasons listed in paragraph 4 of the respondent's affidavit of 1 September were outlined to the applicant. 

Those reasons are stated to be:

(a)that his failure to undertake medically recommended rehabilitation and conservative treatment exercises were unsatisfactory. 

(b) that his history of continued injury at work arising after his failure to undertake medically recommended rehabilitation and treatment exercises reinforced the fact that his failure to undertake those exercises was unsatisfactory.

(c) that his admission that he failed to attend for swimming exercises despite continuous medical recommendation and despite having taken time off from his employment with the respondent on the pretence of attending such exercises was unsatisfactory. 

(d) that his unsafe work practice on 18 May 1994, for which he was formally warned in writing was unsatisfactory.

(e) that his failure to attend his work with the respondent on time on 24 July 1994 was unsatisfactory.

(f) that his reason for failing to attend his work with the respondent on time on 24 July 1994 “watching the football” was unsatisfactory.

I have no doubt that an employee with the work-related injury record of the applicant is a subject of frustration and cost to an employer but I find that there is no evidence before the court that the applicant failed to undertake recommended rehabilitation exercises, especially those described as “broomstick” exercises.  I am not saying there is overwhelming evidence of exercises diligently and consistently undertaken but there is just no evidence of a failure to undertake such exercises.

Furthermore, while the court finds the applicant's evidence on his attempts to attend for swimming exercises inconsistent and confusing, no evidence at all was led by the respondent to justify the allegation in paragraph 4(c) that time off was taken on the pretence of attending such exercises.  Indeed, there is no evidence before the court that the applicant can swim.

The court finds that these three reasons (a), (b) and (c) (as part of a justification for termination), are not valid reasons.

The unsafe work practice on 18 May and the written warning, (exhibit R1 of 20 May), signed by a union representative and the foreman and the applicant, could have justified termination in its own right, but the respondent did not take that action.

However, the respondent was perfectly entitled to take this incident into account when a decision was being made which led to termination.  The applicant himself acknowledges that he admitted at the meeting or interview on 2 August that he had adopted an unsafe practice.  Having said that, there is no evidence of continued unsafe work practices.

The decision to terminate finally resulted from the applicant's failure to attend work on time on 24 July, and the court notes that the applicant did not attend at all until contacted by telephone by Jason Upton.  The applicant concedes that, he was still at home when he took Upton’s call although he claims he was virtually “on the way” to work and had to go back inside to answer the telephone.

The court is not going to put any weight on Upton's diary note of that date, given that he was not available to give evidence and have his evidence tested.  However, in his own evidence, the applicant conceded that he was late because he was watching the football.  I have carefully observed the applicant in the box.  Unlike Mr Tree, I make no adverse inference from constant smiling.  It is as likely to be as much a result of nervousness as anything else.  But, by and large, when faced in this case with conflicts of evidence between the applicant and the respondent witnesses Wheelan and Wright, I prefer the evidence of the latter. 

There is not a lot to go on in terms of valid grounds for termination.  There is a serious safety breach which did not lead to termination at the time and then what is described as "the straw that broke the camel's back" the failure to attend work on time on 24 July.  There is also the quite unacceptable reason openly conceded as the reason for initial non-attendance.  In many circumstances a serious safety breach which did not immediately result in termination and no further breaches, coupled with a non-attendance on time and then a late attendance with a thoroughly unacceptable reason for lateness, while valid grounds for termination, would be judged by this court as effecting a harsh termination, attracting remedy and usually reinstatement.

All I can say after careful assessment is that this is not such a case.  In all the circumstances I find termination for late attendance on 24 July, termination effected on the first available day the applicant was at work thereafter, and termination for late attendance attributed to watching football, coupled with the serious safety breach of 18 May, valid grounds for termination.  In the circumstances of this case, and I emphasise in the circumstances of this case, I find that the termination was not harsh, unjust or unreasonable.  Therefore, the application is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              

Date  :              

Appearances:
Solicitor for the Applicant                 :              Mr Bruce McTaggart

Solicitor for the Respondent             :              Mr Tree

Date of Hearing  :              16 December 1994
Judgment  :              16 December 1994