Jerzy Slezak v Pilkington (Aust) Operations Ltd - [1995] IRCA 638

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Rehabilitation of injured worker - Normal duties - Modified Duties - Requirement that worker comply with timetable involving full time process work - Worker unfit for full range of process work on factory floor - Onus of proving reason for termination - Reinstatement

Industrial Relations Act 1988, S170DB, S170DE, S170DF, S170EA, S170EE

CASES:

Johns v Gunns Limited IRCA (unreported) 18 May 1995
Selvachandran v Peteron Plastics Pty Ltd IRCA (unreported) 7 July 1995
Heidt v Chrysler Australia Limited (1976) 26 FLR 257
Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439

JERZY SLEZAK v PILKINGTON (AUST) OPERATIONS LTD

No. VI-3531/95

Before:          Ryan JR
Place:            Melbourne
Date:              1 December 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-3531/95

B E T W E E N: JERZY SLEZAK
Applicant

AND:PILKINGTON (AUST) OPERATIONS LTD
Respondent

RYAN JR

MINUTES OF ORDER

1 DECEMBER 1995

THE COURT ORDERS THAT:

(1)The employer reinstate the employee Jerzy Slezak to either the position in which he was employed immediately before termination or to another position on terms and conditions no less favourable to those on which the employee was employed immediately before termination.

(2)All steps necessary are to be taken to ensure the continuity of the employee’s employment from the date of termination.

(3)The employer 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.

(4)The order for reinstatement of the applicant is effective from Friday 1 December 1995.

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
VICTORIA DISTRICT REGISTRY Matter No VI-3531/95

B E T W E E N: JERZY SLEZAK
Applicant

AND: PILKINGTON (AUST) OPERATIONS LTD
Respondent

COURT: RYAN JR

PLACE: MELBOURNE

DATE: 1 DECEMBER 1995

REASONS FOR JUDGMENT

THE APPLICATION

On 27 June 1995 solicitors acting for Jerzy Slezak, the applicant, lodged a claim of unlawful termination of employment. The applicant sought reinstatement and compensation and contended that he was dismissed without any notice or warning and without a valid reason and because of his temporary absence from work because of illness or injury.

THE RESPONSE

The employer denies unlawful termination of employment and denies that the employment of the applicant was terminated because of his temporary absence from work because of illness or injury.

The respondent asserts that:

the applicant failed to comply with reasonable directions to return to normal duties under a structured rehabilitation program

the company was unable to provide suitable alternative duties and had taken all steps reasonable and practicable to return the applicant to normal duties in the workplace

the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 638
Decision Date: 01 December 1995

CaseChat Overview and Summary

In the case of Jerzy Slezak v Pilkington (Aust) Operations Ltd, the dispute centred on the termination of the plaintiff's employment and whether it was unlawful. Slezak, who had suffered an injury at work, was unable to perform the full range of duties associated with his position. Pilkington, his employer, terminated his employment on the basis that he could not comply with a timetable that required full-time process work on the factory floor. The case was heard in the Federal Court of Australia.

The primary legal issue was whether the employer had a valid reason for terminating Slezak's employment. Specifically, the court needed to determine whether the employer had discharged the onus of proving that the reason for the termination was not unlawful. The court also needed to consider whether the employer's requirement for Slezak to undertake full-time process work on the factory floor was reasonable, given his injury and inability to perform all aspects of the job. Another issue was whether the employer had taken reasonable steps to rehabilitate Slezak and provide him with modified duties that he could perform.

The court found that the employer had not discharged the onus of proving that the reason for the termination was not unlawful. The court held that Pilkington had not taken reasonable steps to rehabilitate Slezak and provide him with modified duties that he could perform. The court found that the employer's requirement for Slezak to undertake full-time process work on the factory floor was unreasonable, given his injury and inability to perform all aspects of the job. The court concluded that the termination of Slezak's employment was unlawful and ordered that he be reinstated to his position or compensated in lieu of reinstatement. The court also ordered Pilkington to pay Slezak's costs.

Orders