Kane Simmons and AWU-FIME v Paradise Kitchen Cabinets

[1995] IRCA 436

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - INJURY, temporary absence because of - REINSTATEMENT - COMPENSATION

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

CASES:

R v The Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-operative Ltd [1977] 44SAIR 1202;
Corkrey v General Motors Holden Ltd [1986] SAIR 351, 1986 AILR 439; Hemmings and Others v CPS Credit Union [1991] 58 SAIR 421; 1991 AILR 323;
Cheesman v Kinhill Engineers Pty Ltd [1992] 59 SAIR 168;
White v Douglas Diagnostic [1993] 60 SAIR 142;
McLean v David Jones (Australia) Pty Ltd [1993] AILR 98;
Needham v Shepparton Preserving Company Limited [1991] AILR 395

Nicolson v Heaven and Earth Gallery [1994] 1 IRCR 199
Jason Scott Johns v Gunns Limited, (unreported) IRCA TI148R of 1994.

KANE SIMMONS & AWU-FIME v PARADISE KITCHEN CABINETS

No. VI-1786/95

Before:          Ryan JR
Place:            Melbourne
Date:              17 August 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI-1786/95

B E T W E E N:                  KANE SIMMONS    

Applicant

AND:PARADISE KITCHEN CABINETS

Respondent

RYAN JR

MINUTES OF ORDER

17 AUGUST 1995

THE COURT ORDERS THAT:

The respondent pay to the applicant compensation in the sum of $3,500.
$1500 of that compensation to be paid to the applicant within 21 days;
$1000 to be paid one month thereafter; and a further $1000 one month thereafter again.

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-1786/95

B E T W E E N:                   KANE SIMMONS & AWU FIME
  Applicant

AND:               PARADISE KITCHEN CABINETS
  Respondent

COURT:       RYAN JR

PLACE:        MELBOURNE

DATE:           17 AUGUST 1995

EX TEMPORE JUDGMENT

(Revised from transcript)

PRELIMINARY PROCEEDINGS

On 28 February 1995, the applicant lodged a claim of unlawful termination of employment, and, at that stage, sought as remedy reinstatement of his employment.  The application was made on his behalf by Mr Geoffrey Sutton, acting Secretary (at that stage) of the Victorian Building Construction and Joining Sub-Branch of the AWU.  On 8 May 1995, Mr Sutton served the application on Mr John Dancevski at the respondent's factory at 10 James Court, Tottenham.

On 12 May solicitors, then acting for the respondent, filed a notice of appearance.  On 16 May the District Registrar made an order in chambers referring the matter for conciliation by the Australian Industrial Relations Commission.  On 19 June Commissioner Eames issues a certificate pursuant to S170ED(2) (Industrial Relations Act) that he had been unable to settle the matter by conciliation.  On 18 July, a directions hearing was held.  Mr Sutton appeared for the applicant. There was no appearance for the respondent and the matter was, at that stage listed as an uncontested matter for 21 July.

However, it is obvious from the court file that on 5 July the registrar had received a letter of 4 July from solicitors who had been acting for the respondent.  They referred to an earlier letter of 12 May, a copy of which I have not been able to locate on the file, but, in any event, they advised that they were no longer representing the employer and that the employer was representing itself. By letter dated 6 July, the listings co-ordinator advised the respondent, at its Tottenham address, of the directions hearing listed for 18 July.

On 21 July, Judicial Registrar Chancellor had before him Mr Sutton for the applicant and Mr Zlatko Trajcevski, a partner in Paradise Kitchens, the respondent. He ordered that “the matter be taken out of the list of hearings for that day, re-fixed for hearing on 17 August and that the respondent provide the applicant's Union with documentary evidence on which it intends to rely by Thursday, 10 August 1995, in particular medical certificates, wages and pay records and accountant's records or any other relevant documents”.

THE CLAIM

The applicant claims that on 16 February 1995 he fell and hit his head and injured his neck when a vehicle reversed suddenly and at speed off a piece of masonite on which he was standing.  He had returned to the work place after working on a job and had asked the driver of the vehicle to move the vehicle and had made that request at the direction of Zlatko Trajcevski, a partner in the respondent business.  Trajcevski and an apprentice, Jason Kotevski, had been out on the job with the applicant.

The evidence from Mr Trajcevski is consistent with the applicant having fallen.  Trajcevski states he reversed his vehicle to allow the vehicle in front to move out of the work shop entrance and that he did not see the applicant fall, but accepts that the fall occurred and that he told the applicant to take a little bit of a break.  That too is consistent with the applicant's evidence.  The applicant states that that evening he felt pain at the back of his head or neck and the next morning at the front of his neck.

It is quite clear that he visited Dr Christopher Scown at the Western Region Health Centre in Footscray on 17 February, and an initial Workcover medical certificate issued that day (Exhibit A3) records a report of an injury from a fall on 16 February with the applicant unfit for work until 20 February.

Trajcevski confirms in his own evidence that the applicant telephoned on 17 February and indicated what he had done and that he was going to go to a doctor, or that he had gone to a doctor, and that he might need physiotherapy, and that he expected to be back at work on Monday, 20 February.

Trajcevski also confirms that the applicant rang again on 20 February reporting that he would be away until Wednesday, 22 February, and again on 22 February reporting that he would be unfit until Friday 24 February and again on 24 February reporting that he would be unfit until Monday, 27 February.  A certificate of continuing incapacity (Exhibit A2) contained a diagnosis muscular strained neck.  It was issued by Dr Scown on Tuesday, 21 February and indicated a further medical examination on that date with the patient needing continued physiotherapy and being diagnosed as fit for normal duties on Monday, 27 February. The document certified the following bodily restrictions as resulting from the injury - “minimal heaving lifting and may have trouble in confined spaces”.

The applicant claims he returned to work on 27 February but had a physiotherapy appointment at 11 or 11.30 am.  His appointment card at the health centre (Exhibit A4) confirms such an appointment at 11.15 am.  The applicant states that he was working that morning doing some staining and that he went and asked either Zlatko Trajcevski or his partner, John Dancevski, for his pay for the previous week when he had been absent.  He states he was told to wait a moment and he went back to the work place and washed his hands.

He states he was then called to the office and given a cheque and was told by Trajcevski or Dancevski that they had to let him go as there was not enough work.

He claims he said sarcastically words to the effect “thanks a lot”.

Again, Trajcevski gives consistent evidence stating that the applicant said words to the effect, “Ah, yes, sure”,  but he may have said this sarcastically and that the applicant did mention that he had a physiotherapy appointment.

Mr Sutton for the applicant claims that the applicant believes the primary ground for termination was the absence from the work place from 17 February to 27 February, because of the injury sustained in the work place on 16 February.

Section 170DF(1) provides that an employer must not terminate an employees employment for, or including a reason of temporary absence from work because of illness or injury and if the court finds that such a reason was a reason included by the employer as a ground for termination, then the court will find, pursuant to section 170DE(1) that such a termination was not for valid reason and is substantively unfair and warrants remedy.

FINDINGS

I have carefully assessed the evidence of the applicant and the respondent witnesses.  I find, particularly on the basis of the evidence of Zlatko Trajcevski himself, that he, at least in part, terminated the employment because he really did not accept that the applicant's absence between the 17th and 27 February, or for that matter on 14 February, was based on genuine grounds of illness on 14 February and injury between 17 and 27 February.  Indeed, his evidence is that the absence on 14 February and the lateness at work on 13 February were what he described as “the boiling point”, which sparked off a decision to terminate the applicant.  His exact words were:

“I cannot afford to run a business if an employee is not there.”

The absence on 14 February is supported by a certificate from Dr Eva Wong.  The certificate (Exhibit R1) certifies the applicant was suffering from gastritis and was unfit for work on that date. It is unnecessary to determine whether Trajcevski in effect threatened the applicant when he attended the work place on 7 March to seek a separation certificate. However, I prefer the evidence of the applicant to that of Trajcevski on March, threaten to break the applicant’s fingers if the applicant created any more cost or expense for the respondent.

The applicant's evidence was at all times consistent with his conduct after he sustained his injured neck on 16 February, including the steps the applicant took immediately after termination to consult the Social Security Department and his Union.  On crucial issues, Trajcevski gave evidence which confirmed many aspects of the applicant's version of events. 

I find too that the respondent, via Trajcevski, sought to avoid the applicant pursuing a Workcare claim and that elements of his own evidence infer this was indeed the position that he took. The termination may have been based in part on a lack of work and on operational requirements. I accept that the respondent was experiencing difficulty in terms of flow of work. I accept that it is likely that in general terms the two respondent partners from time to time made that situation clear to their employees. I accept that they made it as clear to the applicant as they made it to other employees, but I note that they did this only in general terms. These grounds for termination were not expressed directly and clearly to the applicant or to other employees.

I find that the applicant was never given adequate warning or counselling and that, in terms of a termination based in part, or in whole, on such a reason or ground, such a termination would have been harsh, unjust and unreasonable. I rely on the authorities cited in Papadopoulos and CML namely R v The Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-operative Ltd [1977] 44SAIR 1202; Corkrey v General Motors Holden Ltd [1986] SAIR 351, 1986 AILR 439; Hemmings and Others v CPS Credit Union [1991] 58 SAIR 421; 1991 AILR 323; Cheesman v Kinhill Engineers Pty Ltd [1992] 59 SAIR 168; White v Douglas Diagnostic [1993] 60 SAIR 142; McLean v David Jones (Australia) Pty Ltd [1993] AILR 98; Needham v Shepparton Preserving Company Limited [1991] AILR 395.

During evidence, Trajcevski claimed that performance was also a reason for termination. I suspect the applicant's performance was at times less than satisfactory and his attitude perhaps often less than satisfactory, but the court has no evidence that the applicant's performance was seriously flawed and no evidence that the applicant was advised or warned or counselled. If performance was a reason, which the court doubts, there is no reference to performance in the employment separation certificate. If performance was a reason then the respondent breached  S170DC and for that the court would rely on but not repeat the much quoted passage of the Chief Justice of this court in Nicholson and Heaven and Earth Gallery [1994] 1 IRCR 199 at 209-210.

In finding the termination unlawful and in breach of section 170DF(1) I am happy to rely on Northrop J’s general exposition of section 170DF and indeed, the general exposition of division 3 part VIA in Jason Scott Johns and Gunns Limited 18 May 1995 (as yet unreported) Industrial Relations Court of Australia TI148R of 1994.

REMEDY

I find reinstatement impracticable.  Indeed it is not sought by the applicant. I rely, in terms of the impracticality of reinstatement on the dicta of the Chief Justice in Nicolson at 210.

Compensation will be awarded and will take account of the fact that the applicant has received Social Security payments since about 17 March 1995 but has only worked for one day since termination. I note the applicant's claim that, at employment interviews, his mention of his termination, and the circumstances surrounding his Workcare claim, may have, in his view prejudiced future employment.  I am not convinced present unemployment is the result of such references by the applicant to the circumstances of his termination. The court has no way of knowing the manner in which the applicant addressed the issue of his termination when interviewed for employment, if indeed he has been interviewed for employment.

The court is not entirely satisfied that the applicant has attempted to mitigate his loss by really vigorous attempts at re-employment.  In any event, the court hopes that the judgment today will assist the applicant quickly in gaining employment.  He is a qualified cabinet maker.  His prospects of re-employment, if genuinely sought, should be quite good.

ORDER

Taking account of his qualifications, his youth and the fact that he has not been eligible for any form of Workcare payment since May, I order compensation in the sum of $3500 and I require that the $1500 of that compensation be paid to the applicant within 21 days, $1000 one month thereafter, and the final $1000 one month thereafter that again, and that is the order of the court.

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

Associate  :          

Date  :          29 August 1995

Appearances:

Geoff Sutton, Acting Secretary, AWU-FIME appeared for the applicant.

The respondent, Zlatko Trascevski appeared in person.

Date of Hearing  :          17 August 1995

Judgment  :          17 August 1995