Kearin Peter Dombroski v Beeflands Australia Pty Limited

[1995] IRCA 482

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - whether serious and wilful misconduct - whether valid reason  for termination of Applicant’s employment - whether termination of Applicant’s employment harsh unjust or unreasonable.

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

HELEN O’CALLAHAN-EVANS -V- MITSUBISHI MOTORS AUSTRALIA LTD

No. SA 1173 of 1995

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  18 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SA 1173 of 1995

B E T W E E N:

HELEN O’CALLAHAN-EVANS

Applicant

AND

MITSUBISHI MOTORS AUSTRALIA LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  18 SEPTEMBER 1995

THE COURT ORDERS THAT:

The Application is dismissed

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SA 1173 of 1995

B E T W E E N:

HELEN O’CALLAHAN-EVANS

Applicant

AND

MITSUBISHI MOTORS AUSTRALIA LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  18 SEPTEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully. She claims compensation. She does not seek reinstatement.

The Applicant commenced employment as a production worker at the Respondent’s paint shop at its Tonsley plant on 5 September 1994.

Between June and August 1994 the Applicant had been treated by her general practitioner, Dr Dean, for symptoms in her right arm.  On 8 August 1995 she had received an injection of Depo Medrol into her right shoulder.  That injection rendered her symptom free.

On 22 August 1995 the Applicant completed an Application for employment with the Respondent.  On 28 August 1995 the Applicant completed a “medical history form” and underwent a medical examination.

In completing the Application for employment form and the medical history form, the Applicant did not mention her treatment and symptoms between June and August 1994, the Applicant did however mention that she is a diabetic . 

Her condition is controlled to some extent by insulin.  She also gave evidence that she is a heavy smoker.

The Applicant experienced some discomfort in her arms soon after commencing her duties.  The work was repetitive.  She assumed the discomfort was caused by her lack of fitness.

In December 1994 the Applicant reported to her supervisor, Mr Mifsud that she was experiencing symptoms in her right arm.

In January 1995 the Applicant’s duties included increased masking work, which involved pressing tape on to cars with her fingers.  She associated these duties with a dramatic increase in symptoms in her hands.  She saw Dr Verrall, another doctor at the surgery where she had been treated prior to commencing her employment on 17 February 1995.  He diagnosed bilateral carpal tunnel syndrome.  The Applicant was given a Notice of Disability by her supervisor.  She did not submit the notice until later, because she feared that she could lose her employment.  She subsequently submitted a claim for compensation on 6 April 1995.  She was seen by Dr Panyaris, the company doctor.  On 6 April 1995, he referred her to Dr Lawrence a plastic surgeon who saw the Applicant on 10 April 1995.  The Applicant did not provide the earlier history of symptoms or treatment prior to her employment to either of those doctors.

The Respondent sought and received a medical report from Dr Verrall which revealed that history of treatment prior to the commencement of her employment.  It was the receipt of that report that set in train the process that led to the Applicant’s dismissal.

On 30 May 1995 the Applicant was interviewed by Ms Van De Reep from the Respondent’s workers compensation office and four other people, including Mr McCarthy who was the Respondent’s Employee Relations Officer.

She was advised and received a written notice that her claim for workers compensation was rejected.  She was also advised and received notice that her employment was being terminated.

Dr Drew who performed the medical assessment of the Applicant prior to the commencement of her employment gave evidence that if he had been aware of the Applicant’s symptoms and treatment between June and August 1994 he would not have recommended her for employment because most production duties at the Respondent’s plant were repetitive and there was a high likelihood of her developing carpal tunnel syndrome because of her history.

The Applicant gave evidence that she did not think of the treatment and symptoms when completing the Application form.  She did mention he diabetes, being well aware that working would require some adjustment of her insulin dosage. 

She also gave evidence that she did not tell Dr Panyaris or Dr Lawrence of the earlier problems because of the dramatic symptoms she was experiencing by the time she saw them.

Her evidence was to the effect that the symptoms of June to August 1994 were insignificant by comparison to the problem she experienced in April 1995.

Dr Lawrence’s Plastic Surgeon report was tendered in evidence.  In it she states “....and has never previously had any problems with her hands”.

It seems to me, that the manner in which she was examined and questioned, the degree to which she was comfortable with each doctor and the amount of time she was able to spend may well have had some bearing on the detail given by the Applicant to each of the Doctors.

She explained her unwillingness to make a claim as being because of her belief that employers did not like employees who made workers compensation claims.  There was nothing about the way she gave that evidence that leads me to conclude other than that she honestly held that belief.

The Applicant gave all of her evidence in a straight forward manner, her version of what happened did not change upon cross examination.  No other witness evidence presented any real challenge to the veracity of her evidence.  She impressed me as an honest and reliable witness.  I found her evidence consistent and plausible.  I accept as a fact that she did not turn her mind to the treatment and symptoms of June to August 1994 when she applied for her job and had the medical assessment.  I accept that as a fact that she did not deliberately mislead Doctors Panyaris or Lawrence.

Did the Respondent have a valid reason for the termination of the Applicant’s employment?

It was clear from the Respondent’s evidence concerning the meeting of 30 May 1995 that an assumption was made that the Applicant’s failure to reveal details of her medical history was a deliberate act.  Counsel for the Respondent argued that regardless of whether the Applicant’s conduct was deliberate, the employer was entitled to dismiss the Applicant because she would not have been offered employment had the Respondent known of her history of treatment and symptoms at the time she applied for her job.

The Applicant’s counsel argued that because the Applicant had completed the forms “to the best of her knowledge”, and that was all that was required of her, the Respondent did not have a valid reason for the dismissal. 

That argument does not dissuade me from the view that the employer has the right to terminate the Applicant’s employment for reasons which essentially relate to its operational requirements, and the right to choose employees who are suited to the work at hand.

I am satisfied that the Respondent had a valid reason for the termination of the Applicant’s employment.
It was not argued before me whether the Applicant’s rights pursuant to the Workers Rehabilitation and Compensation Act(S.A.)  should impinge on the determination of the lawfulness of the termination of the Applicant’s employment.

There was no evidence before me as to whether the Applicant was given notice of the termination of her employment.  In my view the Applicant was not guilty of any misconduct and would be entitled to the prescribed notice.

In my view the evidence in this matter did not disclose any material on which I could rely to find that the termination of the Applicant’s employment was harsh unjust or unreasonable. 

For these reasons the Application is dismissed.

I certify that this and the preceding 3 pages are a true copy of the reasons for my judgment.

DATE OF HEARING          :  6 & 7 September 1995

FOR THE APPLICANT       :          Mr  S Blewett

FOR THE RESPONDENT    :          Mr A Short