Kenneth McKenzie Dougal and Michael John Said (Trading as Said Transport
[1994] IRCA 87
•21 Oct 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - Temporary absence from work because of injury - Termination based at least partially, if not wholly, on the fact that the employee was unable to work for 4 to 6 weeks because of injury - trial proceeded in absence of Respondent.
Industrial Relations Act 1988, SS170 DE, 170DF, 170EE
KENNETH McKENZIE DOUGAL AND MICHAEL JOHN SAID (TRADING AS SAID TRANSPORT) - No. VI 535/1994
Before: Ryan JR
Place: Melbourne
Date: 21 October 1994
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI 535/1994
B E T W E E N: KENNETH McKENZIE DOUGAL
AND:
MICHAEL JOHN SAID (Trading as Said Transport)
COURT: RYAN JR
PLACE: MELBOURNE
DATE: FRIDAY, 21 OCTOBER 1994
JUGMENT EX TEMPORE
Well, I propose to determine this matter now. Kenneth McKenzie Douglas seeks remedy from Michael John Said (Trading as Said Transport) for what Dougal claims was unlawful termination of employment on 13 May 1994.
In his affidavit in support of his application, the applicant expresses his belief that his termination was unlawful and he states this as follows:
I was hurt working on Tuesday evening, 10 May 1994. I worked all day Wednesday but the pain became worse as the day progressed. I attended my work place Thursday morning, 12 May 1994, and I informed my employer I would have to see a doctor. The doctor gave me a certificate for two days off, being 12 May and 13 May. He sent me for X-rays, the X-ray showed I had broken two ribs. My doctor, on receipt of this information, informed me it would be between four and six weeks until I was fully fit to work. When I gave my employer the medical certificate, he terminated my employment.
The respondent, in his affidavit, denies that the employment was ended by an act of the employer and states:
The applicant's employment was not terminated by me. The applicant resigned when offered light duties because of the physical problems he was complaining of at the time. There was no notification of termination as the applicant resigned. The applicant came to me on Thursday, 12 May and produced a medical certificate for illness requesting two days off work. I agreed to giving him this time off. He returned to work on Friday, 13 May 1994, and produced an X-ray and told me that the doctor said he had broken two ribs and a punctured lung. He also stated that he would need four to six weeks to fully recover. I suggested that he may want to go on to light duties until he does recover. The applicant thought this was possible and said to me, he would see me next week and just see how he goes.
The applicant came in with his works clothes on Monday, 16 May 1994, together with a list of what he thought he was owed in wages. I told him again, I would put him onto light duties. He advised me had driven his wife's car into work and he trouble changing the gears and did not think he would be able to manage any sort of work and would like to finish off and just see how things went in the future. He then asked me for a separation certificate which I gave to him and he then left.
The applicant filed a second affidavit in which he contests the position as put by the respondents. He states:
I did not resign my position with the respondent. The respondent employer never made an offer of light duties. The respondent did not ever make any offer to me as to light duties. When I provided the respondent employer with a medical certificate indicating that I was unable to work for a period of four to six weeks and at that point in time, the employer terminated my employment with Said Transport. I only requested a separation certificate after the respondent terminated my employment which was on 13 May 1994. On Monday, 16 May 1994, I provided the respondent employer with a list of moneys owing to me together with a request for a separation certificate which was not provided until 19 May 1994.
The medical certificate which I produced to the respondent indicated that I as unfit for work for the stipulated period of time. On Thursday, 19 May 1994, I also handed to the respondent a worker's claim for compensation. The respondent has failed to pay me $2087 being two weeks wages, one week in lieu of notice, holiday pay and four public holidays.
The application was first referred for conciliation at the Australian Industrial Relations Commission by Seacombe R on 10 June. The file contains a letter of 13 July 1994 from Grimshaw C of the Australian Industrial Relations Commission. The letter is in the following terms:
Deputy Industrial Registrar, Victoria.
Reference by court under section 170E(C)
Kenneth McKenzie Dougal v Michael John Said (Trading as Said Transport)
The applicant in this matter did not attend the conciliation hearing, this file is now returned without any proceedings taking place.
It appears to be signed:
G.D. Grimshaw, Commissioner, 13 July 1994.
At a second directions hearing on 12 August, Parkinson JR made the following order:
The matter be referred to Australian Industrial Relations Commission for conciliation.
In the event that this matter fails to settle at conciliation, this matter is fixed for hearing on 21 October 1994.
The file shows that the respondent entered an appearance through a firm of solicitors on 20 June 1994. On 10 August, the solicitors advised the court in writing that they were no longer acting for the respondent, Mr Said. Mr Said appeared in person at the directions hearing on 12 August when the matter was referred to the Australian Industrial Relations Commission and was set down for hearing.
The applicant was represented at that hearing by Domenico Callea, a solicitor from the firm of Cicero, Burke and Callea. On 12 August, after the order had been made, the Deputy District Registrar wrote to Cicero, Burke and Callea advising that the matter had been listed for trial on 21 October and a copy of that letter was sent to the respondent at his address at 41 Connell Street, Hawthorn.
When the respondent did not attend at 10.15 today, my associate made contact by telephone with 41 Connell Street, Hawthorn, the respondent's residential address. A woman, who identified herself as the respondent's wife, indicated that she did not know the exact whereabouts of her husband and gave my associate a possible contact number. This turned out to be an answering service. The operator of that service was unable to provide a means of contacting the respondent and did not appear to know the precise whereabouts of the respondent.
The applicant was present. His solicitor, Mr Callea was not. My associate had also contacted his office. I also spoke to Mr Callea's secretary. I decided to proceed with the hearing after advising Mr Callea's secretary that that was my intention and that she should make every effort to contact Mr Callea, who was reported to be at a seminar at Queens Road.
The applicant had advised the court that he and Mr Callea and attended the second conciliation conference at the Australian Industrial Relations Commission in late September and that Mr Said did not attend. I took the view that after two aborted conferences in the Australian Industrial Relations Commission, this was a matter in which the court could be satisfied that it was not appropriate to further refer the matter to conciliation pursuant to section 170EC(b).
Of course, it had been referred twice so, I suppose, the more appropriate description of the court's position was that a continuation of referral to the commission even if acceptable to the commission was no longer appropriate. Soon after the applicant began to give sworn evidence,
Mr Bowditch of counsel then arrived, He had been briefed a few minutes earlier by the applicant's solicitors.
During an adjournment granted to allow Mr Bowditch to take instructions, my associate ascertained, by telephone, from the respondent's wife that he was on his way home. The respondent's wife was instructed to advise the respondent that the matter was proceeding and she was provided with detailed information of the location of the court. The respondent did not appear and the trial proceeded in his absence.
When the court resumed, I outlined generally the history of the matter as it appears above. I directed that the applicant be sworn again and that he be taken through his evidence from the beginning by counsel.
The applicant's sworn evidence, in effect, is as follows. He was matched for employment with the respondent company or ‘more correctly’ the respondent's firm, by the Commonwealth Department of Employment, Education and Training.
He commenced employment on 6 January and was provided, on 12 January, with a copy of a CES Job Start Schedule to Agreement which indicates a subsidy payable to the employer for 16 weeks, from 6 January 1994 to 27 April 1994 and contains the following statement of requirements:
Must have HA or HT licence. Required to drive four to ten tonne truck in metro area. Reliable and punctual. Must speak and write English. Fit and healthy. Experience preferred.
On 10 May 1994, the applicant attended at the premises of Lenlock Pty Limited to load. It was a bulky load necessitating him taking the gates off his truck to allow access for a fork lift truck. The applicant replaced the gates after the truck was loaded and appears to have hurt his chest. He suffered pain as a result. He proceeded to Mt Waverley to the Transport Depot of Brambles. He returned from Brambles to the respondent's depot.
His evidence was that he had difficulty in changing gears, he had pain in his chest and he experienced difficulty in talking. His evidence suggests that he briefly reported the incident to the respondent at that stage. On Wednesday, 11 May he attended at his work place at his normal time, at about 7 am. He told the respondent that he had a sore chest. He worked throughout that day. He loaded, delivered and off-loaded a load of flour which appears to have been some 80 bags of flour. This was in Bacchus March. He was very sore and in considerable pain at the end of that day's work and his evidence is that throughout the day, he took Panadol Forte on a regular basis for pain relief.
On Thursday, 12 May, he again attended his work place at 7 am. He told the respondent that he would need to see a doctor. The respondent indicated to him that in those circumstances, he should put the truck in for service. He did that. He attended his local doctor in Laverton. The doctor apparently issued a medical certificate that he was unfit for work for that day, 12 May, and for the next day, 13 May. He also made an appointment for the applicant to attend at the Werribee Hospital at 2 pm for X-rays.
The applicant swears that he telephoned the respondent and advised him that he had to attend for X-rays at the Werribee Hospital and that the respondent told him that he had a job which he wanted the applicant to undertake before he attended Werribee Hospital. The applicant indicated that he did not believe that he could drive a truck or operate the gears on a truck. The respondent appears to have advised him that the job could be undertaken in his own car and it only involved the transport of a bag of flour to Woodend to replace a bag which had been wrongly delivered and then to return to an appropriate depot with the bag of flour which had been wrongly delivered to Woodend.
The applicant used his car and undertook this particular job. He then returned to the Werribee Hospital. He had the X-rays taken. He was given a letter for his doctor. He attended his doctor. He was advised by his doctor that he had two broken ribs and that he would be unfit for work for four to six weeks and he was issued with a medical certificate to that effect.
He rang the respondent and the respondent appears to have told him to attend and see him at the work place the next day, Friday, 13 May. At about 10 am on Friday, 13 May, the applicant attended at the work place. He appears to have taken with him the medical certificate and, quite possibly, the X-rays.
His evidence is that when the situation was explained to the respondent, the respondent was not happy and indicated that the applicant had been employed to drive a truck, that he was unable to do it and that he was of no value to the respondent and that the respondent would have to get someone else.
The applicant's evidence is that the respondent said to him that he was finished. The applicant asked the respondent what did he mean and the respondent indicated:
You no longer work for me.
The applicant appears to have asked for a notice of termination. No notice of termination was forthcoming at that stage. The applicant's evidence is that he sought certain advice and that he went to the Commonwealth Employment Service and that he also contacted the Industrial Relations Commission.
On Monday - The evidence is also is that the respondent had indicated to the applicant that he would work out what money was due to the applicant. The applicant himself made some calculations as to what he believed was owing to him over that weekend and he appears to have attended at the work place on Monday, 16 May. It is not actually too clear from my notes as to whether, in fact, the calculation by the applicant took place after his meeting with the respondent on 16 may or after his meeting with the respondent on Friday, 13 May, but nothing turns on that.
It is clear, however, that on 16 May, the respondent indicated to the applicant that he wanted to see him again on Wednesday, 18 May, and was proposing to check figures as to what was owed to the applicant. The applicant telephoned the respondent, as requested, on the morning of 18 May and he saw the respondent on the afternoon of 18 May. He indicated that he had to obtain a notice of termination, or rather a employment separation certificate, and that this was required by the Commonwealth Employment Service.
On the Wednesday afternoon the respondent gave the applicant a notice of termination statement or an employment separation certificate. He also appears to have indicated that, in his view, the applicant was only entitled to one and a half's weeks wages, not having worked on Thursday, 12 May or Friday, 13 May. He rejected any proposition that the applicant was entitled to payment of a week in lieu of notice and expressed the view the applicant had left the employment of the respondent.
The respondent also appears to have rejected any proposition that any payment should be made in relation to holiday pay and, in fact, all the evidence is that at no stage has the respondent made any payment of any description. The last payment made to the applicant by the respondent, according to the applicant's evidence, was a payment of 30 April 1994, presumably a normal payment of wages for work undertaken.
The applicant has indicated that he was and is looking for employment until he retires and that it is not easy for a man in his 50s to obtain employment. When his ribs healed he obtained a medical clearance. This appears to have occurred on 16 June. The applicant sought work once more and found work from mid July on a casual basis and then full time work from 8 August 1994 with Adrian Gray and Associates, cleaning contractors, where he works in high rise flats in Fitzroy from 7 am to 3 pm and receives a gross wage of $376 per week.
I have concluded that the respondent's termination of the applicant's employment on 13 May 1994 was a termination of employment and that this termination was at least partially, if not wholly, based on the fact that the employee was temporarily unable to work because of injury. Section 170DF(1) states:
An employer must not terminate an employee's employment for any one or more of the following reasons or for reasons including any one or more of the following reasons:
(a) Temporary absence from work because of illness or injury.
The termination was in breach of section 170DF and also in breach of section 170DE being harsh, unreasonable and unjust. In terms of remedy, I do not consider re-instatement practicable or appropriate. Section 170EE(2) applies. Section 170EE(3) reads as follows:
If the court thinks in respect of a contravention of a provision of this division (other than section 170DB or 170DD) constituted by 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 working out the amount of compensation for the purposes of sub-section (2), the court is to have regard to the remuneration that the employee would have received or would have been likely to have received, if the employer had not terminated the employment.
The section then goes on to detail the limitations and caps on compensation which maybe awarded by the court.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 26 October 1994
Appearances:
Counsel for the Applicant : I.W.J. Bowditch
Solicitors for the Applicant : Cicero Burke and Callea
For the Respondent : No appearance
Date of Hearing : 21 October 1994
Judgment : 21 October 1994
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