Kerry Stray v Fosroc Chemfix/Fosroc Pty Limited
[1995] IRCA 80
•20 February 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of Employment - Claim of unlawful termination for reasons of physical disability - Alleged inability to perform the inherent requirements of the particular position - Alleged lack of procedural fairness - Application for reinstatement and compensation dismissed - Order made.
Industrial Relations Act 1988, ss. 170DC, 170DE(1), 170 DE(2), 170DF(1)(f), 170DF(2), 170EA, 170EDA(2).
KERRY STRAY V FOSROC CHEMFIX/FOSROC PTY LIMITED
No. NI 0848 of 1994
CORAM: PATCH JR
PLACE: SYDNEY
DATE: 20 February 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NI 0848 of 1994
BETWEEN:
Kerry STRAY
Applicant
AND:
FOSROC CHEMFIX/FOSROC PTY LIMITED
Respondent
CORAM: PATCH JR
PLACE: SYDNEY
DATE: 20 February 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NI 0848 of 1994
BETWEEN:
Kerry STRAY
Applicant
AND:
FOSROC CHEMFIX/FOSROC PTY LIMITED
Respondent
CORAM: PATCH JR
PLACE: SYDNEY
DATE: 20 February 1995
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript.)
This is an application under section 170EA of the Industrial Relations Act (‘the Act”). The applicant seeks the following orders:
(a)An order declaring the termination of his employment by the respondent to have contravened Division 3 of Part VIA of the Act;
(b) An order requiring the respondent to reinstate him in employment;
(c)An order that the respondent pay compensation to him; and
(d)Such other orders as will put him in the same position as nearly as can be done as if his employment by the respondent had not been terminated.
The applicant makes three submissions. The primary submission is that the termination of the applicant's employment was a breach of section 170DF(1)(f) of the Act. The second submission is that the termination of the applicant's employment was a breach of section 170DE of the Act in that the termination was harsh or unjust or unreasonable. The third submission is that the termination of the applicant's employment was done in breach of section 170DC of the Act in that there was a lack of procedural fairness - namely that the applicant was not at the time of the termination of his employment on notice that his employment was in jeopardy.
Section 170DF(1) of the Act reads as follows:
“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:
Subsection (f) is as follows:
“(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
The applicant contends that the termination of his employment was for reasons of “physical disability”.
Subsection (2) of section 170DF is as follows:
“Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.”
Section 170EDA(2) of the Act is as follows:
“If an application under section 170EA alleges the determination of employment of an employee contravenes subsection 170DF(1) on the ground that the termination,
(a)was for a particular reason or reasons referred to in that subsection that was stated in the application, or
(b) was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened 170DF(1) unless the employer proves that:
(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
(d) the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.”
The onus is therefore on the respondent employer to prove that the physical disability (in connection with which the applicant in this case was undoubtedly dismissed) resulted in him not being able to perform the inherent requirements of his particular position.
In the particular facts of this case, if the respondent succeeds in discharging the onus under section 170DF(2) then, subject to the question of whether or not the applicant establishes that the termination of his employment was harsh or unjust or unreasonable, the respondent would also succeed in establishing a valid reason for the termination of the applicant's employment under section 170DE(1) of the Act.
In regard to the applicant's principal submission, the first submission, the question boils down to this: Was it an inherent requirement of the applicant's position that he be able to go underground into mines?
At the time of the termination of the applicant's employment, which was 2 September 1994, the applicant was suffering from a physical disability as a result of an injury which, as I understand it, he suffered in early 1993. In any event, he was off work for most of the May/June period in 1993 following the injury and a consequent operation. It was common ground that the applicant's injury and consequent disability precluded him from going underground. The applicant himself accepted this and communicated his doctor's opinion to that effect to the respondent. In cross-examination he gave this evidence:
Q.You told Gary Ashford that the specialist had said you could not perform your full range of duties?
A.I told Gary Ashford that my specialist had told me that I couldn't go underground into mines.
The applicant's doctor was Dr Peter Maloney, but his report was not in evidence. It was initially tendered by counsel for the respondent but objection was taken to it by counsel for the applicant, on the basis that, in the absence of the doctor, the report was hearsay. That submission was upheld and the tender of the report was accordingly rejected. Subsequently, counsel for the applicant cross-examined Mr Paul Johnson, a witness for the respondent, in such a way as to make the doctor's report admissible at the option of the respondent. The applicant, however, attempted to tender the report, and this time counsel for the respondent objected. As the cross-examination had only made the report, which was clearly hearsay, admissible at the option of the respondent and as the respondent then took objection despite his earlier tender of the document, it was rejected again. Nonetheless, even in the absence of the report, it is clear that, up until the time of the termination of his employment, the applicant could still not go underground.
The applicant gave evidence in respect of the meeting on 2 September 1994, at which he was notified that his employment was being terminated. He said this, "I said I couldn't go underground".
It is clear that that is still the position. He was asked:
Q.Do you now have medical evidence that you can work underground?
A.No. I'm due to go to the doctor next month.
In his submissions, counsel for the applicant conceded that, as at 9 July 1992, it was an inherent requirement of the applicant's position that he be able to go underground. This concession was not surprising in view of exhibit “L”, which was a document filled out in the applicant's own hand and which was basically a description of the requirements of his job as of that date. In his own hand the applicant said that it was "essential to go underground”.
Mr Paul Johnson, the Human Resources Manager for the group of companies of which the respondent company is one, gave evidence that, although the title of the applicant's position had changed from “Sales Manager” (the title as of 9 July 1992) to “Field Product Development Manager”, (which was the title of his position at the time of the termination of his employment), the duties had not changed.
Counsel for the applicant submitted that because Mr Ashford, the Chief Executive Officer of the respondent company, had directed the applicant not to go to mine sites and not to go underground, the duties of the position, and therefore the inherent requirements of the position, had changed between July 1992 and the time of the termination of the applicant's employment.
I do not accept that submission.
Firstly, there is the applicant's own evidence to the contrary. He was asked this in cross-examination:
Q.Going underground remained part of the duties of the Field Product Development Manager?
A.There was nothing in writing. There were people I could delegate that to.
Q.At all times it remained part of the duties of the Field Product Development Manager to go underground?
A.Yes.
Secondly, the evidence established that the reason why Mr Ashford told the applicant not to go underground was because the applicant had told him that his medical condition made that dangerous for him. It is clear that Mr Ashford was concerned firstly for the applicant's well being, and secondly, in respect of the possible liability to the respondent company under the New South Wales Occupational Health and Safety Act. There may have been some difficulties with the applicant's relationship with the main distributor of the products, flowing from the applicant's previous employment, but I am satisfied that the reason for Mr Ashford's direction to the applicant not to go underground was the information that he, Mr Ashford, had received in respect of the applicant's medical condition.
Despite the applicant not being able to perform this important part of his job, the company retained him in employment for more than a year. They were simply giving him the chance to recover from his injuries, without endangering him physically or putting the company in a position of possible liability.
The applicant also submits that, because there were employees to whom, on the applicant's evidence, the task of going underground could be delegated, it was not therefore an inherent requirement of the position that the applicant himself should be able to do that.
I do not accept that. It does not follow from the right to delegate that the applicant himself was never required to do that task.
The respondent sells strata stabilisation products, which are used in underground mines. For example, the products include special resins. There are apparently numerous other products. The products, especially new ones or old ones that have been changed to meet changing conditions, have to be demonstrated to the customers, new and old, and tested in the field. This requires that work be done underground. The applicant's position was the one in the company structure with the principal responsibility for that work. I simply do not accept that that responsibility could always be delegated without his employer losing a substantial part of the benefit they could reasonably expect from employing him. I repeat that it was the applicant's own evidence that it remained at all times part of the duties of the Field Product Development Manager, the applicant's position, to go underground.
Mr Ashford's evidence, (and he was the Chief Executive Officer of the respondent company and in the best position to know), which was not contested in cross-examination and which I accept, is that as a result of the applicant's position not being filled since the termination of his employment, there has been substantial disruption to the work of the other persons in the company who have to go to the mines and go underground and test and demonstrate the company's products.
For the above reasons, I find that at the date of the termination of the applicant's employment it was an inherent requirement of his particular position that he be able to go underground into mines. He could not do so.
Even though the applicant was dismissed because of a “physical disability” in the terms of section 170DF(1)(f) of the Act, I find that the respondent has discharged its onus under section 170DF(2) of the Act.
It follows, in the particular circumstances of this case, that the respondent has also discharged the onus which it bears to prove that there was a “valid reason” for the termination of the applicant's employment in respect of section 170DE(1) of the Act. That “valid reason” was the applicant’s inability to go underground into mines, in the circumstance that that was an inherent requirement of his position.
The applicant submits that, even if I were to find that, prima facie, the applicant was dismissed because of a valid reason in accordance with section 170DE(1) of the Act, I should nonetheless find that, in all the circumstances, the termination of the applicant's employment was not for a valid reason because of the provisions of section 170DE(2) of the Act in that it was harsh, unjust or unreasonable. He submits that this follows from the “fact” that the applicant was not made aware that his job was in jeopardy. For much the same reasons the respondent also submits that there was a breach of section 170DC of the Act. I reject both of those submissions.
Firstly, there is again the applicant's own evidence.
There was a meeting in June 1994 between the applicant, Mr Johnson and Mr Ashford. The applicant gave evidence about that meeting. The applicant said:
“I expressed my concern that I would be dismissed because the doctor had said I couldn't go underground. It was agreed my position would be reviewed in a couple of months.”
Therefore, certainly by June 1994, if not before, the applicant was well aware that his continued employment was in jeopardy. It was common ground that between the June meeting and the September dismissal both the applicant and the respondent tried to find alternative employment for the applicant in the company and in the wider group of companies associated with the respondent company. That search was unsuccessful.
The applicant gave evidence that in July 1994 he phoned Mr Ashford in connection with a workers compensation claim that was due to be finalised in that month and that Mr Ashford said the company was not intending to dismiss him. Mr Ashford denied that those conversations took place. Counsel for the applicant submits that, as a result of those conversations, the applicant was entitled to believe that his employment was not in jeopardy. Counsel for the respondent submits that, even if I were to accept the applicant's evidence as to the occurrence of the conversations, it does not follow that he was not still on notice that his employment was in jeopardy.
As I said, that notice was clearly given at the June meeting. The applicant must have known that the search for alternative employment (which went on from June until 2 September) meant that his position was still in jeopardy.
Furthermore, I agree that it does not inexorably follow from those conversations, even if they did occur, that the applicant was not still on notice that his position was in jeopardy. If Mr Ashford did say what the applicant alleges, the most likely meaning of the words is that, as of July, when the conversations occurred, the company was not intending to, then and there, dismiss the applicant. It does not mean that his position was secure.
Furthermore, (and importantly), the applicant was never asked by his counsel if he thought that the conversations with Mr Ashford meant that the possibility of dismissal which had been made clear at the June meeting had been, in effect, cancelled out. If counsel had instructions to that effect, then I would expect that evidence to that effect would have been adduced.
I therefore find that the applicant was put on notice in June 1994 that his physical disability put his continued employment in jeopardy, and that this notice continued until September, right up until the moment of the termination of his employment. There was no positive result, unfortunately, in respect of the search to find alternative employment, and the applicant's employment was terminated for the valid reason that I have set out above.
In respect of the question of whether the termination of the applicant’s employment was “harsh” or “unjust” or “unreasonable”, I also take into account the quite exemplary attitude and actions of the respondent company, in retaining the applicant in employment for more that a year, and engaging in a wide-ranging search to find a suitable position for him.
As it cannot be said that the termination of the applicant's employment was harsh, unjust or unreasonable due to a lack of procedural fairness, there was no breach of section 170DE of the Act.
As the reason why the applicant’s employment was in jeopardy was made clear to him in June, there was no breach of section 170DC of the Act.
The application is therefore dismissed.
___________________________________________________________
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associate : Phillipa Peach
Date : 10 March 1995
REPRESENTATION
Counsel for the Applicant : Mr R Moore
Solicitors for the Applicant : Maguire & McInerney
Counsel for the Respondent : Mr P Newall
Agents for the Respondent : Chamber of Manufacturers of NSW
Hearing Dates : 15, 20 February 1995
Judgment Date : 20 February 1995
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