Lance Ivan Harvey v Blayney Abattoirs Pty Limited
[1995] IRCA 39
•20 Feb 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - whether termination of employment for valid reason - resons connected with employee’s capacity or conduct - procedural fairness - whether employee given an opportunity to respond to allegations made.
Industrial Relations Act 1988, S170DB, S170EB, S170DC, S170DE, S170DF, S170EE.
Liddell v Lemke (NI 200 of 1994) (unreported 15th December 1994).
Graham Foxcroft v The Ink Group Pty Ltd (No. NI 447 of 1994) (unreported 14th October
1994)
Ian Samual McGregor Nicholson v Heaven and Earth Gallery Pty Ltd (No. NI 27 of 1994) (unreported 10th September 1994).
Bostik (Australia) Pty Ltd v Gorgevski (I) (1992) 41 IR 452
LANCE IVAN HARVEY v BLAYNEY ABATTOIRS PTY. LIMITED - NI 223 of 1994
Before: Judicial Registrar LOCKE
Place: Sydney
Hearing Date: 16 December 1994
Judgement Date: 20 February 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NO. NI 223 of 1994
Between: LANCE IVAN HARVEY
Applicant
And: BLAYNEY ABATTOIRS PTY. LIMITED
Respondent
Before: Judicial Registrar LOCKE
Place: Sydney
Hearing Date: 16 December 1994
Judgement Date: 20 February 1995
MINUTES OF ORDER
THE COURT DECLARES
The termination of the employment of the Applicant did contravene Division 3 of Part VIA of the Industrial Relations Act, (The Act) 1988.
AND THE COURT ORDERS THAT:
The Applicant be reinstated by the Respondent by being re-appointed to the position occupied by him immediately before the termination of his employment and that reinstatement take effect forthwith.
That the Respondent on or before 6 March 1995 pay to the Applicant the sum of $3,906.00 for remuneration lost by the Applicant because of the termination of his employment.
That the period 26th April 1994 to 20 February 1995 inclusive be treated, for all purposes as continuous employment of the Applicant by the Respondent in the position occupied by the Applicant immediately before the termination of his employment.
NOTE: Settlement and entry of orders is to be dealt with in accordance with Order 36 of the Industrial Relations Court Rules.
BACKGROUND
This is an Application under Section 170EA of the Industrial Relations Act 1988 (The Act) wherein the Applicant sought the following relief:-
(a) An order declaring the termination of the employer’s employment of the employee have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (the Act);
(b)An order requiring the Respondent to reinstate the employee in employment; and
(c)An order that the Respondent pay compensation to the employee.
Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the Respondent had not been terminated.
On the first day of the hearing on 11th November 1994 an application was made to amend the application (which was not objected to by the Respondent). Leave was granted. The proposed amendments were seeking declaratory relief under section 170DC. Section 170DE and section 170DF 1(a). In relation to the last, no finding is made for the reason that, as the evidence fell, it was obvious that this was not a ground upon which the Respondent relied to terminate the Applicant’s employment.
It is common ground between the parties, that the Applicant commenced employment at the Blayney Abattoirs Pty Ltd, (then under the proprietorship of the Blayney County Council) in late 1977 or early 1978, having completed the Higher School Certificate examination. In 1988 the abattoirs were sold to McPhee Meats and the Applicant was employed by that company as a pig slaughterman. Down through the years he was promoted, finally becoming fourth in seniority on the pig chain, working under the Butchers Wholesale (Country) Award. At the point in time when he was terminated he was in receipt of $389.60 gross per week. Subsequently, he has been receiving workers compensation payments of $250.00 per week. When not on selected alternative duties, he was the beneficiary of other payments provided for by the award.
On the 15th October 1992, the Applicant sustained a work related injury. Evidence of the facts and circumstances surrounding the accident was taken. Having received some treatment for his injured left arm, the applicant spent what remained of his working day resting at home. Upon returning to work the next day he performed selected alternative duties which did not involve the use of his left arm. Despite this prohibition, the Applicant gave evidence he did use this limb and could and can continue so to do so so long as the work was not repetitive or involved heavy lifting.
On or about 26th October 1992, the Applicant returned to his pre-injury duties, which he continued performing until 10th June 1993. On this day, Dr Langsford operated on the Applicants left arm “to clear away scarring tissue”. Treatment taken by the Applicant prior to this included physiotherapy. He also underwent a nerve conduction test on 17th February 1993.
During this period, the only significant time the applicant had away from work was when he took his annual holidays and when he served a one months period of suspension for his involvement in an industrial dispute.
Dr. Langsford certified the Applicant as being unfit for work for six weeks. He returned to work with the Respondent’s consent, after only one week, assisting in the office in the preparation of taxation and financial documents. On or about the 28th July 1993, Mr Harvey returned to factory work performing selected alternative duties. This led to a flare up of symptoms. Details of the duties performed are set out in paragraph 12, 13, 15 and 16 of the Applicant’s affidavit deposed 4th November 1994.
This work appeared to be varied, productive and available.
Mr Michael Ayton, the General Manager of Blayney Abattoirs, filed an affidavit in the proceedings as well as giving oral evidence at the hearing. His evidence tended to trivialise the nature and scope of the tasks performed by the Applicant when on selected alternative duties. This witness had, like the Applicant, spent most of his working life in the industry but “mainly on the office side”.
When asked to focus on the particular way the duties performed by the Applicant were not productive, Mr Ayton was unable to specify anything of real substance. He had a tendency to overstate the position, in order to bolster the Respondent’s case and justify the stance taken on 26th April 1993.
An example of this was when he gave evidence that:-
“Not everybody that’s injured can go back on their pre job. We have got other employees that have been on workers compensation and have accepted (the emphasis is added) other positions - productive positions on the plant”.
It is quite clear from this evidence that the Respondent was the offeree, yet when asked subsequently what offers had been made to Mr Harvey for alternative full time positions the witness first of all said:-
“I don’t understand what you’re trying to get at”
When the question was reposed, he responded:-
“He never asked for one so how could you offer it if he didn’t ask”
THE APPLICANT
Over a two day period, the Applicant gave evidence of events in a careful and forthright manner, consulting notes he had made contemporaneously when his recollection of those events was wanting. He impressed me as a witness who was doing his best to assist the Court. I found him a credible witness. In those matters, where the evidence given by the Applicant and that given by the Respondent’s witnesses conflict, I prefer the former.
Generally, the evidence supported a finding that the Applicant was well motivated in pursuing the resolution of his symptoms and his return to full duties. The evidence is studded with examples which support this proposition. The applicant said inter alios, he was:-
“...quite happy to go back and do anything and give it a go”.
This was despite the uncertainty that performance might aggravate his condition.
“In the past, some days, I could do things and others it seemed to aggravate it... and I was putting up with some discomfort”.
Furthermore the Applicant has agreed to undergo further surgery probably “early next year” (1995) which could correct the disability he continues to carry. This procedure was recommended by Dr Langsford. It would appear the only obstacle is the permission to proceed which is required from the Respondents Workers Compensation Insurer.
As a result of his injuries and disabilities the Applicant was referred to Dr PR Burgess for medico /legal purposes. Dr Burgess took a history, examined the Applicant and reported (exhibit ‘7’) on the 10th January 1994 as follows:
“...he slipped on the edge of the pig dehairing machine and struck his left forearm on a sharp stainless steel projection sustaining a spectacular laceration just distal to the elbow joint on the medial aspect of the forearm which extended from the front to the back and appeared to involve the flexor group of muscles.
“After healing of the would which occurred without complication, persistent peripheral discomfort in the left forearm and tingling and numbness involving the fourth and fifth fingers, caused his referral for a nerve conduction study. Apparently this showed some damage to the left ulnar nerve which was treated initially expectantly and he was referred for remedial physiotherapy. He attended three times a week for some three months and it appears that the symptoms of discomfort peripheral to the wound got worse.
Dr Peter Stevenson reporting (exhibit ‘6’) on 28 October 1993, describes the Applicant’s condition as “Reflex Sympathetic Dystrophy” an unpleasant, often misunderstood condition. A perusal of exhibit ‘3’, the records of the Applicant’s medical history, reveals prior work related injuries included the loss of the tip of his left forefinger and other cuts of no great severity. There is no record of any prolonged periods away from his work place.
One Christopher Alexander, a registered psychologist, was asked to assess the Applicant in order to ascertain his educational and vocational options.
Mr Alexander reported his findings in a report dated 11th November 1994 which became exhibit B in these proceedings. He also gave evidence in the Applicant’s case at the hearing. Part of Mr Alexander’s results indicated an ESTJ profile:-
“Individuals who share this profile are described as outgoing, organised, systematic, practical, factual and certainly reliable” he reported at page 3.10.
Having observed the applicant in the witness box over two days this view is shared by me. So organised is Mr Harvey he has kept a diary of significant events since the date of his accident. When he attended a Doctors appointment he would first attend his place of work, and if the consultation concluded early enough, he would return thereto.
REHABILITATION
On 21st January 1994, the applicant came under the guidance of Ms Louise Wood from the Industrial Rehabilitation Service (I.R.S) for a rehabilitation programme. Ms Woods had an on site co-ordinator in the person of Mr Christopher Pilson whose duties included the treatment of all injuries that came to the company’s health centre and keeping all documents and records in regards to workers compensation matters. His role in the Applicant’s programme is adverted to anon.
It would appear the applicant would perform one set of duties for four hours then move on to various other duties for the four hours remaining in his working day.
At paragraph 15 of his affidavit deposes to the type of task he was undertaking. He goes on to say:-
“All the work that was given to me I attempted to see if I could do it”.
Ms Wood designed the programme basically to strengthen the applicant’s arm by gradually attempting tasks of greater magnitude for longer periods of time. The hope was that this would lead to a resumption of full duties. However, a stage was never reached where it could be said conclusively that the applicant could be restored to performing his pre June 1993 duties.
It was suggested to the applicant in cross examination that the programme did not continue because his arm was deteriorating. He replied:-
“Well at that stage there was no report on my arm deteriorating they were still hoping it would settle down”
Of course the reason the programme did not continue was because the applicant no longer worked at the abattoirs. Discontinuance was not of his own volition.
No medical evidence was received at the hearing as to whether or not the discontinuance of the arm strengthening tasks hindered the resolution of the Applicant’s symptoms. This is probable in the light of the evidence given by Mr Pilson that the applicant had improved in the performance of certain tasks and there was a gradual increase in the amount of work he was able to do. For this to have occurred, it therefore follows, there must have been an improvement in the applicants symptomatology. Thus any deterioration after the 26th April must be partly attributed to the respondents premature termination of the Applicant’s employment.
Having been thrown on the labour market with very very little chance of finding another job due to his disabilities and his lack of training and experience in other areas, the applicant undertook a computer course to add to his skills. This was a very short course conducted at the Orange Technical and Further Education establishment under the auspices of the I.R.S. This year (1995) if he is not back at full time work, a full time course in this area is envisaged by him:
“It is better than sitting around” he said.
Uncertainty may exist as to the point in time of the Applicant’s complete recovery, but no such uncertainty exists that the applicant was terminated before his rehabilitation programme had been completed.
Mr Christopher Alexander, on the basis of the applicant’s vocational education assessments, deemed him to be able to generate other occupational options, all of which require tertiary/ study training at TAFE and/or university level. Because he had not undertaken any formal education since 1977 and because he is now thirty six years of age, doubt must exist as to his ability to return to the study required by the options. If he did manage to complete one or other of these courses, there could be no certainty he would find employment as a new entrant at nearly forty years of age.
WARNING
Neither Mr Ayton nor Mr Pilson gave evidence that the applicant was warned that his employment was a risk if he did not return to his full duties or that his performance was wanting in those tasks he had been undertaking since June 1993.
On this point the Applicant was asked by his counsel, Mr Giagos:-
“At any time before 26 April generally or as part of the rehabilitation programme was your ability to perform the jobs ever brought into question, the light duties you were doing?”
He answered:-
“Well, when I went back at the beginning of November the mutton foreman came and seen me and led me to believe he had had talks with Mr Ayton and to look after the roof and check for water leaks and so forth and help the maintenance blokes and wrap tape around magnets was another job, collect wrap and oil and grease the chain and so forth and talking to people the maintenance supervisor and so for the while I was doing it. Yes, I believe they were quite happy with the job I was carrying out”.
TERMINATION
On 26 April 1994, the applicant reported for work about 6.00am on the mutton floor checking the roof for leaks and oiling the chain later on, he worked on the pig chain in accord with the recommendation of the rehabilitation provider.
A fellow employee was injured that day and the union subsequently called a halt to any further work. The Applicant, as Chairman of the Occupational Health and Safety Committee tried to resolve the dispute together with union representatives and the company production manager. It was during these deliberations, he received a message that Mr Mulholland, the personnel manager, wished to see him when he was finished.
When the Applicant saw Mr Mulholland at about 2.30pm the latter said to him “Sorry mate I have to let you go” and he handed him a document which is exhibit ‘A’ in the proceedings: It reads:-
“Dear Mr Harvey
Please be advised that under the Workers Compensation provisions you have exceeded the twenty six week period.
We hereby terminate your employment as from Tuesday 26 April, 1994.
Yours sincerely
G Mulholland
Personnel Officer”
Wages were also discussed.
The evidence given by the applicant as to what took place thereafter was as follows:-
“Yes, I started talking to Mr Mulholland because I was good friends with Mr Mulholland and I pointed out I was very upset about this, but he said that is what he had to do and he said if you get a certificate that you can work you can commence again”.
Subsequent evidence revealed that “work” meant full duties not alternative selected duties.
Mr Mulhollland gave no evidence in the proceedings nor did the only other person present, a Julian Sligar, who the applicant described as “Mr Mulholland’s junior”. That being so, the Applicant’s version of what occurred at that meeting must be accepted.
There is no evidence the Applicant received any notice, or payment in lieu of notice, thus section 170DB was contravened. The reason given in exhibit ‘A’ for terminating Mr Harvey’s employment does not provide an exemption from giving notice under the Act. Serious misconduct is the only immunity from this requirement. Authority for this proposition can be found in the judgment of Wilcox CJ and Keely J in Liddell v Lemke (NI 200 of 1994) (unreported 15th December 1994).
Mr Ayton gave some evidence as to the background of the termination. He made the decision for dismissal and was the author of exhibit ‘A’ (letter of termination)
When asked the reason for dismissal, Mr Ayton gave evidence as follows:-
“Well Mr Harvey we found that he didn’t look like going back on his pre-injury job because of his medical records and from his rehab selected alternative duties it did not matter what we gave he had certain difficulties in performing these tasks”.
As part of the Respondent’s case Mr Christopher John Pilson was called to give evidence. His occupation was described as an Occupational First Aid Officer. From January 1994 he was appointed the rehabilitation co-ordinator for the applicant. This was described by him as being “the liaison between the I.R.S and the particular section Lance would be going to work in”.
Part of Mr Pilson’s evidence was the Applicant’s progress in work related tasks recommended by the rehabilitation provider.
When asked in cross-examination
“and that as time went by until Lance was dismissed in April there was a gradual increase of the work he was doing and his exposure and length of time?” His response was “in some cases, yes”.
He was then asked:-
“But it is fair to say that there was an improvement in certain tasks?”
Mr Pilson’s answer was:-
“Yes, I would - I would say so, without going back to the files but yes”.
It is clear this witness was a pivotal person in the applicants rehabilitation procedures, but his advice and assistance were not sought on the question of terminating the applicant. He was not party to any discussions between other officers of the abattoir on this subject. This must cast some doubts on Mr Aytons evidence as to his knowledge of how the applicant was performing his selected alternative duties.
Mr Pilson was also present at a worksite assessment conducted by the I.R.S on 28 June 1994 in relation to the applicant (Mr Ayton was also there). The purpose of this proceeding was for the applicant to identify the duties he would be capable of performing and these tasks were to be assessed by the provider, as the ultimate arbiter.
A report of the I.R.S issued on 25 July 1994 under that hand of Ms Louise Wood. This document became exhibit ‘5’. It contained Ms Woods opinion of those tasks she deemed capable of performance by the applicant.
Mr Pilson (who had obviously read the report) agreed under cross examination that it takes only into account the slaughtering operational part of the abattoirs. He also concurred with the proposition there were a lot more jobs done at the abattoirs by various people not covered by the report. This evidence was ultimately very important in the decision to reinstate the Applicant.
Notwithstanding these omissions, even Ms Woods does not rule out the applicant being able to perform some pre-injury tasks. Two are described as “possibly suitable, one as being suitable” however not always available.
In paragraph 16 of his affidavit, the applicant reports:-
“In the days leading up to my dismissal I was engaged in hunting up cattle and I had no difficulty in undertaking that task”
Other tasks he could perform with minimal discomfort only - not “difficulty” as Mr Ayton alleges. He “would have a go at any job” were words he used in evidence.
Regarding the question of the Applicant’s dismissal Mr Ayton gave evidence, that he instructed Mr Mulholland to contact the Blayney Abattoirs Workers Compensation Employers to ascertain if the company would be penalised if Mr Harvey were dismissed and upon a negative answer had been communicated, steps were put in place to bring to an end to the Applicant’s employment at the abattoirs on 26 April 1994.
Mr Ayton told Mr Mulholland “I’ve decided Lance can’t stay”.
REINSTATEMENT
The Applicant seeks reinstatement to the position he occupied prior to the termination of his employment
Section 170EE requires the Court to first consider whether re-instatement is impracticable. However, it must be remembered the decision of the Court in Graham Foxcroft v The Ink Group Pty Ltd (No. NI 447 of 1994) (unreported 14th October 1994) Wilcox C.J. said at page 6:-
“Especially since the June 1994 amendments to Part VIA of the Act which substituted a new s. 170EE the legislative emphasis has been on reinstatement of unlawfully terminated employees.
Compensation may be awarded if the Court is of the opinion that reinstatement of the employee is impractical. Established authority on this point is to be found in Ian Samual McGregor Nicholson v Heaven and Earth Gallery Pty Ltd (No. NI 27 of 1994) (unreported 10th September 1994).
It fell from Wilcox C.J. at page 25:-
“It is important to note Parliament stopped short of requiring that for general compensation to be available, reinstatement be impossible. The word “impracticable” requires and permits the Court to take into account all the circumstance of the case, relating both to the employer and employee and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments or seriously affect productivity or harmony within the employers business it may be impracticable to order reinstatement not withstanding that the job remains available”
I take cognnizance of the Chief Justice remarks.
In my opinion the reinstatement of the applicant is not impracticable.
Whilst, Mr Ayton said in evidence there were no jobs available as at 16th December 1994, it is not clear whether he was referring to the applicants pre accident position as a no 4 pig slaughterman or his position of performing various work related tasks in the selected alternative duties area. It could not have been the former because of what Mr Mulholland said to the Applicant when he said “I have to let you go”. Apropos of this Mr Mulholland went on to say to the effect “if you can get a certificate you can work you can commence again”. This predicates a full duty position would be available to Applicant on complete recovery.
As to Mr Aytons assertion that there were no jobs available I simply do not accept that. In a large establishment employing over six hundred persons there is always something to be done which would comply with the selected alternative duties recommended by the I.R.S. and otherwise. Certainly lack of any available work was not given as one of the reasons for dismissing the Applicant. On the evidence, there are tasks the Applicant can perform and they are available. Well it might be that the leaks are now rectified, but this was but one of many duties requiring attention at this slaughtering establishment.
This Applicant, who was injured in the course of his employment not when out on a frolic of his own, merely asks the Court to order that he be put in the position he occupied on 26th April last and order that the Respondent pay to him any monies he has lost by the termination of his employment.
No evidence has been led that other employees would have difficulties working with the Applicant. Mr Mulholland, he regards as a friend and Mr Pilson, in giving evidence made concessions in the Applicant’s favour whilst giving evidence for the Respondent. Thus an inference can be drawn that he is well disposed towards Mr Harvey.
Mr Ayton appears to be the rub. However, there is no evidence to suggest that in the past they did not conduct their working relationship with cordiality One exception to this may have been when the Applicant was a party to an industrial dispute on the plant and was sacked for his participation, though ultimately reinstated. This single incident does not mean Mr Harvey’s reinstatement is impractical. There is no evidence to this effect, but considering their respective positions, one would not expect much interaction between the two.
OBLIGATIONS ARISING UNDER PART VIA OF THE INDUSTRIAL RELATIONS ACT (“THE ACT” ) AND THOSE IMPOSED UNDER THE NEW SOUTH WALES COMPENSATION ACT (“THE NSW LEGISLATION”)
It is indubitable these two pieces of legislation refer to different subject matter and impose conflicting obligations on employers.
Under the New South Wales legislation an employer attracts no sanction for terminating an employee in the circumstances under review. Any duties and obligations under that legislation are independent of any arising under the Act. Part VIA Division 3 of the Act (of which section 170EB forms part), together with the provisions of the Convention and Recommendation, impose a number of quite specific obligations on an employer to provide fairness before terminating an employee’s employment, in respect of which the New South Wales legislation is silent.
EXHIBITS 7, 8 & 9
The medical certificates were tendered as part of the Respondents case, which became exhibits ‘7, 8 & 9’ respectively. They were issued by the applicant’s treating doctor (Langsford) after 26 April 1994. Their certification was to the effect that the applicant would be unfit for work from 27th April 1994 until 30th January 1995.
Mr Shehadie, on behalf of the Respondent, submitted that a reading of those exhibits indicated that the applicant was totally unfit for work ie even for selected alternate duties. I cannot agree with that submission.
So far as exhibits 7, 8 & 9 are concerned, I am not satisfied on the balance of probabilities that Dr Langsford’s opinion was that the applicant was unfit for his pre-accident employment as a number 4 pig slaughterman or that he was not fit for all duties at the abattoirs, including the selected alternate duties which he was performing “quite well” at the time his services were terminated. Therefore, I made no finding in relation to the three certificates under scrutiny.
FINDINGS
Section 170DE (1) of the Act provides:-
“An employer must not terminate an employees employment unless there is a valid reason or valid reasons connected with the employees capacity or conduct based on the operation requirements of the undertaking establishment or service”.
It is the employee’s capacity is under review in this matter.
There is evidence before the Court that the Applicant did all in his power to bring about the resolution of his symptoms. He was most keen to resume his state of health and his former position at work.
For reasons to which I have already adverted I do not consider the reasons set out in exhibit ‘A’ or those grounds particularized in paragraph 21 sub paragraphs a to g as being valid reasons for the termination of the Applicant’s employment with the respondent and the termination was in breach of s. 170DE of the Act and thus unlawful.
Furthermore I regard the Respondent’s action of bringing to an end its working relationship with the Applicant in the circumstances of his not having finished the rehabilitation programme devised for him as harsh, unjust and unreasonable.
Section 170DE (1) imposes a high and serious obligations on the employer.
Included in the meaning of harsh must be an implication that consideration ought to be given to the effect of the termination on the Applicant.
Mr Harvey lost the benefits of rehabilitation and the progress he had already made was rendered nugatory.
The opportunities for him to obtain similar employment are extremely limited at this point in time.
All these are relevant considerations and must weigh heavily in the scale.
As to the meaning of harsh, unjust, unreasonable authority is to be found in this regard in Bostik (Australia) Pty Ltd v Gorgevski (I) (1992) 41 IR 452 as per Sheppard and Heery JJ at 459:-
“These are ordinary non technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a Court must decide whether the decision of the employer to dismiss was viewed objectively, harsh unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employee. Any harsh effect on the individual employee is clearly relevant but not conclusive. Other matters have to be considered such as the gravity of the employees misconduct”.
Of course, there are no allegations of misconduct, grave or otherwise, made against the Applicant.
Subdivision B of Division 3 of the Act specifies the requirements for a lawful termination of employment. There are six limitations on the right to so terminate. First notice must be given as provided by s. 170DB. No notice was given the Applicant in this case.
Section 170DC provides that an employer must not terminate an employees employment related to the employees conduct or performance unless the employee has been given the opportunity to defend himself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity. After sixteen years of service with the Respondent, and being physically disadvantaged by dint of an accident for which the employer is liable, Mr Mulholland on the Respondent’s behalf, could reasonably have been expected to afford the Applicant the right to defend himself.
Wilcox C.J. and Keely J., commenting on this requirement in Liddel v Lemke had this to say:-
“It will be seen that the section introduces the concept of procedural fairness into statutory employment law. Employees (other than excluded employees) now have a legal right to be treated fairly. If an employee is denied procedural fairness, it will be generally unlawful to dismiss him or her even for serious misconduct or significant deficiencies”.
The Applicant was not an excluded employee and he was denied fairness, thus rendering his dismissal unjust.
In this case, the Applicant was not given the opportunity to discuss with Mr Mulholland why he should not be dismissed, as the authorities require. It was Mr Mulholland’s obligation to directly put to the Applicant that he was about to be dismissed and to give the Applicant an opportunity to discuss it with him. Maybe the Applicant could have put a case which would have persuaded Mr Mulholland to take it to Mr Ayton, whose instructions he was following.
Part VIA of the Act gives effect in part to the Termination of Employment Convention. In fact the entire Part is intended to reflect that Convention and Recommendaiton - schedules 10 and 11 of the Act respectively. Thus Division 3 of Part VIA when read with that Recommendation accompanying the Convention, introduces a strict regime of procedural fairness.
Clauses 7, 8 and 9 of the Recommendation to the Treaty are relevant to the present proceedings. They read as follows:-
“7.The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate warning.
8.The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.
9.A worker should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention, 1982 against allegations regarding his conduct or performance liable to result in the termination of his employment...”.
Nowhere does the evidence disclose that the Applicant was warned either orally or in writing, that he would have to “lift his game” or be terminated. Again a denial by the Respondent of proceedural fainess.
_____________________________________________
I certify that this and the proceeding twelve (12) pages are a true copy of the Reasons for Judgment of Judicial Registrar Locke.
Associate: Jeynelle Moffat
______________
Date signed: 20 February 1995
Solicitors for the Applicant: McIntosh McPhillany
Counsel: Mr Giagios
Solicitor for the Respondent: Mr Shehadie
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