Lewis and Australian MAustralian National UniversityFACTURING Workers Union v Rosenbaum

[1996] IRCA 294

DECISION NO:  294/96 

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination for VALID REASON of CONDUCT AND PERFORMANCE - whether TEMPORARY ABSENCE on account of ILLNESS - whether HARSH UNJUST OR UNREASONABLE

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170DC, 170DF(1)(a)

DELROY LEWIS and AUSTRALIAN MANUFACTURING WORKERS UNION v AHARON DAVID ROSENBAUM
VI 5629 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  2 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5629 of 1995

B E T W E E N:

Delroy LEWIS and
AUSTRALIAN MANUFACTURING WORKERS UNION
Applicants

A N D

Aharon David ROSENBAUM
Respondent

MINUTES OF ORDER

2 July 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5629 of 1995

B E T W E E N:

Delroy LEWIS and
AUSTRALIAN MANUFACTURING WORKERS UNION
Applicants

A N D

Aharon David ROSENBAUM
Respondent

REASONS FOR DECISION

2 July 1996     PARKINSON JR

The applicant was employed by the respondent as a printer at its printing business in South Melbourne.  He was employed from 1994 to the date of termination of employment on 25 October 1995.  The applicant performed printing duties and was generally responsible for the operation of a printing press and for the ordering and maintaining of stocks of inks and materials.  The evidence is that in April 1995 the applicant’s employment was terminated and he was reemployed shortly thereafter.  There was no evidence in these proceedings as to the circumstances of this termination of employment, and those circumstances do not form part of these proceedings.  There is evidence that an employment agreement was signed between the parties at or around this time setting out the terms of the applicant’s duties and obligations (exhibit R1).

On 4 July 1995 the applicant was provided with a warning as to his work performance and his conduct in the workplace.  This warning was provided in writing and is exhibit R2.  The applicant was warned as to his attitude towards other employees, particularly his supervisor, Mr Klein.  The evidence is that he was frequently abusive towards the supervisor, refused to take instructions from either his supervisor or the respondent, and was aggressive in his demeanour.  I accept this evidence.  A further warning letter (exhibit R3) was issued to the applicant on 2 August 1995 after an incident where the applicant gratuitously insulted a client of the respondent.  The applicant was warned for abusive language and rudeness together with work performance issues.  On 5 October 1995 a further warning letter was issued to the applicant as a result of his conduct in the workplace directed at Mr Klein.  In the letter the applicant is warned for physically threatening Mr Klein.  That letter is Exhibit R4.  The applicant was informed in this warning letter that any further unsatisfactory behaviour would be grounds for instant dismissal. 

I am satisfied that the applicant received the warning letters and advice from the respondent.  I accept the evidence of the respondent and Mr Klein as to the meeting with Mr Colebrook of the union and the discussion at that meeting as to the various warnings given to the applicant.

On 19 October 1995 the respondent wrote to the applicant seeking an explanation for his absence from work on 3 October 1995.  The circumstances of that absence were that the applicant had advised Mr Klein of a dental appointment and his need to be absent from work on that day as a consequence.  The applicant did not attend the dentist and Mr Klein became aware of this fact when the applicant advised him on the next working day, Thursday 5 October, that he would require additional time off work to attend the dentist.  I accept that when queried by Mr Klein as to where he had been on the day he was meant to be at the dentist, the applicant refused to provide an explanation as to his whereabouts and informed Mr Klein that it was none of his business.

On 5 October the applicant was refused additional time off for the following day by Mrs Rosenbaum.  He left the premises at approximately 2.00 pm that afternoon.  He explained that this was because, as a result of the conversation with Mrs Rosenbaum, he felt ill.  After leaving the workplace on this day the applicant was also absent from work on Friday 6 October 1995.

On 18 October the respondent’s premises reopened after having been closed from Friday 6 October for religious observance.  On 18 or 19 October 1995 the applicant returned to the premises for a short time to collect his pay.  On that attendance the applicant brought with him a letter from his treating doctor, a Dr Wood.  In that letter advice was given to the respondent as to the nature of the applicant’s illness.  The letter from the Dr Wood certifies for absences between 17 to 28 October 1995 (Exhibit R6).  Apparently in existence at the time was a further doctor’s certificate dated 13 October 1995, certifying for an absence on 6 October 1995 (Exhibit A3) and another certificate also dated 13 October 1995 certifying for absences on 3, 5 and again 6 October 1995( Exhibit A2).  I am satisfied, however, that as at 18 or 19 October the applicant had not provided the respondent with any doctors’ certificates certifying the absence for illness of the applicant on the 3 October 1995.  In this regard I prefer the evidence of Mrs Rosenbaum as to the documentation she was provided with by the applicant.  Mrs Rosenbaum was able to recall with some specificity the nature of the documents to which she was referring in her conversations with insurers at a later date.  It was in this context that she was able to remember being or not being provided with such certification.  I accept her evidence.

At the workplace on 18 or 19 October there was a dispute between the applicant and the respondent as to the amount of wages he was to receive.  The applicant sat down on the floor and refused to move.  The police were ultimately called.  The applicant left the premises voluntarily.. On 19 October 1995 the warning letter was issued seeking an explanation for the absence on 3 October 1995.  No reply was received from the applicant.  The applicant was unable to recall whether he had responded to that letter.  I accept the evidence of the respondent and the respondent’s witnesses that the applicant did not respond.  I am satisfied that there was no further communication between the applicant and the respondent until after the date of termination of the employment when, on 26 October 1995, a certificate referable to the absence on 3 October 1995, together with a workcover claim, was provided to the respondent. In these proceedings all parties were vague as to the actual dates upon which various documents were provided or received.  However, I am satisfied that the workcover documentation, the dates contained therein and the evidence as to the timing of its receipt, establishes that the certificate for absence on 3 October was not received until after the date of the termination of the employment.

On 25 October 1995 a letter was sent to the applicant advising that his employment was terminated. The written reason given for the termination of employment was that he absented himself from work on 3 October without explanation. I am satisfied that this absence together with the circumstances surrounding the absence set out above, was the reason for the termination of the employment. Save for the operation of s170DF(1)(a) I am satisfied that the respondent had valid reason for the termination of the employment. I turn now to consider the matters raised pursuant to s170DF(1)(a) of the Act.

It is appropriate to set out s170DF(1)(a) in full. That section provides:

(1)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.

Regulation 30D is also relevant in any consideration of the operation of s170DF(1)(a). That regulation provides:

30D(1)          This regulation applies for the purpose of clarifying, consistently with paragraph 2 of Article 6 of the Termination of Employment Convention and section 170CB of the Act, circumstances which are, or are not, intended to be included within paragraph 170DF(1)(a) of the Act.

30D(2)          For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness or injury is taken to be a temporary absence if, due to the illness or injury, the employee is on authorised leave.

30D(3)          For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness or injury (not being an absence to which subregulation (2) applies) is taken to be a temporary absence if the employee:
           (a)      is required by the terms of an award or order of a court or      tribunal that has power to fix wages and other terms and   conditions of employment, or an agreement certified or approved      by such a body, to:

(i)       notify the employer of an absence from work; and

(ii)      substantiate the reason for the absence; and
           (b) complies with those terms.

30D(4)          For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness of injury, not being an absence:
           (a)      to which subregulation (2) applies; or
           (b)       of a kind to which the terms mentioned in paragraph   (3)(a) apply;

is taken to be a temporary absence if the employee complies with     subregulation (5) and, if applicable, subregulation (7) in relation to the absence.

30D(5)          Within 24 hours after the commencement of an absence from work referred to in subregulation (4), or within such longer period as is reasonable in the circumstances, the employee must:
           (a)      obtain a certificate, signed by a medical practitioner, that      states that the employee is unable to work during the period of the          absence (other than such part of the period as might reasonably      have expired before the certificate could be obtained); and
           (b)      give the certificate, together with the information on the        likely duration of the absence, to the employer.

30D(6)...
30D(7)...
30D(8)          Subsection 170DF(1) of the Act and this regulation do not prevent an absence from work referred to in paragraph 170DF(1)(a) of the Act from being a reason for terminating an employee’s employment if:
           (a)      in the case of an absence referred to in subregulation (3),      the employee does not comply with the terms mentioned in        paragraph (3)(a); or
           (b)      in the case of an absence referred to in subregulation (4),      the employee fails to comply with subregulation (5) or (7); or
           (c)      in the case of an absence ( not being an absence to which      subregulation (2) applies), the duration of the illness or injury is such that it would not be harsh, unjust or unreasonable in the            circumstances to terminate the employee’s employment.

The evidence in this case is that the applicant suffered from a diagnosed mental illness. The applicant contended that the actual diagnosis made by the treating specialist was not correct, however his evidence was that he was unwell in the latter stages of the employment and that it was his absence from work on account of illness which had resulted in the termination of his employment by the respondent. The applicant contended that part of the reason for the termination of the employment was a reason proscribed by s170DF(1)(a) of the Act. In so far as this is argued it is put on the basis that the termination of employment occurred in the course of the applicant’s absence on account of illness and was stated to be because of the unexplained absence on 3 October 1995, which in turn the applicant establishes was due to illness. Save for some medical certificates and some medical reports discussing the broad nature of the applicant’s illness, there was no substantive medical evidence which would indicate length or prognosis for the applicant’s condition.

For s170DF(1)(a) to apply to the absence, the criteria set out in Regulation 30D must have been met. The absence must be temporary in the sense that the applicant was absent on authorised leave. For the absence to be “authorised leave”, the absence must be in accordance with an entitlement to sick or other leave, or otherwise authorised by industrial authority. There was no evidence or submission in these proceedings as to there being an award in operation governing the manner in which absences were to be reported, or certified or otherwise authorised.

In so far as there is no award prescription, regulation 30D provides that the applicant’s absence must be the subject of medical certification provided within 24 hours of the absence or within such other reasonable period. There was no certificate provided by the applicant in respect of the absence from work on 3 October 1995 until 26 October 1995. The medical certificate was provided after the date of the termination of employment. I am satisfied that the medical certificate was not provided within a reasonable period. On the date of the absence on 3 October 1995 the applicant was not on authorised leave in the sense prescribed by Regulation 30D. His absence, whilst it may have been on account of illness or injury, was not an absence of the type contemplated by s170DF(1)(a) or Regulation 30D. For that reason I am satisfied that the termination of employment does not contravene that section of the Act.

There is however a further reason why I am so satisfied.  That is because I am satisfied on the evidence of the respondent that the fact of the absence for illness was not a reason or part of the reason why the employment was terminated.  The reason for the termination of the employment was the fact that there was an absence which had not been explained as being for illness.  In the circumstances of the employment, and in view of the history of the applicant’s conduct in the workplace, it was not unreasonable for the respondent to form the view that the applicant was misleading him as to the reason for his absence.  I am satisfied that the termination of the employment occurred in circumstances where the respondent had frequently been faced with unexplained absences on the part of the applicant and where on occasions it was revealed that his stated reason for absence was not the true reason.  There is no doubt that the applicant was ill during the course of the employment and it is likely the illness itself contributed to the regular absences from work, but the illness itself did not form part of the reason for the termination of the employment.  The reason for the termination of employment was that the respondent did not believe the applicant had accounted for the absence as being on account of illness.

I turn now to consider the operation of s170DE(2) of the Act. The applicant had been involved in a number of incidents in the workplace over a significant period of the employment. In each of these incidents his conduct was called into question by the respondent. The warning letters exhibited in the proceedings are evidence of this conduct, but I am satisfied that these incidents were not isolated but were some of many incidents of misconduct on the part of the applicant. I am satisfied that the respondent was tolerant of the applicant’s conduct in the workplace and that it continued to be tolerant for a long period of time. In the circumstances, I am not satisfied that the penalty imposed of terminating the employment was harsh or unreasonable.

As to the operation of s170DC of the Act, I am satisfied that the respondent by the letter of 19 October 1995 gave the applicant a sufficient opportunity to take steps to explain the absence and the conduct surrounding that absence. Further, the letter put the applicant on notice as to the potential consequences for the employment. I am satisfied that the respondent in the circumstances gave the applicant an adequate opportunity to be heard in relation to the concerns as to the applicant’s conduct. I am not satisfied that there has been a failure to comply with the requirements of s170DC of the Act.

For the reasons set out above the application made pursuant to s170EA of the Act will be dismissed.

I certify that this and the preceding eight (8) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  2 July 1996

APPEARANCES

Solicitors for the applicant:  Ryan Carlisle Thomas
Counsel appearing for the applicant:  Ms J Patrick

Representatives for the respondent:  Australian Chamber of   Manufactures           
Counsel appearing for the respondent:  Ms A Nordlinger

Dates of hearing:  17 April 1996 and 14   June 1996