Maria Gorete Goncalves Fernandes v Comgroup Supplies Pty Ltd
[1995] IRCA 656
•11 December 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether termination or RESIGNATION - TERMINATION OF EMPLOYMENT at the initiative of the employer - whether VALID REASON - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 Ss 170CB, 170DE(1)(2), 170EA, 170EDA, 170EE(2)(3)
WORKERS' COMPENSATION AND REHABILITATION ACT (WESTERN AUSTRALIA) S 84AA
Winter v Australian National Hotels Pty Ltd, unreported, IRCA No. 330/95, Lee J, 22 June 1995
Grout v Gunnedah Shire Council (1994) 125 ALR 355
Siagian v Sanel Pty Ltd (1994) 122 ALR 333
APESMA v Skilled Engineering (1994) 122 ALR 471
Boyd v Godfrey Hirst Australia Pty Ltd and Boyd v Tybar Engineering Pty Ltd, unreported, IRCA No. 14/95, Staindl JR, 30 January 1995
AWU-FIME Amalgamated Union & Farrell v Conagra Wool Pty Ltd (1995)
AILR 3-015
Connally v Malifind Pty Ltd, unreported, IRCA No. 62/95, Murphy JR, 1 March 1995
Liddell v Lembke (1994) 127 ALR 342
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233
Aitken v CMETSWUA - WA Branch, unreported, IRCA No. 352/95, Lee J, 7 August 1995
MARIA GORETE GONCALVES FERNANDES -v- COMGROUP SUPPLIES PTY LTD - WI 95/1735
BEFORE: RITTER JR
PLACE: PERTH
DATE: 11 DECEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1735
BETWEEN: MARIA GORETE GONCALVES
FERNANDES
- Applicant
AND: COMGROUP SUPPLIES PTY LTD
- Respondent
BEFORE: RITTER JR
PLACE: PERTH
DATE: 11 DECEMBER 1995
MINUTE OF ORDER
THE COURT ORDERS THAT:
The respondent terminated the employment of the applicant in contravention of Section 170DE of the Industrial Relations Act.
The respondent pay to the applicant the sum of $10,664.16 in compensation pursuant to Section 170EE(2) of the Industrial Relations Act within 14 days of the date of this order.
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 )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1735
BETWEEN: MARIA GORETE GONCALVES
FERNANDES
- Applicant
AND: COMGROUP SUPPLIES PTY LTD
- Respondent
BEFORE: RITTER JR
PLACE: PERTH
DATE: 11 DECEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 ("the Act") for compensation arising out of the alleged termination of the employment of the applicant, by the respondent, in contravention of Division 3 of Part VIA of the Act. The applicant does not seek reinstatement.
The principle defence of the respondent was that the applicant's employment had not been terminated by the respondent, but the applicant had abandoned her employment and in effect resigned.
THE FACTS
Many of the background facts were agreed between the parties. Prior to the hearing a summary of facts was prepared by the respondent. This summary consisted of 63 numbered paragraphs setting out facts which the respondent alleged. The applicant then highlighted the numbers of each of the paragraphs which were agreed to. This document was then provided to the Court. In all, the applicant agreed with 40 of the 63 numbered paragraphs of the respondent's summary of facts.
In addition to the summary of facts, oral evidence was given. The applicant gave evidence on her own behalf and called Dr Rondo Bernardo and Ms Maria Quinn, in support of her case. Mr David Greaves, Mr Robert Genat, Mr Adrian Carmody, Mrs Violet Choppy and Ms Irene De Freitas gave evidence for the respondent. The applicant gave evidence through an interpreter. The respondent consented to this. The interpreter was Ms Quinn. Later in these reasons I will comment on the fact that Ms Quinn both gave evidence and acted as an interpreter at the trial.
In addition to the agreed facts, many of the background facts were not in dispute. The following is an outline of the facts.
The applicant commenced employment with the respondent on about 11 May 1993. The applicant was employed as a vegetable cutter. The respondent is involved with the supply of vegetables and salads to other businesses.
On 5 July 1994, the applicant slipped on a slippery floor at her employment. She suffered an injury to the left knee. The injury was the subject of a workers' compensation claim.
It was agreed that the applicant's employment with the respondent ceased on 23 March 1995. It was also agreed that between the date of her injury and 23 March 1995, there were only limited times when the applicant was fit for and attended at work. On 11 August 1994, Mr Genat, an orthopaedic surgeon, performed a lateral meniscectomy of the applicant's left knee. Prior to 11 August 1994, the applicant had only worked on a few days since her injury.
After the first operation performed by Mr Genat, the applicant remained unfit for work, as certified by medical practitioners, until 26 October 1994. The medical practitioners providing certification were Mr Genat and Dr Bernardo. Dr Bernardo is the applicant's general practitioner who referred her to Mr Genat.
On 26 October 1994, the applicant recommenced back at work on alternative light duties. She then commenced what was described during the hearing as the first period of rehabilitation. Prior to her return to work Mr Adrian Carmody of Excel Rehabilitation assessed the applicant for rehabilitation. It seems that Mr Carmody was engaged by or on behalf of the respondent. Mr Carmody met with the applicant, spoke to her doctors and physiotherapist and attempted to co-ordinate her return to work on light duties.
The applicant's first attempt at rehabilitation was unsuccessful. As of about mid November 1994, the applicant was again certified as totally unfit for work.
Mr Genat reviewed the applicant. He formed the view that a further operation was required. On 28 November 1994 he removed the residue of the meniscus of her left knee. He explained that in the first operation he had attempted to preserve some of the meniscus, however, upon review, that residue was unstable and mobile. He therefore removed the posterior meniscus on 28 November 1994. Mr Genat said that he thought that normally a person who had undergone the operation that he performed on the applicant on 28 November 1994 would recover within six weeks of the operation. On 9 December 1994 Mr Genat wrote to Dr Bernardo (Exhibit 5) stating that at that time the applicant remained completely unfit for work. He reviewed the applicant on 23 December 1994 and 9 January 1995. On 9 January 1995 he again wrote to Dr Bernardo (Exhibit 4) and certified the applicant as remaining completely unfit for work until 29 January 1995. He stated that, "I think that after that she should at least be able to carry out light duties on a part time basis (to start with)".
Mr Genat advised Dr Bernardo in this letter that he was going to be away at the end of January for a few weeks. He asked Dr Bernardo whether he could review the applicant at that time and said he would see the applicant again on his return in March 1995.
On 18 January 1995 the applicant was diagnosed as totally unfit for work for two weeks by Dr Bernardo. However, he was of the opinion that the applicant could start a light alternative work programme under supervision on Monday 30 January 1995. The applicant then commenced her second rehabilitation programme. This lasted until 13 February 1995. During this rehabilitation attempt, whilst it seems that the applicant attended for work each day, she did not on any day complete the hours set for her. She said that at times there would be no more work which she was able to do and she received permission to leave and go home. On other occasions, because of problems she was having with her knee, she again requested permission to go home and did so. In her evidence the applicant described that the main problems with her knee at this time were soreness and swelling.
On 14 February 1995 the applicant was again diagnosed as totally unfit for work for one week by Dr Bernardo. He indicated that her situation was not improving overall.
On 7 March 1995 the applicant was reviewed by Mr Genat. He certified the applicant as remaining totally unfit for work for a further week. After that he certified her as being capable of a return to light duties on a part time basis from 13 March 1995. In his report to Dr Bernardo after the 7 March review, Mr Genat also confirmed that he asked the applicant to contact her rehabilitation team concerning her return to work.
It is common ground that after various consultations and meetings, it was agreed that the applicant would return to work on 23 March 1995 on light duties.
It is common ground that on 22 March 1995 there was a meeting attended by the applicant, Mr Carmody, Mr Greaves (the Manager of Comgroup) and Ms Quinn, the interpreter. The purpose of the meeting was to discuss the applicant's return to work.
The applicant does not have a good command of English and as stated above, gave her evidence at the trial through an interpreter. The applicant speaks Portuguese. Neither Mr Carmody nor Mr Greaves speaks Portuguese. The interpreter who was present at the meeting, Ms Quinn, is an accredited level 3 interpreter with ten years' professional experience in interpreting English and Portuguese. As stated above, Ms Quinn was the interpreter who interpreted the applicant's evidence at the trial. At the time when Ms Quinn was sworn in as an interpreter, I did not know that she had interpreted at a meeting which was relevant to the hearing and the subject of dispute. In general, I consider that it is not desirable for an interpreter to interpret for a witness, when the interpreter has previously interpreted for the witness at a meeting relevant to the proceedings. There was, however, no objection to Ms Quinn interpreting for the applicant at the trial.
As mentioned above, Ms Quinn was called as a witness by the applicant. I also regard it as generally undesirable for an interpreter at a trial to also be called as a witness. I was not aware of the fact that the applicant intended to call Ms Quinn as a witness when she was sworn in as the applicant's interpreter. Indeed, I do not think that Mr Melville, for the applicant, did intend to call Ms Quinn as a witness at that time. Further, the applicant called Ms Quinn not for the purpose of giving evidence about the facts but for the purpose of providing evidence in the nature of expert evidence as to the degree of difficulty in interpreting from English to Portuguese. This issue was relevant to a meeting that took place on 23 March 1995. Ms Quinn was not cross examined by the respondent.
The respondent sought to adduce evidence through Mr Greaves and Mr Carmody of what was said at the meeting with the applicant on 22 March 1995. This evidence was objected to in so far as it purported to convey what the applicant had said at the meeting on 22 March 1995. The basis of the objection was that the only evidence that Mr Greaves and Mr Carmody could give of what the applicant had told them at the meeting was what they had been informed by Ms Quinn. It was argued that this evidence was hearsay and that Ms Quinn had not been asked about the contents of the conversation by the respondent's representative when she had given evidence.
I allowed both Mr Greaves and Mr Carmody to give evidence of what they said Ms Quinn said that the applicant had said during the meeting. This evidence was allowed on the basis that it was relevant to the issue of the actions taken by Mr Greaves on 23 March 1995. However, I did not then rule on the question of the admissibility of the evidence for the purpose of establishing what the applicant said at the meeting on 22 March 1995. I received further submissions on this issue in the closing addresses.
I find that the evidence of Mr Greaves and Mr Carmody as to what Ms Quinn told them that the applicant had said at the meeting on 22 March 1995, is inadmissible to establish the truth of what the applicant said at this meeting; see Section 59 of the Evidence Act 1995 (Commonwealth) and Cross on Evidence loose leaf Australian edition paragraph [33805]. As stated at paragraph [33805] of Cross, the situation may well have been different if Ms Quinn had been asked whether she had interpreted correctly what was said by the applicant at the meeting. However, she was not. As will be seen from the balance of my reasons, I do not regard the failure of the respondent to prove the accurate translation of what was said by the applicant to Ms Quinn and then to Mr Greaves and Mr Carmody and vice versa, at the meeting on 22 March 1995 as crucial in the determination of this matter.
As the evidence given about the meeting on 22 March 1995 is relevant for other purposes, as set out above, I set out a summary of the evidence given about the meeting.
In her evidence in chief, the applicant simply said that there was a meeting on 22 March 1995 in which the next rehabilitation programme was explained to her. She said that the meeting lasted about two hours and it was agreed that she would commence work the following day. She said that it was agreed that she would try to attend work for an eight hour day, although she would not work for the full eight hours. There would be time for work, rest and exercise. There would be a total of four work hours within the eight hour day. When cross examined the applicant confirmed that the components of her return to work programme were put to her in detail at the meeting on 22 March 1995. She was advised that she would have a clock at work to ensure that she knew the times that she worked, exercised and rested, that there would be a specially made stool for her to use, that there would be a transportable private room with a bed for her to rest in and that she was not to leave work without authorisation. She was also told that there was no productivity levels required of her. She was to assemble cardboard boxes and line them. She said that she did not recall Mr Greaves saying to her that if she left work without remaining there for eight hours and did not participate fully in the rehabilitation programme he would consider it a resignation of her position.
In his evidence, Mr Greaves said that there was raised at the meeting concerns about the applicant leaving her employment early. He said that he explained the implications of her leaving early when on her rehabilitation programme. He said that he explained to the applicant that if she accepted the rehabilitation programme as being suitable it would be binding and if she left her employment it would be taken as abandonment of her employment. He explained that this would be viewed as a resignation. He said that, through the interpreter, the applicant had agreed to this.
Mr Carmody in his evidence said that he recalled at the meeting that Mr Greaves asked the applicant whether she agreed to the tasks which were identified. Mr Carmody said that Mr Greaves said that if she did not accept the programme he would take it as a resignation on her behalf. Mr Carmody said that the applicant indicated through the interpreter that she would go ahead with the programme.
Mr Greaves said that he did not take any notes of the meeting on 22 March 1995. Mr Carmody said that he believed he did take some notes of the meeting but could not locate them on his file. However, Mr Carmody said in cross examination that he had a very distinct recollection of Mr Greaves telling the applicant that if she did not complete her duties on the rehabilitation programme this would be viewed as a resignation. He said that he recalled this because it was not a regular occurrence.
Although I have set out the evidence with respect to the meeting on 22 March 1995, I am of the view that it is the events that occurred on 23 March 1995 which are crucial in the determination of this matter.
The applicant in her evidence said that she arrived for work on 23 March 1995 as agreed. She said that her knee was swollen but that she was calm and relaxed, wanted to do her best at work and wanted to be at work rather than at home. She said that she worked until about 6.30 am when she did not feel very good. She went to the toilet and sat on the ground with her head in her hands. She said that she felt strange, then felt someone hold onto her as she fell backwards. She said that she did not see the person behind her but heard their voice. She thought the voice belonged to a woman called June who was also an employee. She said June helped sit her up and said that she would get some help for her. The applicant said that she returned to her workplace but did not feel well. The applicant said that she felt like she had no strength and that her arms were shaking. The applicant said that she spoke to her supervisor, Jim Martinelli. She said she asked Mr Martinelli if she could see a doctor and that he said that he would not be able to let her go. The applicant said that Mr Martinelli then said that he would contact Mr Greaves about the situation. Mr Martinelli was not called as a witness by either party.
A short time later, Mr Greaves arrived at work. It was then about 8.00 am. The applicant said that initially she just spoke to Mr Greaves. She said that in her "bad English" she said to him that she wanted to see a doctor but he left and obtained another employee, Ms Irene De Freitas, to attend at his office. Ms De Freitas is Portuguese and acted as an interpreter. The applicant said that Ms De Freitas said that Mr Greaves wanted to know what she wanted. She said that she told Ms De Freitas that she wanted to go to a doctor and go home. The applicant said that Ms De Freitas then said that Mr Greaves said that if she went to see a doctor there would be no more work for her in the company. The applicant said that she replied that her health came first, that she had to see a doctor and that they could not forbid her from doing that. The applicant said that Mr Greaves' response, via Ms De Freitas, was that the insurance company would make a payment to her but there would be no more work for her. The applicant said that she told Mr Greaves that she did not want money but just wanted her knee back the way it was before. She said that Mr Greaves, via Ms De Freitas, said he understood but could not help. Mr Greaves then said that she could go and someone took her home. It was common ground that the applicant has not returned to the employment of the respondent.
The applicant made an appointment to see Dr Bernardo later that day. When she saw Dr Bernardo he had a look at her head and took her blood pressure and gave her a certificate for two days off work. The certificate became Exhibit 2. The document, which was signed by Dr Bernardo, certifies that the applicant was unfit for work for a period of two days from 23 March 1995. Written on the certificate in Dr Bernardo's handwriting is, "Dizziness for investigation". The applicant admitted that she did not provide this document to the respondent at any material time. However, she said in effect that she did not think she had to because this was not to do with work. I infer that she said this because she thought that she had been terminated by Mr Greaves and that her symptoms were not related to her workers' compensation case. I accept that the reason for not providing the medical certificate was a genuinely held one.
In cross examination, the applicant confirmed that June and then Violet Choppy saw her in the toilet on the morning of 23 March 1995. The applicant agreed that she had a conversation with Violet Choppy. Mrs Choppy does not speak Portuguese however. The applicant said that she told Mrs Choppy she was not feeling well and that she had hit her head, in her "bad English".
In her evidence, Mrs Choppy said that she was a supervisor of the salad section at Comgroup. When the applicant came to work on 23 March 1995 she was involved in giving the applicant work to do. She said that about an hour later one of the girls came to her and said that the applicant was on the floor in the ladies' toilet. She said that she went to see the applicant. She simply asked the applicant what was the matter. She said that the applicant said she wanted to go home. She said that she explained to the applicant that she could not as she had to do four hours' work. She said that she would have to call the supervisor, Mr Martinelli. She said that Mr Martinelli then phoned Mr Greaves. Mrs Choppy said that at no time did the applicant tell her that she was dizzy or that she had fainted or that she wanted to see a doctor. However, I do not place any great weight on the evidence of Mrs Choppy. This is because Mrs Choppy could not speak Portuguese and so therefore the conversation was in English. I am satisfied from the evidence and from observing the applicant in the witness box that she has an insufficiently strong grasp of the English language to be able to properly communicate with a non-Portuguese speaking person.
Mr Greaves, in his evidence, said that he was at home in bed when he received a telephone call from Mr Martinelli at approximately 7.25 am on 23 March 1995. He said that he was advised by Mr Martinelli that the applicant wanted to go home. Mr Martinelli asked Mr Greaves to come to work. Mr Greaves left for work immediately. He said that he arrived there at about 7.55 am. Mr Greaves said that he saw the applicant in the lunch room and then unlocked his office. He said that he sought to have Irene De Freitas present to interpret. Mr Greaves said that Ms De Freitas commonly interprets for Portuguese employees of the respondent. He said that he explained to Ms De Freitas that she was going to ask the applicant some questions and he needed Ms De Freitas to interpret them accurately. He said that Ms De Freitas agreed to this. Mr Greaves said that he explained to the applicant, via Ms De Freitas, that he was going to ask her if she wanted to go home and that if the answer was "yes" he would consider it an abandonment of her duties and a resignation of her position which he would accept. He then asked the applicant, via Ms De Freitas, whether she wanted to go home. Ms De Freitas then said that the answer was that she did, that her knee hurt, that she only wanted it better and wanted to go home. Mr Greaves said that he asked the applicant to remain seated and then arranged for someone to take her home. He said that he would pursue FAI with respect to her entitlements. These comments were also made through Ms De Freitas.
In cross examination Mr Greaves said that he definitely used the word "abandonment" in his conversation with the applicant on 23 March 1995. He said that he would have used this as he had been advised that this was the appropriate term to use. However, in cross examination he was shown some notes of the conversation which he wrote shortly after it took place. The notes did not mention use of the word "abandonment". Although the case does not turn on this issue, I find it difficult to accept that if Mr Greaves did use the word "abandonment" in the conversation and thought it was an important word to use, that he did not record it in his notes of the conversation made soon after it. Mr Greaves agreed that the broad effect of what he said he told Ms De Freitas to tell the applicant at the meeting was consistent with the applicant's evidence that if she left her workplace that day there would be no more work for her at the company. Mr Greaves agreed that on his version of the events he did not ask the applicant why she wanted to go home.
Mr Greaves also said that when he was first telephoned by Mr Martinelli and told that the applicant wanted to go home that he was very disappointed. He also said that he assumed that the applicant wanted to go home in connection with her knee injury. This is the likely reason why Mr Greaves, on his evidence, did not ask the applicant what was wrong or why she wanted to leave work. Mr Greaves also agreed that he was frustrated with the ongoing difficulties with the applicant's rehabilitation programmes. Mr Greaves said that if he was aware that the applicant wanted to see a doctor he would not have prevented this and would not have regarded this as an abandonment of her employment.
Ms De Freitas also gave evidence about the events of 23 March 1995. She confirmed that she acted as an interpreter in the conversation between the applicant and Mr Greaves. She said in her evidence that she was Portuguese and spoke fluent Portuguese. She said that she came to Australia when she was aged nine. She commenced her education in Portugal when aged seven and was fifteen when she left high school in Australia. She said that when she was in Australia she continued to study Portuguese until she was fourteen. Ms De Freitas is not a qualified interpreter but commonly interprets at the respondent's workplace.
With respect to 23 March 1995, Ms De Freitas said that she was asked to attend at the office of Mr Greaves to interpret for the applicant. She said that Mr Greaves asked her to tell the applicant exactly what he said. Mr Greaves then asked her to ask the applicant if she wanted to go home, which she did. The applicant said "yes". Ms De Freitas said that Mr Greaves then said that he considered that that was a resignation. She said that she explained this to the applicant who was crying and said that she would rather have her knee fixed. In cross examination, Ms De Freitas said that she did not recall whether the applicant said she wanted to see a doctor. Ms De Freitas said that she made no notes of the conversation at the time and that she did not regard the conversation as being anything out of the ordinary, because she was asked by Mr Greaves to interpret for him at work from time to time.
I am not confident that Ms De Freitas interpreted the conversation between Mr Greaves and the applicant with strict accuracy. Although I think that Ms De Freitas would have done her best to do this, she is not a qualified interpreter and from my observation of her in the witness box she did not appear to have a thorough grasp of the English language. Ms Quinn gave evidence that it can be difficult to interpret from English to Portuguese. Therefore, there may well be a difference between what both the applicant and Mr Greaves thought they were conveying to the other at the meeting on 23 March 1995 and what was actually conveyed to the other party by Ms De Freitas.
I accept the evidence of the applicant that she did suffer the symptoms complained of on 23 March 1995 and that she regarded these symptoms as being separate to the symptoms relating to her knee injury. I am satisfied the applicant was a truthful witness. I say this having regard to the substance of her evidence and the manner in which she gave it, albeit through the interpreter. I accept that the reason that the applicant wanted to leave her workplace on 23 March 1995 was so that she could see a doctor with regard to the symptoms experienced that day. The respondent raised the issue that the applicant said in her evidence that she was "shaking" at work on 23 March 1995 and yet Dr Barnardo's medical certificate records "dizziness". However, I do not regard this as a matter of any great weight concerning the reliability of the applicant's evidence of her symptoms. I find that Mr Greaves was wrong in his assumption that the applicant simply wanted to go home because of her knee injury. I also find that, so far as the applicant was aware, the choice was to remain at work with the symptoms she was suffering or go home and be no longer employed by the respondent. I also find that the applicant's view was, as she said in her evidence, that her health came first and that therefore she had to go home.
In my opinion, the respondent through Mr Greaves effectively terminated the employment of the applicant. In effect, Mr Greaves told the applicant that if she left work that day she would no longer be employed by the respondent. I accept that this is properly construed as being a termination at the initiative of the employer. The legal effect of these findings is set out later in my reasons.
My finding that the applicant genuinely had the symptoms that she complained of on 23 March 1995 is supported by the evidence of Dr Bernardo. Dr Bernardo saw the applicant on 23 March 1995. He said that he examined her that day. He provided the applicant with the certificate which became Exhibit 2, as referred to above. He confirmed that the certificate truly reflected his opinion that day. His opinion was that she was unfit for work for two days. Dr Bernardo said that in his opinion the symptoms that the applicant was suffering from on 23 March 1995 were separate from her knee injury. He said that on his examination of her she had fainted, although there was a need to exclude other more serious causes of her symptoms. He said that in the first instance she needed to rest for two days and this was why he had certified her as being unfit for work for that period of time. It is clear that Dr Bernardo accepted the applicant's presentation of symptoms on 23 March 1995 as genuine. Dr Bernardo is an experienced medical practitioner, having graduated in 1969 in Hong Kong. He has practiced in Western Australia since 1980. Dr Bernardo had been the applicant's general practitioner since 9 September 1992. He had seen her regularly since then. For example, he saw her on five occasions in 1994 prior to the applicant's knee injury at work. Due to all of this he would have been in a good position to assess whether the applicant's symptoms were genuine on 23 March 1995. Further, it is patent that he accepted them to be so.
In summary therefore, I find that the respondent did in effect terminate the applicant's employment. It did so because Mr Greaves did not appreciate that on 23 March 1995 the applicant was suffering from symptoms unrelated to her knee injury and wanted to see a doctor and that but for these symptoms the applicant would have been content to remain at work and continue her rehabilitation programme.
There are two other matters which were raised during the course of the hearing which I should comment upon.
The respondent claimed that the applicant did not do her best to participate in the rehabilitation programme and that her leaving work on 23 March 1995 was consistent with this. I do not accept that the applicant did not participate in the rehabilitation programmes to the best of her ability. The respondent raised a number of points in support of this proposition.
Firstly, it referred to the fact that other than for a few days not long after suffering her knee injury, at no time did the applicant stay at work for the full time period required. Whilst this may be so, Dr Bernardo and Mr Genat regularly reviewed the applicant and after she complained of symptoms at work causing her to be unable to stay the required hours at work, certified her as being unfit for work.
.Secondly, the respondent said that the applicant left work on occasions without advising her supervisor. However, this is answered by the evidence of the applicant that she always informed somebody at the office before leaving. Most often this was a person called Yvette. She said that Mr Carmody had told her to at least inform Yvette before she left the premises. Mr Carmody did not give any evidence to contradict this and Yvette was not called by the respondent. I accept that the applicant did inform someone before leaving work.
Thirdly, the respondent said that the applicant often left work claiming that she had pain in her knee and went home, and yet the applicant admitted that the pain was no worse at work than at home. However, this submission ignores the fact that the applicant could lie down at home and she explained that this relieved the pain in her knee. There was nowhere for the applicant to lie down at work other than from 23 March 1995 when a bed was provided.
Fourthly, the respondent pointed to evidence of a video tape of activities of the applicant. The video tape mainly showed her activities on 16 February 1995 and 25 February 1995. On 16 February 1995 the video showed Mrs Fernandes slowly walking with a limp. I find nothing in this part of the video to support the respondent's submissions. On 25 February 1995 it also shows the applicant walking with a limp. She is walking faster than on 16 February 1995 but this may be explained by the fact that she is walking with her children to catch a bus. She then sits down at the bus stop. She then stood for about ten minutes waiting for a bus. After getting off the bus she walked with a limp. She explained in her evidence that she was taking her children to catechism. She attended church while they did this. After attending church she stood and waited for the children for about 30 minutes whilst standing. Part of the time she was leaning on a wall. I did not see much, if anything, in this part of the video which affected my opinion about whether the applicant was participating in the rehabilitation programmes to the best of her ability. Mr Genat had seen the video prior to the hearing and saw some of the video whilst he gave evidence. Mr Genat said that he did not think that the video altered his opinion. This was that the applicant was showing some soreness but was fit for alternative duties. The other evidence of Mr Genat does not support the proposition that the applicant was not participating in the rehabilitation programme to the best of her ability. Mr Genat said that on 9 January 1995 when he reviewed the applicant that he would have expected her to have less pain than she exhibited, however, he queried whether he had dealt with the whole of the knee problem. He elaborated that there could have been a problem with the patella and this could be relevant to her pain. He also agreed in cross examination that the amount of pain that a person will complain of after operations like the ones he performed can vary from person to person.
Mr Genat said that when he examined the applicant on 7 March 1995 he thought her symptoms seemed a little exaggerated. He said this given that her knee looked like it was settling down and she had a full range of movements yet the applicant still complained of pain and a pronounced limp. I think that Mr Genat chose his words carefully when he said that the symptoms seemed a little exaggerated. He stopped short of an opinion that they were exaggerated. He also used the word "little". Further, this evidence of Mr Genat could not be used to support a proposition that the applicant did not participate in the rehabilitation programme to the best of her ability up to 7 March 1995. The only rehabilitation programme after that date was the one which commenced on 23 March 1995, which did not get off the ground before the applicant's employment was terminated.
Finally, the respondent referred to some evidence of Mr Carmody that he saw the applicant walking to her bus stop away from work during the February attempt at rehabilitation. He said that this was at about 7.30 in the morning. He said that he went to have a look at her time card and noted that she clocked off at 7.04 am. He estimated that she had walked about two kilometres in half an hour. He thought that she was walking without the same symptoms that he had detected when he had seen her on about 31 January 1995. This included walking with a severe limp and keeping her foot suspended in mid air so as to avoid putting pressure on it. Again, I am unpersuaded that the evidence of Mr Carmody supports the respondent's submission. The mere fact that the applicant may have been exhibiting greater symptoms during a meeting with Mr Carmody some two weeks earlier does not prove that she was not participating in the rehabilitation programmes to the best of her ability. Mr Genat, who viewed the video surveillance tape of the applicant when walking, remained of the view that she was only fit for light duties.
The applicant submitted that from an early stage in the rehabilitation of the applicant, the respondent was suspicious about the applicant's motives and that this coloured the approach of the respondent up to and including 23 March 1995. I think that this submission is an unduly harsh criticism of the employer and in particular of Mr Greaves. Whilst Mr Greaves admitted that he had concerns about the applicant's motivation for rehabilitation as early as 21 November 1995, I am of the view that the respondent did positively support the applicant's rehabilitation up to 23 March 1995. In particular, it took a number of measures on 23 March 1995 to try and ensure that the rehabilitation programme succeeded. This included allowing the applicant to work in the lunch room which was not as cold an area as other areas of the premises, providing an individual stool for the applicant, allowing her to lie down when required and not requiring any particular productivity levels of the applicant. Whilst Mr Greaves was becoming frustrated with the rehabilitation progress of the applicant, I find that he did genuinely try to support it up to 23 March 1995. It is therefore a pity that the respondent did not do more to clarify the position of the applicant on that date.
TERMINATION OF EMPLOYMENT
As stated above, the primary issue is whether the respondent terminated the employment of the applicant. The respondent contended that the applicant abandoned her duties and effectively resigned from her employment and that Section 170EA of the Act did not apply.
The expression, "termination of employment" is not defined in the Act for relevant purposes. However, Section 170CB of the Act states that an expression has the same meaning in Division 3 of Part VIA of the Act as in the Termination of Employment Convention 1982. Article 3 of the Convention states that the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer. For the reasons which I have set out above, I have found that the employer actually or constructively terminated the employment of the applicant. Accordingly, there has been a termination of employment at the initiative of the employer; see Winter v Australian National Hotels Pty Ltd, unreported, IRCA No. 330/95, Lee J, 22 June 1995.
As stated by Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 372,
"A principal purpose, if not the sole purpose, of Division 3 is to provide an employee with the right to seek a remedy in circumstances where the employee did not voluntarily leave the employment".
In this case the applicant did not voluntarily leave her employment. It was the respondent that terminated the employment relationship (to follow the approach of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at 351) or did an act terminating or purporting to terminate the employment (to follow the approach of Gray J in APESMA v Skilled Engineering (1994) 122 ALR 471 at 482). The respondent did this by ending the employment of, or the employment relationship with, the applicant when she left her workplace on 23 March 1995 to go home and attend her doctor because of the symptoms she was suffering on that date.
Mr Beros supported his submission that there was an abandonment of employment by reference to the decision of Boyd v Godfrey Hirst Australia Pty Ltd and Boyd v Tybar Engineering Pty Ltd, unreported, IRCA No.14/95, Staindl JR, 30 January 1995. However, as that decision illustrates, "for an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment" (page 6). The employee in this case evinced no such intention. All she wanted to do was leave her workplace on the day in question to go home and attend her doctor as she was unwell.
BREACH OF THE ACT
Pursuant to Section 170DE(1) of the Act an employer must not terminate an employee's employment unless there is a valid reason, connected with their capacity or conduct or based on the operational requirements of the employer. This section requires one to decide the reason or reasons why employment was terminated. In this case, the reason why the employment was terminated was because the applicant left her workplace on 23 March 1995.
Next, it is necessary to decide whether the reason for terminating employment was a valid reason. On the facts of this case, I do not think that the reason for terminating the employment of the applicant was a valid reason. The applicant was unwell at work and wanted to leave her place of employment to go home and to see a doctor. She did see a doctor that day who certified that she was totally unfit for work for that day and the following day. In those circumstances there was no valid reason for the termination of employment. It would at the very least be harsh, unjust or unreasonable to have terminated the employment. Given this, the reason for the termination of employment is not valid: Section 170DE(2) of the Act.
For reasons which are perhaps understandable, Mr Greaves misconceived the reason why the applicant wanted to leave the workplace on 23 March 1995. However, it remains the objective fact that the employment was terminated when the applicant left her workplace whilst she was unwell and wanted to go home and then attend her doctor. As stated by Parkinson JR in AWU-FIME Amalgamated Union & Farrell v Conagra Wool Pty Ltd (1995) AILR 3-015 at page 1055,
"The appropriate test of whether the termination was harsh, unjust or unreasonable is a question for this Court to determine objectively having regard to the evidence before it, and is not limited to the material which was before the employer at the time of the termination".
Accordingly, the Court can have regard to the real reason why the applicant left the workplace on 23 March 1995, even if this was not properly understood by Mr Greaves at the time.
I also think that the employer through Mr Greaves ought to have done more to clarify the position of the applicant at the meeting on 23 March 1995. Firstly, a qualified interpreter ought to have been present at the meeting. This was required because of the serious nature of the discussion then taking place. I note that a qualified interpreter was provided at the meeting on 22 March 1995. If it be the case that no qualified interpreter was available at the time of the meeting on 23 March, being at about 8.00 am, there is no reason why the conversation could not have been postponed until an interpreter could have been available. If there was going to be a lengthy delay until the interpreter was available, there is no reason why the respondent could not have allowed the applicant to leave and later clarified the reason why the applicant had felt the need to leave work. Secondly, Mr Greaves did not properly enquire of the applicant what was wrong with her and the reason why she wanted to leave the workplace. It seems that he did not do this because of his assumption that she wanted to leave because of matters related to her knee injury. Thirdly, there was evidence from Ms De Freitas that the applicant was crying during the conversation with Mr Greaves. It was also inappropriate to conclude the meeting with Mr Greaves accepting the actions of the applicant as an abandonment of her employment, whilst the applicant was in such an emotional state. Even if her actions could properly be construed as a resignation, a resignation in such circumstances may well have needed to have been clarified; see Connally v Malifind Pty Ltd, unreported, IRCA No. 62/95, Murphy JR, 1 March 1995.
For all of the above reasons I find that the employment of the applicant was terminated for other than a valid reason and therefore there has been a contravention of Section 170DE of the Act. In making this finding, I have borne in mind the onus of proof as set out under Section 170EDA of the Act.
Mr Melville also submitted that the termination of employment contravened Section 170DF(1)(a) of the Act. This provides that an employer must not terminate an employee's employment for the reason, or including the reason, that there is a temporary absence from work because of illness or injury. However, I am not satisfied that Section 170DF(1)(a) is applicable to this case. Parkinson JR considered this subsection in AWU-FIME Amalgamated Union and Farrell v Conagra Wool Pty Ltd, cited above. The Judicial Registrar said,
"S170DE(2)[sic 170DEA(2)] places upon the respondent the onus of proving, on the balance of probabilities, that the termination of the employment was not for the reason of temporary absence from work because of illness or injury or for reasons including that reason. The reason which is required to be ascertained is the reason which motivated the employer to terminate this employment and not merely the stated reason. The test is a subjective one. The fact that an employee may have been ill on the day under question does not of itself however establish that the termination was as a result of temporary absence because of illness or injury. This question is to be determined having regard to all the circumstances of the termination." (page 1054)
I agree with this approach. In this case, the reason which motivated the employer to terminate the employment was not the applicant's temporary absence through illness. The respondent remained ignorant of the illness. The employer terminated the employment because they thought the employee was abandoning her duties by going home. This is not sufficient to contravene Section 170DF(1)(a) of the Act. Viewed subjectively, the respondent did not terminate the employment for a reason which included temporary absence through illness.
REMEDY
It is clear from the provisions of Section 170EE of the Act that the primary remedy for unlawful termination is reinstatement. In his closing submissions, Mr Beros, for the respondent, informed me that should I find that there was an unlawful termination, the respondent would have no objection to a reinstatement order being made. The applicant did not give any evidence on the issue of the practicality of a reinstatement order. However, Mr Melville for the applicant took instructions from her as to her attitude to a reinstatement order being made so that he could inform the Court of the same. Mr Beros did not object to this procedure taking place. Mr Melville informed me that the applicant remained opposed to a reinstatement order being made. Three reasons were provided. These were:
Fears of victimisation by her employer.
The applicant felt that her fellow employees would, "laugh at her".
The applicant's husband did not wish her to return to the workplace of the respondent.
In addition to this, it should be added that the respondent conducted the hearing on the basis that the applicant had not attempted rehabilitation to the best of her ability and questioned the credibility of her evidence. These factors help to explain, I believe, the reasons that the applicant does not consider reinstatement to be desirable, as set out above.
The meaning of "impracticable" was considered by Wilcox CJ and Keely J in their joint judgment in Liddell v Lembke (1994) 127 ALR 342. Their Honours said that,
"Although 'impracticable' does not mean 'impossible', it means more than 'inconvenient' or 'difficult'." (page 360)
Further in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ stated that the word "impracticable",
"requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way". (page 244)
Taking this approach and having regard to that part of the joint judgment in Liddell v Lembke quoted above, I find that, on balance, it would be impracticable to order reinstatement.
Given such a finding, Section 170EE(2) of the Act states that the Court may make an order requiring the employer to pay to the employee compensation of such an amount as the Court thinks appropriate.
Section 170EE(3) states that in working out the amount of compensation for the purposes of subsection (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, but the amount of compensation must not exceed the amount of the remuneration that would have been received by the employee in respect of the period of six months that immediately followed the day on which the termination took effect, if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect.
In Aitken v CMETSWUA - WA Branch, unreported, IRCA No. 352/95, Lee J, 7 August 1995, his Honour summarised the compensation provisions of the Act by saying that,
"The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences".
I find that but for the respondent's contravention of the Act, the employee would have been likely to have remained employed with the respondent. Indeed, Mr Melville drew to my attention Section 84AA of the Workers' Compensation and Rehabilitation Act (Western Australia) 1981 (as amended). The effect of the section is to make it an offence if an employer does not preserve the employment of a "worker" injured at work for a period of twelve months from the date of the incapacity. Further, Section 84AA(4) excludes periods of total incapacity for work in calculating the 12 month period. The applicant's injury occurred on 5 July 1994, so the employer would have had to preserve her employment until beyond 4 July 1995, given her periods of total incapacity for work. Further, there is no evidence before me which suggests that it would have been likely that but for the contravention of the Industrial Relations Act, the employment would have ended. I do not think it likely that the applicant would have resigned or found alternative employment. Indeed, there was no evidence before me that the applicant had found any other employment or earned any other remuneration since her termination. The applicant said she had not received any workers' compensation since 23 March 1995. This was not challenged by the respondent. Whilst there is the possibility that the respondent could have later validly terminated the employment of the applicant, this is only one factor to be taken into account when assessing compensation. Also relevant is the fact that the applicant lost a job she had held for nearly two years, is now 39 years of age and because of her knee injury will find it difficult to obtain further employment.
In all of the circumstances I consider that the applicant should be awarded the maximum amount of compensation permissible, being the sum equal to what the applicant would have earned from the respondent in a six month period. It was agreed between the parties that the applicant's gross weekly wage was $410.16 per week. Therefore, the amount of compensation to be awarded will be $10,664.16. I also order that this amount be paid to the applicant within 14 days.
I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ritter.
Associate
Date:
Counsel for the applicant: Mr S Melville
Solicitors for the applicant: Gibson and Gibson
Representative for the respondent: Mr M Beros
Chamber of Commerce & Industry
Hearing date: 14 & 15 November 1995
Judgment date: 11 December 1995
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