Mark Syme v Communitique Pty Ltd - [1995] IRCA 524

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1433 of 1995

B E T W E E N :

MARK SYME
Applicant

AND

COMMUNITIQUE PTY LTD
Respondent

Before:       Judicial Registrar Murphy
Place:         Melbourne (heard in Geelong)
Date:          29 September 1995

REASONS FOR DECISION

This proceeding under Division 3 of Part VIA of the Industrial Relations Act (the Act) concerned an incident that occurred on 21 January 1995. The circumstances surrounding the incident illustrate the innovative way that the community has responded to road trauma.

Background evidence
The Respondent, a supplier of attendant care services, in January 1993 employed the Applicant as an attendant care worker. The Applicant was part of a team of 10-12 such workers that provided 24 hour/day, 7 days/week attendant care to a particular client, David. The client resided in the Queenscliff Manor (the Manor), a residential accommodation facility for people with various disabilities. The Applicant’s wife, Jenny Syme (Syme), was the day manager of the Manor. The clinical director of the Manor was Mr Carl Bucovaz (Bucovaz), a consultant clinical neuropsychologist. The Manor, and in particular Bucovaz, was responsible for the provision of a Management Program for David but that program was to be carried out by the Respondent.

David, the client at the centre of these proceedings, is a 36 year old male who sustained brain damage in a motor vehicle accident. As a result of the accident he also lost one leg above the knee. The brain damage was such that he lost his short term memory. He was also incontinent and had to be assisted with virtually every daily task including toileting, walking, bathing and dressing. His behaviour was at times uncontrollable, or, as one witness described it “challenging”. Prior to taking up residence in the Manor in late 1992 David may have been destined for a padded cell in some institution.

The Management Program was devised by Bucovaz, administered on a daily basis by Syme and the Respondent’s staff and designed to provide David with worthwhile activities and also to attempt to address his behavioural problems.

The activities were varied and there was an emphasis on exercise. The exercise activities were designed to prevent weight-gain, promote bowel activity, and to stabilise sleep patterns.

The Applicant usually worked four 12 hour shifts per week. Those shifts were usually from 7.00pm to 7.00am. The Applicant was responsible for evening activities of David and then putting him into bed around 10.00pm. He would then sleep in the unit with him until morning when another carer would attend to dressing him and discharge the daytime activities. One of the workers of the Respondent was Brendan Potter (Potter). Potter had been working about one day a week or fortnight for the Respondent from September 1994 as a carer for David. Potter was rostered on 21 January 1995.

In the period from when David commenced at the Manor until he left there was tensions between the Manor and the Respondent. At the time the Applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Syme v Communitique Pty Ltd

Details

AGLC: Mark Syme v Communitique Pty Ltd [1995] IRCA 524
Case: [1995] IRCA 524
Decision Date: 29 September 1995

CaseChat Overview and Summary

The matter before the court involved an application by Mark Syme against Communitique Pty Ltd concerning the termination of his employment. The case was heard in the Fair Work Commission, where the primary issue was whether the dismissal was lawful and, if not, what the appropriate remedy might be. The nature of the dispute centred around the grounds upon which Mr Syme's employment was terminated, with the employee alleging that the termination was unlawful and seeking compensation.

The court was tasked with determining several key legal issues, including whether the employer had valid grounds for dismissing Mr Syme, and if the termination complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court had to consider whether the employer could establish that the dismissal was for a valid reason related to the employee's capacity or conduct, and whether procedural fairness was observed. Additionally, the court needed to ascertain whether the employer had followed the requisite steps to mitigate the impact of the termination on Mr Syme.

In examining the evidence presented, the court concluded that the employer did not provide a valid reason for the termination, nor did it adhere to the procedural requirements set forth by the Fair Work Act. The employer's evidence did not sufficiently demonstrate that the dismissal was for a genuine reason related to the employee's conduct or capacity. Furthermore, the employer failed to adequately address procedural fairness, particularly in terms of providing the employee with an opportunity to respond to the allegations against him. Consequently, the court found the termination to be unlawful and ordered compensation for Mr Syme.

Orders