Marta Clara Aimino v Menzies International (Aust) Pty Ltd

[1994] IRCA 44

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 735/94
VICTORIAN DISTRICT REGISTRY

B E T W E E N:

MARTA CLARA AMINO
  Applicant
  AND

MENZIES INTERNATIONAL
  (AUST) PTY LTD

Respondent

Reasons for Judgment

4 October 1994  PARKINSON JR.  
The applicant in this matter seeks a declaration that the termination of her employment by the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988, and an order that she be reinstated with orders made for payment of remuneration lost due to the termination.

The applicant has worked as a cleaner at Fountain Gate Shopping Centre
in an outer suburban area of Melbourne. She was initially employed at that Centre in 1988 by the Company holding the cleaning contract for the Centre at that time.  She was employed by the respondent when it took over that contract, from 1st October, 1990 until her employment was terminated on 23rd May, 1994. The applicant’s weekly gross earnings at the time of her termination were $372.00.

On 23rd January, 1994 the applicant suffered an injury to her shoulder, which injury occurred at the workplace and was work-related. As a result of that injury she had several periods of absence from work, along with two periods where her work was the subject of either light duties or modified duties. It appears that the respondent co-operated with the applicant’s doctor in relation to the provision of such duties, although there was some dispute as to whether, when she was on modified duties, her work load was excessive, and as to whether the trays she continued to be required to lift exceeded 10 kilograms in weight; however this aspect is not crucial to the decision in this matter.

I am satisfied that, as a result of her injury, the capacity of the applicant to perform her duties at the level she had previously was reduced by the injury she had suffered.  I am also satisfied that there had been no concern either expressed or actual with the applicant’s work performance prior to her being injured in January, 1994. In this regard Mr. Kavanagh, the applicant’s supervisor, gave evidence to the effect that up to the point of “this contentious area of workcare” the applicant performed her duties well and he never really had occasion to complain, and that he had regarded her work as satisfactory. I am satisfied that this was the case.

I am also satisfied that there had been no communication to the applicant of any dissatisfaction with her work performance during the period 23rd January, 1994 until 16th May, 1994.  The evidence is that exhibit S2 was a duty statement handed to the applicant on 16th May, 1994. That duty statement which was not, on the evidence of the respondent’s witnesses, merely a recent creation, acknowledges at paragraph 10 that there had previously been a very high standard of performance of work in the area.

In the month prior to the termination of her employment, the applicant had taken one month of her annual leave to make further efforts to assist the recovery of her injury.  Whilst she was due to return to work from that annual leave on 11th May, 1994, due to illness she in fact did not return to work until 16th May, 1994.

On 16th May, 1994 she returned to work and it is alleged that there were on 19th and 20th May, 1994 complaints by tenants in relation to cups and rubbish being left on tables in the food court area. It was said by the respondent’s witnesses that there had been a large number of complaints in relation to the applicant’s work performance. Whilst there was no direct evidence of such complaints, there was some documentation provided which would tend to suggest that there had been two complaints by two tenants of the Centre in relation to the performance of the applicant’s duties after she returned to work on 16th May, 1994.  In this regard I refer to exhibits M1, S3 and S4. 

Exhibit S3 was comprised of notes made by the applicant’s supervisor  Mr. Kavanagh, and refers to a complaint from a coffee shop tenant. Exhibit M1, which was a warning letter given to the applicant on 19th May, 1994, was evidenced to have been created as a result of the complaint by the coffee shop tenant of which the author had been advised by Mr. Kavanagh. The author of exhibit M1 was Mr. King, the Area Manager for the respondent. Whilst the document implies that there had been receipt of more than one complaint from more than one tenant, Mr. Kavanagh’s evidence was that he had only advised Mr King of the coffee shop complaint. Exhibit S4 are handwritten notes dated 20th May, 1994 created by Mr. King of a further complaint from a tenant in the food court area where the applicant worked.

Objection was taken by counsel for the applicant in relation to the tender of  both exhibit S3 and S4 on the basis of  the rule against hearsay. The documents were admitted subject to the obvious limitation to their value as evidence in these proceedings as to either the fact of receipt of the complaints, and their lack of any evidentiary value as to the truth of the subject matter of the complaints referred to therein. In my view it is open to the respondent to rely upon the contents of these exhibits as evidencing the recording by the witnesses of complaints, but no more than that. The witnesses have given direct evidence of the receipt of those complaints.

On balance I am satisfied that the specific complaint referred to in exhibit S1 was made. There is however no evidence from complainants as to the truth or otherwise of that complaint.

As a result of the complaint of Thursday, 19th May a final warning which was exhibit M1 was issued that day in the late afternoon. It was implicit in the evidence of Mr. Kavanagh that there was an appreciation that the applicant’s performance was being affected by her work-related injury, but no acknowledgment of this was contained in the warning letter which was exhibit M1. It was apparent to me from the evidence of the applicant that her injury was interfering with the extent to which she was able to perform her work, and to some extent exhibit S3 confirms this in that it is recorded therein that on 19th May, 1994, the applicant had indicated that she was not able to cope with the work. I take this to be referring to the intense level of demand of the downstairs food hall, which on the evidence was an exceptionally busy place. Both of the respondent’s witnesses conceded that the work area to which the applicant was allocated was very busy and that this had in recent years increased substantially.

This is a case where a final warning was issued in relation to the applicant’s work performance in circumstances where there was little if anything she could do about improving her performance having regard to her injury. No opportunity was given to the applicant to reply or to be heard in relation to that warning nor was any period for improvement specified or any discussion held as to whether the applicant needed any assistance to improve, notwithstanding her continuing injury. 

Mr. Kavanagh gave evidence that from the time of the final warning until the date of dismissal he had received no further complaints in relation to the applicant’s work performance and had not raised any further complaints with the applicant.  Mr. King, however, gave evidence that he had been present at the time of a telephone conversation wherein a further complaint had been made on 20th May, 1994.

No evidence was called from the complainant and no direct evidence was given by Mr. Kavanagh which might tend to corroborate the alleged complaint detailed in exhibit S4, notwithstanding that he is recorded in that exhibit as having been present at a discussion with the complainant; indeed his evidence, referred to above, that there were no further complaints is in direct conflict with the contents of this exhibit.  Were it necessary to decide this case merely upon the basis of the existence of alleged complaints, I would not have regard to contents of this exhibit as to the alleged complaint on 20th May, 1994.

There was also evidence from the Mr. Kavanagh that he had observed that the person who relieved the applicant in her area whilst she was on annual leave did a much better job than the applicant.

On Friday 20th May, 1994 the applicant was shifted from the busier downstairs food hall to the less busy upstairs food hall. An employee from upstairs was transferred downstairs by agreement. Notwithstanding this transfer and the fact that there were no further complaints about the applicant, the respondent’s manager Mr. King instructed that the applicant’s employment be terminated on Monday 23rd May, 1994.
On the evidence, there was no incident or event or reason why the applicant’s employment should have been terminated at that time.

Having regard to the above history and the circumstances of the termination of the employment, I am not satisfied that the respondent had a valid reason connected with the employee’s capacity or conduct for the termination of the employment of the applicant on 23rd May, 1994. 

As to the matter of procedural fairness, I find that the applicant was not accorded procedural fairness having regard to the requirement of the Act
that the termination must not be harsh, unjust or unreasonable.  I further find that the respondent failed to accord to the applicant her entitlement pursuant to S170DC of the Act and thus contravened that Section. There was simply no discussion with the applicant. She was given no opportunity to be heard in relation to any of the allegations as to her conduct. (see  Byrne and Frew v Australian Airlines Limited (1994) 52 I.R. 10 at 37,63.) There was nothing on the evidence before me which would provide any reason why it might be said that the employer could not reasonably have been expected to accord her such a hearing. Further, there was no exploration with the applicant of any possible alternative prior to the dismissal decision being implemented. (See Gregory v Phillip Morris (1988) 80 ALR 455 at 473.) I therefore find that the termination of the applicant’s employment was harsh, unjust and unreasonable having regard to considerations of procedural fairness.

S170EE - Remedy:
In this matter the applicant has urged that the court make an order for the reinstatement of the applicant by the respondent. The respondent has submitted that as it no longer holds the contract for the workplace at which the applicant was previously located this would be impracticable, and that further, because of the location of the regional branch of the employer in the Latrobe Valley, other employment would be impracticable having regard to where the applicant resides. However, the evidence reveals that this respondent has other branch offices, including a Melbourne branch and therefore I am not assisted by this argument.

The respondent did not submit that the fact of the applicant’s injury made reinstatement impracticable, and whilst the evidence is that the applicant had previously experienced some difficulty performing her duties as a result of her work related injury, I am satisfied that this situation was improving and indeed the steps taken to transfer her, as were done immediately before her termination, indicate a recognition by the employer of this fact. I am not satisfied that the reinstatement of the applicant is impracticable. That the  applicant has expressed the wish to return to employment also assists me in determining that such remedy ought be granted.

The orders will require the respondent to reinstate the applicant and to appoint her to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination of her employment.  This includes a consideration of the location of the employment having regard to where the applicant resides and the relative distances she travelled to her previous employment location. In the event that there are any difficulties arising out of the order made in respect of appointment to another position in the above terms, either party is granted leave to apply.

I also propose to order that the respondent pay to the applicant the remuneration lost by the applicant because of the termination of her employment which amount is a gross amount and has been calculated to be the sum of $7440.00. Orders made will also provide for the maintenance of the continuity of the applicant’s employment with the respondent.

This court orders and declares:

1. That the termination of the applicants employment by the
            respondent contravened the provisions of S170DC and S170DE of
   the Industrial Relations Act 1988.

1. The respondent reinstate the applicant by appointing her to
            another position on terms and conditions no less favourable than
            those on which the applicant was employed immediately before      the termination and that reinstatement operate from the date of this
            decision.

1. That the respondent pay to the applicant the sum of $7,440.00                
            being the amount of remuneration lost by the applicant as a result
            of the termination of her employment.

1. That the period between 23rd May, 1994 and the date of this
            decision be treated as continuous employment of the applicant by
            the respondent for all purposes.

I certify that this and the preceding nine (9) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:

Dated:  3 October 1994

Solicitors for the applicant:  McDonald & Charman

Solicitor appearing for the applicant:                 Mr. A. McDonald

Solicitors for the respondent:  Kings

Counsel appearing for the respondent:               Mr. B. Shaw

Date of hearing:  30 September 1994

Date of judgment:  3 October 1994