Martin v International Freight Consolidators Pty Ltd

[1996] IRCA 420

DECISION NO: 420/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION OF EMPLOYMENT - whether pregnancy ILLNESS - whether TEMPORARY ABSENCE was a reason for termination - VALID REASON - COMPENSATION - duty to mitigate losses. 

Industrial Relations Act 1988 ss170DF, 170DE, 170EA, 170EDA
Industrial Relations Regulations, Reg.30D

MARTIN v INTERNATIONAL FREIGHT CONSOLIDATORS PTY LTD
VI 96/1487


Before:  MURPHY JR
Place:  MELBOURNE
Date of hearing:        28 AUGUST 1996
Date of judgment:     28 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 96/1487

BETWEEN:

JOANNE CATHERINE MARTIN
Applicant

AND

INTERNATIONAL FREIGHT CONSOLIDATORS PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:        MELBOURNE
DATE:           28 AUGUST 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The respondent pay to the applicant the sum of $4,760.00 in compensation.

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 96/1487

BETWEEN:

JOANNE CATHERINE MARTIN
Applicant

AND

INTERNATIONAL FREIGHT CONSOLIDATORS PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:        MELBOURNE
DATE:           28 AUGUST 1996

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

In these proceedings the applicant seeks a remedy under s170EA of the Industrial Relations Act (“the Act”) following the termination of her employment on 22 March 1996. The issues in the case arise out of the applicant's pregnancy. She is due to give birth on 20 September. There was little dispute on the factual issues involved.

Background 
The respondent is involved in the transport service industry and employs just over 20 people.  The applicant joined the respondent in May 1995 as a customer service officer.  Her original employment was the subject of an oral contract but

commencing in August she signed an employment contract (Exhibit R1) governing the relationship between the parties.  The contract provides for a period of 12 months probation.  This provision was not relied upon to exclude the Court's jurisdiction, as there was no evidence that it was agreed to in advance of the employment (Regulation 30B(1)(c)).  The applicant's duties involved her in sales, client liaison, quotations, and clerical and other support for the various divisions of the respondent.

There was no real criticism of the applicant's performance in the period to January 1996.  She had a few day's leave in excess of her sick leave entitlement, but no significant issue was taken by the respondent.  The applicant has a history of difficult pregnancies.  Pregnancies in May and July 1995 failed.  She advised the Managing Director of the respondent, Mr Bevenetto, of the July 1995 pregnancy.  In January 1996 the applicant again fell pregnant.  She saw her gynaecologist who advised her that her condition was such that she had to rest in bed for a period of six weeks.  He gave her a medical certificate dated 31 January 1996 (Exhibit R3) stating that she would be unfit for work from 31 January 1996 to 15 March 1996.  The applicant gave evidence that after she received the certificate she attended at the respondent and told Mr Bevenetto that she was again pregnant, there was a problem with the pregnancy and that she would have to stay in bed for six weeks.  She gave him the medical certificate.  His response, she said, was understanding and supportive. In evidence Mr Bevenetto admitted that in one conversation with the applicant he said that his wife had just had a baby and he understood what it was like.

The applicant was on leave from 31 January and the respondent, under some stress, coped with her absence.  Part-time employees had their working time extended, and the applicant's workload was re-organised and re-assigned among other customer service officers.  On 13 March, a couple of days before her certificate was due to expire, the applicant again attended her gynaecologist.  He gave her a certificate that she was unfit for work for a further period from 15 March to 12 April (Exhibit R4).  The applicant phoned Mr Bevenetto and advised him that the earlier problem had not subsided.  She had to have a further period of four weeks off to get over the critical phase.  On her evidence, Mr Bevenetto did not object.  He asked her to forward the certificate. 

On 22 March the applicant was phoned by another employee of the respondent and told a letter was being delivered to her.  The employee attended with the applicant's personal effects and a letter of termination.  The letter of termination refers to the employment contract and says:

“As you aware due to your extended absences from work you have been unable to fulfil your duties under the Contract and you have substantially exceeded your leave allowances.

Pursuant to clause 19 of the Contract, you are entitled to sick leave accumulating at the rate of 3.125 hours for every full months service.  You will be aware that your current absence on sick leave has substantially exceeded this period. 

Accordingly we wish to advise you that in view of your inability to comply with the terms of the Employment Contract and in accordance with the terms of that Agreement we formally give you one month's notice of termination........ .”

The applicant was paid a month's salary at the time. 

The respondent's evidence was that in the interests of the business, and the need to have direction as to future staff needs, Mr Bevenetto decided to dismiss her.  He said that when he received the second medical certificate he had no guarantee that the applicant would be back at the end of the four week period.  He had been unable to rely on the first certificate as showing that when she would be fit.  He admitted that he did not ask the applicant whether she would be able to resume her duties at the end of that time.

It was the applicant's evidence that she did not know at the date of her dismissal whether at the end of the certificate she would be able to resume work.  As events unfolded, her health from mid-April to date has been good and she feels she would have been able to resume work had she not had her employment terminated. 

Has the Act been breached?
Counsel for the applicant argued that in dismissing the applicant, the respondent breached sections 170DF(1)(a) and (f), 170DE and 170DC of the Act. Counsel for the respondent argued that the provisions of s170DF(1)(a) did not apply because the applicant was not on authorised leave. It was further argued that the respondent was entitled to dismiss the applicant because of the disruption to its business caused by the applicant's absence. The employer carries the onus of proof to negative a reason proscribed by s170DF(1)(s170EDA(2)).

It is clear from the face of the letter of termination that the applicant's absences from work were the reason for her termination. The question is whether they were excluded by the Act or the regulations.

S170DF(1)(a) refers to "temporary absence from work because of illness or injury".  The Act is beneficial legislation.  There is no warrant for narrowly construing the term "illness".  While it would not be appropriate to characterise pregnancy as an illness, it is appropriate to characterise a person who, as a result of pregnancy, is unfit to perform clerical duties and confined to bed, as ill.  Further, the "illness" here comes within the description “temporary absence from work due to illness” because the medical certificate set out a defined period.

Regulation 30D sets out the requirements for whether a temporary absence from work comes within s170DF(1)(a). Here I am satisfied that sub-regulation 30D(2) applies because the applicant was on authorised leave. Mr Bevenetto authorised her absence for a further four weeks in the telephone call wherein the applicant told him of the further medical certificate. If I am wrong about this, then in any event the applicant has complied with sub-regulation 30D(4) by the provision of a medical certificate.

Further, I am satisfied that the respondent cannot rely on paragraph 30D(8)(c) because the duration of the illness here was such that, given the evidence, it would be harsh, unjust or unreasonable to terminate her employment.  The significant factor here is that the respondent only sought to permanently replace the applicant in the last week or two.  Having regard to all this, I am satisfied on the evidence that the respondent has not discharged its onus of proof that the applicant's temporary absence from work for illness was not a reason for the termination of her employment.

If I am wrong about this, I am satisfied in any event that the respondent did not have a valid reason to terminate the applicant's employment and thus breached s170DE(1) of the Act. The respondent having, as I have found, granted the applicant leave for a further four weeks could not validly revoke that leave without reverting to the applicant first. It chose not to do so. The respondent has breached s170DE(1) of the Act. It is unnecessary for me to consider whether the respondent has breached s170DF(1)(f) of the Act.

Remedy 
The applicant did not seek reinstatement.  She claimed compensation for the earnings she would have achieved over the period 12 April 1996, when the second certificate expired, until 20 August 1996, when she intended to commence her confinement leave. 

The applicant, after receiving notice of termination, did not attempt to obtain other employment.  She gave evidence that she did not believe she could find an employer who would put her on for the short period that she had to work before leaving for her confinement.    Counsel for the respondent attacked the applicant on the basis that she had failed to take any action to mitigate her losses by, for example, seeking employment with a temporary staffing agency. 

Counsel for the applicant also sought compensation for the stress and hurt associated with the manner of the termination.  No evidence was led on this point.  The applicant also claimed loss of the opportunity to revert to employment at the end of the maternity leave that the applicant intended to take.

The applicant's losses that can be quantified with precision are about four month's salary, as she was paid by the respondent a month's pay on 22 March 1996.  She thus has lost the money she would have earned over the period 22 April to 20 August 1996, when she intended to go on confinement leave. 

The applicant's losses are subject to a number of contingencies that are difficult to resolve on the material before the Court.  These include whether, had she not been terminated on 22 March, her gynaecologist would have ordered a further period of bed rest on 12 April when the second medical certificate expired.  Further, there is the contingency that she may not have been able to work for the whole period prior to 20 August when she intended to proceed on confinement leave.  A further contingency in relation to the applicant's losses is whether, had she made some effort to obtain employment, she would have obtained some employment over the period since she was advised that her employment had been terminated.  The applicant's failure to seek other employment is a matter that the respondent, as the wrong-doer, cannot overly criticise, as it has put her in the predicament.  However, the applicant has a duty to mitigate her losses and she has failed in that duty by not making an effort to obtain any employment at all.  The claim that the applicant has lost the opportunity to revert to employment at the end of her period of maternity leave is one that is speculative in nature and I do not intend to take it into account, given all the other contingencies that I have considered.

The Act gives the Court a wide discretion in relation to remedy as a result of the amendments in the Industrial Relations and Other Legislation Amendment Act 1995. Here I am satisfied that some compensation is appropriate for the unlawful conduct of the respondent. The measure of that compensation, taking into account the fact that the applicant has already been paid until 22 April is, I am satisfied, two month's salary. Based on the applicant's salary of $28,560 per annum, this is an amount of $4,760.00 and I will order that the respondent pay that amount to the applicant in compensation.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision
of Judicial Registrar Murphy as recorded in
the transcript and revised by the Judicial Registrar.



Associate:      KAREN HALSE
Dated:            28 August 1996

APPEARANCES

Counsel appearing for the applicant:	Mr I Upjohn
Solicitors for the applicant:	Eales & Mackenzie
Counsel appearing for the respondent:	Mr Bruce Shaw
Solicitors for the respondent:	Mulcahy Mendelson & Round
Date of hearing: Date of Judgment	28 August 1996 28 August 1996