Mifsud v Veolia Transport Sydney Pty Ltd
[2011] FMCA 913
•22 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIFSUD v VEOLIA TRANSPORT SYDNEY PTY LTD | [2011] FMCA 913 |
| INDUSTRIAL LAW – Redundancy – claim for payment of redundancy payment under a preserved State award (now a collective agreement) – consideration of whether the applicant qualified for involuntary redundancy. |
| Fair Work Act 2009 (Cth), ss.539, 540, 546 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) |
| Applicant: | ANTHONY MIFSUD |
| Respondent: | VEOLIA TRANSPORT SYDNEY PTY LTD |
| File Number: | SYG 980 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 23 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Joseph |
| Solicitors for the Applicant: | Paramount Lawyers |
| Counsel for the Respondent: | Mr S R Meehan |
| Solicitors for the Respondent: | Macpherson + Kelley Lawyers |
ORDERS
The Court declares that the respondent breached clause 41 of the Veolia Transport (Metro Light Rail) Union Collective Agreement 2008.
The respondent shall pay the applicant the sum of $30,748.22 within 30 days.
The respondent shall pay the applicant within 30 days the sum of $4,590.33 interest up to judgment from 22 March 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 980 of 2011
| ANTHONY MIFSUD |
Applicant
And
| VEOLIA TRANSPORT SYDNEY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
The applicant (Mr Mifsud) was a shift officer employed by the respondent (Veolia Transport). His position with Veolia became redundant and the parties are in dispute whether Mr Mifsud is entitled to receive a redundancy payment under the Veolia Transport (Metro Light Rail) Union Collective Agreement 2008 (the collective agreement)[1]. Mr Mifsud proceeds by application under the Fair Work Act 2009 (Cth) (the Fair Work Act) seeking a declaration that Veolia Transport breached clause 41 of the collective agreement. He seeks an order that he be paid $30,748.22 plus interest.
[1] Formerly the Sydney Light Rail (State) Award 1997
There is a further issue whether, if a breach of the industrial agreement or the Fair Work Act is established, an order for a pecuniary penalty should be made.
The following statement of background facts is derived from the submissions of the parties and the evidence.
Mr Mifsud was employed by Veolia Transport from September 1997 until March 2010.
His employment began as a light rail driver, a position he worked in from 1997 until 2005. Whilst performing those duties, Mr Mifsud injured his back sometime in late 2002. He notified Veolia Transport of this fact.[2]
[2] See affidavit in chief of Mr Mifsud at [6]
Because of the difficulties being suffered by Mr Mifsud, his duties were restricted to one hour of driving per day and a range of other duties were undertaken.[3]
[3] Affidavit in chief of Mr Mifsud at [12]-[13]
In 2005, Mr Mifsud applied for, and succeeded in achieving a promotion to, the position of shift officer.
In the position of shift officer, the main role was to supervise and coordinate other staff including customer service officers (CSOs) and light rail drivers. Mr Mifsud continued in this role, which he was able to manage as, on his account, it only required physical labour to assist the CSOs during peak times of the day.[4]
[4] Affidavit in chief of Mr Mifsud at [14]-[16]
In or about August 2009, Veolia Transport decided to abolish the positions of shift officers. The effect of this is set out in a Veolia Transport memorandum dated 19 August 2009.[5]
[5] Annexure LH6 to the affidavit of Lance Henry
Between August and October 2009, Mr Mifsud and Veolia Transport engaged in discussions in accordance with clause 41 of the collective agreement.
Veolia Transport put a proposal to Mr Mifsud that he move to the position of CSO and have his pay “red circled”. This meant that his salary would be maintained until the CSO salary was equal to it. Mr Mifsud did not agree to this proposition and requested a voluntary redundancy.
The evidence would suggest that these discussions were ongoing and were not resolved at the time that Mr Mifsud took leave on or about
22 September 2009.[6] Correspondence from Mr Lance Henry to Mr Mifsud dated 21 September 2009 suggests that the issue of redeployment (presumably in accordance with clause 41) was to be discussed at some time after Mr Mifsud’s return to work.[6] Annexure LH13 to the affidavit of Lance Henry
Veolia Transport alleges by reference to the evidence of Mr Henry, that the “shift officer roster” was cancelled on or about 5 October 2009 and that Mr Mifsud then worked on 23-25 October 2009 as a CSO.
The evidence of Mr Mifsud is that no one told him that he was working as a CSO on those three days he worked. He says that he went to work and, to the best of his recollection, did the same duties as he had previously.
The documentary evidence is equivocal whether anything was done by Veolia Transport to formalise any change in Mr Mifsud’s status. The roster attached to the affidavit of Mr Henry from 23-25 October 2009 and the tally of monies collected by Mr Mifsud during those three days in particular are neutral in respect of the suggestion of any change to Mr Mifsud’s status or duties.[7] In addition, Mr Mifsud’s final pay slip from March 2010 still refers to him as a shift officer.[8]
[7] Annexure LH14 and LH15 to the affidavit of Lance Henry
[8] Annexure AM11 to the affidavit in chief of Mr Mifsud
Mr Mifsud asserts that his position was being held in abeyance whilst the question of his possible redeployment could be resolved. Put another way, the procedure in clause 41 had allegedly not yet been finalised in relation to Mr Mifsud.
The importance of this is that it runs counter to the assertion in Veolia Transport’s termination letter to Mr Mifsud[9] that he was being dismissed because of an inability to return to “pre injury duties” or that the duties of a CSO were what Mr Mifsud had been doing before his injury.
[9] Annexure AM9 to the affidavit in chief of Mr Mifsud
The evidence and submissions
Mr Mifsud relies on his points of claim filed on 16 May 2011 and his own affidavits made on 14 November 2011. Those affidavits were filed in court by leave at the commencement of the trial of the matter on 23 November 2011. Mr Mifsud also relies upon a bundle of documents tendered in evidence as exhibit A1. Mr Mifsud was cross-examined on his affidavits.
Veolia Transport relies upon its amended points of defence filed on
7 November 2011 and the affidavit of Mr Henry (human resources manager) made on 26 October 2011. Mr Henry was cross-examined on his affidavit. Veolia Transport also tendered in evidence as an exhibit (exhibit R1) the former state award. The relevant provisions of the former award and the collective agreement are materially the same.
Mr Mifsud contends that he is entitled to a redundancy payment pursuant to the collective agreement because his position became redundant following a company restructure and there was no other suitable position to which he could be transferred. Veolia Transport contends that redundancy payments under the collective agreement are discretionary and that the company is entitled to redeploy redundant staff to other positions. Veolia Transport contends that Mr Mifsud was redeployed to an alternative position of CSO and that, following that redeployment, he was terminated on medical grounds. Veolia Transport disputes that that determination gives rise to any liability to a redundancy payment.
Consideration
The dispute between the parties is a narrow one which is to be resolved by interpretation of the collective agreement and by reference to the relevant facts. I do not see anything in the extensive authorities referred to by counsel for Veolia Transport that alters that position. Clauses 41 and 42 of the State award as at 2006 provided as follows:
41. TERMINATION OF ENGAGEMENT
(i) The employment of a weekly employee or part-time employee may be terminated only by one week’s notice on either side, which may be given at any time, or by the payment by the employer of one week’s pay in lieu of notice. This shall not affect the right of the employer to dismiss an employee without notice in the case of an employee guilty of serious misconduct.
(ii) An employee with more than two months’ service on leaving or being discharged shall, upon request, be given a certificate of service in writing. Such certificate of service shall at least contain information as to the length and nature of the employment of the employee.
(iii) On termination, an employee shall return to the employer all uniforms, protective clothing, identity cards, vehicle keys, manuals and all other property of the Company that has been issued to the employee.
Where an employee fails to return any uniform or other items of value the employee shall be liable for an amount equal to the replacement cost of such items but with due regard for depreciation over time due to fail wear and tear.
(iv) The loading on accrued annual leave for the purpose of termination payout shall be at the rate of 17.5 per cent, except where an employee has been dismissed for misconduct, in which case no loading shall apply.
Loading is payable only in respect of annual leave which has fallen due for each completed year of service (not pro rata)
(v) Abandonment of Employment – Where an employee is absent from duty for more than five rostered shifts without providing satisfactory evidence to the employer, the employee will be regarded, prima facie, as having abandoned his/her employment.
42. REDUNDANCY
(i) If, for any reason, the Company determines that it has too many permanent employees in any part(s) of the enterprise, and that it is unable to rely upon natural attrition to reduce workforce levels, the Company will consult with the Union and employees party to this award.
(ii) Redeployment within the Company – Employees in positions which the Company deems redundant may be offered redeployment within the Company where vacancies needing their competencies exist and if it is financially viable for the Company to redeploy. Those employees accepting offers of redeployment may be required to undertake training to refresh their competencies or develop new competencies relevant to the new position.
(iii) Voluntary Redundancy – If there are no opportunities for redeployment, invitations for expressions of interest in voluntary redundancy shall be made by the Company. The criteria for invitations will be determined by the Company following consultation with the Union. Notwithstanding the invitations, the Company has the right not to formally offer redundancy to employees who express an interest.
(iv) Involuntary Redundancy – The Company shall only apply involuntary redundancies when it is satisfied that redeployment and voluntary redundancy opportunities have been exhausted. The Company will base its selection of employee(s) for redundancy on the Company’s need for competencies, qualifications and experience at that time. The Company will consult the Union on the application of this clause.
(v) Notice of Redundancy -
(a) Employees will be given the following notice:
Employee’s Period of Continuous Service Period of Notice
Less than 1 year 1 week
1 year and less than 3 years 2 weeks
3 years and less than 5 years 3 weeks
5 years and over 4 weeks
Payment in lieu of notice may be made by the Company.
(b) In addition to the notice above, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, shall be entitled to an additional week’s notice or payment in lieu thereof.
(vi) Redundancy Payments
(a) Employees shall receive severance payment of 3 weeks for every year of service or part thereof (pro rata) in voluntary/involuntary redundancy situations to a maximum of 52 weeks. Payments will be calculated on the relevant base wage.
(b) Employees shall also receive payment for the following:
unused accrued annual leave; pro rata unused long service leave after 5 years of continuous service.
(c) The above payments will not be offset against accumulated superannuation benefits.
(d) Temporary employees will not be eligible for any redundancy payments.
(vii)Other Entitlements – Employees shall also be entitled to receive the following in redundancy situations:
(a) Outplacement services, counselling and assistance, including:
advice on all entitlements; independent financial planning guidance; to plan lifestyle and career strategies; with job search techniques and interview skills
(b) The Company shall arrange for the provision of the above service upon request as is most appropriate for each redundant employee.
(c) Reasonable paid leave to attend job interviews.
(viii) Procedures to give effect to this clause shall be developed in consultation with the employer and the union.
(ix) Any grievances associated with this clause shall be dealt with in accordance with clause 43, Dispute Settling Procedures.
Clauses 39-41 of the collective agreement provide:
39.0 TERMINATION OF ENGAGEMENT
(i) The employment of a weekly employee or part-time employee may be terminated only by the giving of the prescribed notice period:
Employee’s Period of Continuous Service Period of Notice Less than one (1) year One (1) week One (1) year less than three (3) years Two (2) weeks Three (3) years and less than five (5) years Three (3) weeks Five (5) years and over Four (4) weeks
which may be given at any time, or by the payment by the employer of one (1) week’s pay in lieu of notice. This shall not affect the right of the employer to dismiss an employee without notice in the case of an employee guilty of serious misconduct.
(ii) An employee with more than two (2) months’ service on leaving or being discharged shall, upon request, be given a certificate of service in writing. Such certificate of service shall at least contain information as to the length and nature of the employment of the employee.
(iii) On termination, an employee shall return to the employer all uniforms, protective clothing, identity cards, vehicle keys, manuals and all other property of the Company that has been issued to the employee.
(iv) Where an employee fails to return any uniform or other items of value the employee shall be liable for an amount equal to the replacement cost of such items but with due regard for depreciation over time due to fair wear and tear.
(v) The loading on accrued annual leave for the purpose of termination payout shall be at the rate of seventeen and a half (17.5) per cent, except where an employee has been dismissed for misconduct, in which case no loading shall apply.
(vi) Loading is payable only in respect of annual leave which has fallen due for each completed year of service (not pro rata).
40.0 ABANDONMENT OF EMPLOYMENT
(i) If an employee is absent for a period of five (5) consecutive working days without authorisation, the Employer (before terminating) will write, via registered post, to the employee’s last known address advising that VTS is considering termination unless the employee provides a satisfactory explanation within seven (7) calendar days.
(ii) If the employee does not respond to the letter or resume duty within the specified (7) calendar days, a further certified letter will be forwarded to the employee’s last known address advising the employee that their services have been terminated due to abandonment of employment.
41.0 REDUNDANCY
(i) If, for any reason, VTS determines that it has too many permanent employees in any parts(s) of the enterprise, and that it is unable to rely upon natural attrition to reduce workforce levels, the Company will consult with the employee’s party to this Agreement.
41.1.1 Redeployment within the Company
(i) Employees in positions which the Company deems redundant may be offered redeployment within the Company where vacancies needing their competencies exist and if it is financially viable for the Company to redeploy. Those employees accepting offers of redeployment may be required to undertake training to refresh their competencies or develop new competencies relevant to the new position.
41.1.2 Voluntary Redundancy
(i) If there are no opportunities for redeployment, invitations for expressions of interest in voluntary redundancy shall be made by the Company. The criteria for invitations will be determined by the Company following consultation with the Consultative Committee and staff. Notwithstanding the invitations, the Company has the right not to formally offer redundancy to employees who express an interest.
41.1.3 Involuntary Redundancy
(i) The Company shall only apply involuntary redundancies when it is satisfied that redeployment and voluntary redundancy opportunities have been exhausted. The Company will base its selection of employee(s) for redundancy on the Company’s need for competencies, qualification and experience at that time.
41.1.4 Notice of Redundancy
(i) Employees will be given the following notice:
Employee’s Period of Continuous Service Period of Notice Less than one (1) year One (1) week One (1) year less than three (3) years Two (2) weeks Three (3) years and less than five (5) years Three (3) weeks Five (5) years and over Four (4) weeks
(ii) Payment in lieu of notice may be made by the Company.
(iii) In addition to the notice above, employees over forty five (45) years of age at the time of the giving of the notice with not less than two (2) years continuous service, shall be entitled to an additional week’s notice or payment on lieu thereof.
41.1.5 Redundancy Payments
(i) Employees shall receive severance payment of three (3) weeks for every year of service or part thereof (pro rata) in voluntary/involuntary redundancy situations to a maximum of fifty two (52) weeks. Payments will be calculated on the relevant base wage.
(ii) Employees shall also receive payment for the following:
(a)unused accrued annual leave;
(b)pro rata unused long service leave after five (5) years of continuous service.
(iii) The above payments will nor be offset against accumulated superannuation benefits.
(iv) Temporary employees will not be eligible for any redundancy payments.
(v) Other Entitlements – Employees shall also be entitled to receive the following in redundancy situations:
(a) Outplacement service, counselling and assistance, including:
· advice on all entitlements;
· independent financial planning guidance;
· assistance to plan lifestyle and career strategies;
· assistance with job search techniques and interview skills.
(b) The Company shall arrange for the provision of the above service upon request as is most appropriate for each redundant employee.
(c) Reasonable paid leave to attend job interviews
(vi) Procedures to give effect to this clause shall be developed in consultation with the employer and the Consultative Committee and staff.
(vii) Any grievances associated with this clause shall be dealt with in accordance with Clause 6.0 Dispute Settling Procedures of this agreement.
The collective agreement was at all material times a “transitional instrument” by virtue of clause 2, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Fair Work (Transitional Provisions and Consequential Amendments) Act) and remained in force under the Fair Work Act.
By virtue of clause 16, Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act, the collective agreement is treated as a “Fair Work instrument” and further by virtue of the provisions referred to at [23] above and ss.539, 540, 545 and 546 of the Fair Work Act, Mr Mifsud has standing to commence and maintain these proceedings against Veolia Transport.
There is no dispute that Mr Mifsud has received his entitlements in consequence of the termination of his employment under clause 39. The dispute centres on whether he should receive the additional redundancy payment provided for under clause 41.
The evidence in this case is broadly not contentious. There is some dispute in the evidence on matters of detail but the following relevant facts were established on the evidence of both parties.
Veolia Transport was aware prior to 2009 that Mr Mifsud suffered a workplace injury to his back in 2002. In consequence of that injury he had medical restrictions placed upon the work which he was able to undertake which limited him to driving trams for one hour or relieving in the control room for an hour. He performed his duties as a shift officer from about March 2005 subject to those medical restrictions.
As a result of the company restructuring in August 2009, three positions of shift officer became redundant. One shift officer was promoted to the position of a controller. A second was redeployed to the position of driver (which was a lower salary position but Veolia Transport undertook to maintain his salary at its former level).
Mr Mifsud was offered redeployment to the position of customer service officer on the same basis as the shift officer who was redeployed to the position of driver.
I infer that it was not open to Veolia Transport to redeploy Mr Mifsud to the position of driver because of his medical restrictions. However, a shift officer and customer service officer shared common duties (particularly selling tickets and checking tickets) and Veolia Transport took the view that the customer service officer position was suitable for Mr Mifsud as he would continue to perform duties as a customer service officer that he had formerly been undertaking as a shift officer.
The position of customer service officer had a more limited range of duties than that of a shift officer and Mr Mifsud objected to it as a demotion, notwithstanding the undertaking of Veolia Transport to maintain his salary. With the support of his union, Mr Mifsud sought a redundancy.
Exhibit LH6 to the affidavit of Mr Henry establishes that he was alert to the possibility of a redundancy under clause 41 of the collective agreement and he calculated what Mr Mifsud’s redundancy payment would be. However, Mr Matt Baynie (the general manager of Veolia Transport) decided that no redundancy payments would be offered.
Mr Mifsud went on sick leave on 27 August 2009. He provided medical certificates from a Dr Coorey that he was unfit to work. There were further discussions between Mr Henry, Mr Mifsud and a representative of his union about whether and when Mr Mifsud would return to work. Veolia Transport also engaged in correspondence with the union and Mr Mifsud with a view to obtaining his agreement to take up duties in the position of customer service officer, to which Veolia Transport was seeking to redeploy him.
Mr Mifsud returned from leave and worked on 23, 24 and 25 October 2009. The parties are in dispute as to whether Mr Mifsud worked as a customer service officer or as a shift officer on those days. The available evidence shows that Mr Mifsud performed duties on those days which were common to both positions. The roster record of Veolia Transport for those days is ambiguous.
Mr Mifsud again went on sick leave on the basis of an acute stress reaction apparently caused by the uncertainty over his employment. Mr Mifsud made a workers compensation claim for his stress condition which was rejected by Veolia Transport. Mr Henry wrote to Mr Mifsud on 24 February 2010 warning him that if he did not arrange a meeting to discuss his return to work within seven days, he would be regarded as having breached his employment contract and abandoned his employment[10].
[10] see clause 40 of the collective agreement
Mr Henry and Mr Mifsud met on 5 March 2010. Mr Mifsud, during that meeting, referred to his back condition and a workers compensation issue concerning that back condition. He also referred to a blood pressure problem. Subsequently, Mr Henry arranged an appointment with Dr Coorey to discuss Mr Mifsud’s medical condition and options for him to return to work. Mr Henry and Mr Mifsud met with Dr Coorey on 15 March 2010. Another officer from Veolia Transport also attended. Dr Coorey orally expressed the opinion that, given Mr Mifsud’s degenerative back condition, the position of customer service officer was unsuitable for him. Dr Coorey confirmed that opinion in a report dated the same day. Mr Henry met Mr Mifsud on 19 March 2010 and advised him, in the light of Dr Coorey’s prognosis, that Veolia Transport had formed the view that a medical termination was the only available option. This was confirmed by letter dated the same day.
Apart from the claimed redundancy payment, Veolia Transport has paid Mr Mifsud his entitlements in consequence of the termination of his employment. Mr Mifsud also made a workers compensation claim in respect of his 2002 back injury. That claim was settled for $20,000 on 16 February 2011.
In consequence of the company restructure in August 2009, Veolia Transport had an obligation to consider the redundancy of the three employees affected. Pursuant to the collective agreement, Veolia Transport was not necessarily obliged to pay a redundancy but there is an implication that a redundancy would become payable if the affected employees could not be redeployed. There was no issue of voluntary redundancy. Veolia Transport senior management had decided that no redundancies would be offered. The company was directing its attention to redeployment and two of the three employees were successfully redeployed. The issue here is one of involuntary redundancy. Clause 41.1.3 of the collective agreement provides that the company shall only apply involuntary redundancies when it is satisfied that redeployment and voluntary redundancy opportunities have been exhausted. The subclause continues (somewhat inconsistently) that the company will base its selection of employees for redundancy on the company’s need for competencies, qualifications and experience at that time. It is not apparent how the company’s need for competencies, qualifications and experience could be met once the company was satisfied that redeployment and voluntary redundancy opportunities had been exhausted. In the present case, there was no opportunity for voluntary redundancy because of the management decision that no voluntary redundancies would be offered. The question is whether redeployment options had been exhausted.
Veolia Transport was apparently unwilling to offer Mr Mifsud a promotion to a position of controller. It was, in my view, reasonable for Veolia Transport to take the view that it would be inappropriate to transfer Mr Mifsud to the position of driver because of the medical restrictions impacting upon his employment. At the time Mr Mifsud was offered redeployment to the position of customer service officer in 2009, it was reasonable for Veolia Transport to conclude that such redeployment was reasonable and appropriate (subject to the maintenance of Mr Mifsud’s salary) because the duties of a customer service officer were common to some of those of a shift officer (albeit that those of a customer service officer were more restricted than those of a shift officer) which Mr Mifsud had been performing for four years. Mr Mifsud’s complaint at the time the redeployment was offered in 2009 was not that his medical condition prevented him from performing the duties of a customer service officer but, rather, that the position offered was unacceptable as it was a demotion.
Mr Mifsud’s stress condition, which prevented him from working for some time in 2009, may be put to one side. That was a temporary condition which arose from uncertainty concerning his employment.
It is reasonable to suppose that that stress condition would be resolved once the uncertainty had been removed. The fact was that Mr Mifsud wanted a redundancy payment and sought that consistently with the support of his union.
Ultimately, Veolia Transport accepted the medical opinion of Mr Mifsud’s doctor, Dr Coorey, that his degenerative back condition rendered the position of customer service officer unsuitable for him.
It is not open to me to go behind that opinion as both parties rely upon it. It may have been convenient for Mr Mifsud to rely on the opinion in support of his claim for a redundancy. It may also have been convenient for the company to rely on the opinion to support its decision that there should be a medical termination. The question to resolve is which of the parties is mistaken concerning the question of whether Mr Mifsud is, in the circumstances, entitled to the redundancy payment he seeks.
In my view, properly interpreted, clause 41 in the collective agreement leaves the question of a redundancy payment to management’s discretion, subject to the proviso that that discretion must be exercised lawfully. An employee cannot self select for a voluntary redundancy unless that is offered. Neither can an employee self select for an involuntary redundancy. An involuntary redundancy becomes payable if the company is satisfied that it is the only available option.
A redundancy payment on involuntary redundancy is payable under clause 41.1.3 where the company is satisfied that redeployment and voluntary redundancy opportunities have been exhausted. As already noted, there were no voluntary redundancy opportunities available.
As a consequence of the restructure, there was only one redeployment opportunity available to Mr Mifsud and that was the position of customer service officer. Even if I were to accept that Mr Mifsud worked as a customer service officer for three days that would not lead me necessarily to a conclusion that the redeployment process had been completed. A redeployment process is just that: a process. Where a redeployment is offered, the redeployment needs to be accepted and the company needs to be satisfied that the employee can work in the position to which he or she is being redeployed. In the present case, that redeployment was disputed by Mr Mifsud. If Mr Mifsud worked for three days as a customer service officer, he did so unwillingly. The process of redeployment had not been completed. Following those three days Mr Mifsud once again went on sick leave and was threatened with termination of his employment if his position was not resolved. Ultimately, Veolia Transport chose to accept the medical opinion of Mr Mifsud’s doctor that the position of customer service officer was unsuitable. Veolia Transport did not have to accept that opinion, but elected to. Just as an employee cannot self select for an involuntary redundancy, neither can the company avoid the consequences of closing off all options for a redundant employee.
By accepting the medical opinion of Dr Coorey and terminating the employment of Mr Mifsud on medical grounds, in my view, the liability to make a redundancy payment under clause 41.1.5 was enlivened. There was no basis on which the company could be satisfied that redeployment opportunities had not been exhausted. The evidence does not support any basis upon which the company could assert any opportunity for it to retain the competency, qualifications and experience of Mr Mifsud at the time of his termination.
Mr Mifsud should receive the relief he seeks in the form of a declaration, an order for payment of the redundancy payment and interest up to judgment. In respect of pre-judgment interest, I will apply Federal Court of Australia Practice Note CM16 issued on
1 August 2011. The following rates of interest apply:
a)22 March 2010 to 30 June 2010 – 7.7% (100 days) $648.66
b)1 July 2010 to 31 December 2010 – 8.5% (184 days) $1,317.54
c)1 January 2011 to 22 December 2011 – 8.75% (356 days) $2,2624.13
Total $4,590.33
I will hear the parties as to the issue of any penalty and costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 22 December 2011
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