Mooney v W and B Morieson Pty Ltd

[1996] IRCA 258

DECISION NO: 258/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - HARSH UNJUST or UNREASONABLE - Obligation to rehire former employee if hiring a comparable employee in REDUNDANCY situation

INDUSTRIAL LAW - Maternity Leave: declaration as to required notice - Workers Compensation - Injury - Return to Work Plan: Travel Plan 

Industrial Relations Act 1988 ss 170CB, DB, DC, DD, DE, DF, DG, EA, ED, 170EE
Industrial Relations Act 1991 (NSW) s 32(1)

Liddell v Lembke (1994) 56 IR 447
Kenefick & Ors v Australian Submarine Corporation (1996) 62 IR 107
Gary Sinclair v Anthony Smith and Associates Pty Ltd (unreported IRCA decision no 663/95, von Doussa J, 1 Dec 95)
Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327
Corkery v General Motors-Holden's Limited (1986) 53 SAIR 531

LEISA JANE MOONEY v W & B MORIESON PTY LTD

No. NI 4174 of 1995

COURT:       MCILWAINE JR
PLACE:       SYDNEY
DATE:          22 APRIL 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 4174 of 1995

BETWEEN:

Leisa Jane MOONEY
Applicant

AND:

W & B MORIESON PTY LTD
Respondent

BEFORE:     MCILWAINE JR
PLACE:       SYDNEY
DATE:          30 APRIL 1996

MINUTES OF ORDER

THE COURT ORDERS:

1. The respondent pay $420.00 for contravention of s170DB(2) of the Act within 7 days of today.

1. Compensation of $5,460.00 to be paid within 21 days of today.

THE COURT NOTES:

1. The applicant neither consents to nor opposes granting a stay of the            orders conditional on the respondent.

a.paying $420.00 within 3 days of today to the solicitor for the applicant whose receipt shall be sufficient discharge of this obligations.

b.the amount of compensation of $5,460.00 (gross) to be paid by first instalment of $2,730.00 within 28 days of today (4pm Tuesday 28 May, 1996) to applicant’s solicitor whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

c.a further instalment of $1,400.00 to be paid by 4pm 18 June 1996 to applicant’s solicitor whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

d.a final instalment for the balance of $1,330.00 to be paid by 4pm 9 July 1996 to the solicitor for the applicant, whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 4174 of 1995

BETWEEN:

Leisa Jane MOONEY
Applicant

AND:

W & B MORIESON PTY LTD
Respondent

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)

22 APRIL 1996     MCILWAINE JR

This is an application under Division 3 of Part VIA of the Industrial Relations Act 1988, ("the Act") claiming unlawful termination of employment by Leisa Jane Mooney against her former employer, W and B Morieson Pty Limited.

I have a certificate under section 170ED(2) of the Industrial Relations Act 1988 from the Industrial Relations Commission signed by Deputy President Drake dated 24 November 1995 in the following terms:

"In accordance with subsection 170ED(2) of the Industrial Relations Act 1988 the Commission certifies it has been unable to settle this matter by conciliation."

The parties did not raise any objection to the certificate.  I therefore find that the matter is properly before me.

The applicant filed contentions of fact and law which were admitted by the respondent as follows: 

"1. The Applicant commenced employment with the Respondent as a Receptionist/Assistant on 21 September 1994. 

1. Two months after the Applicant commenced employment with the Respondent, another Receptionist (Ms Trucido) employed by the Respondent in the practices resigned and was replaced by a new employee, Ms Gurney. (sic)

4.On 30 March 1995, the Applicant fell and injured her left foot while travelling from work at the Respondent's Chatswood Practice. 

1. On 5 August 1995, Mr Morieson of the Respondent informed the Applicant that the Chatswood practice of the Respondent was to be sold and that, as a result, the Applicants employment would be terminated on 2 September 1995."    

There are other matters in the applicant's contentions of fact and law which whilst not admitted on behalf of the respondent the opportunity has been taken of recording its own position.  These comments are as follows:

Paragraph 2:

"The Respondent conducted an Optometrist Practice at both Grace Bros, corner of Market Street and George Streets, Sydney and at Westfield Shopping Plaza in Chatswood.   The Applicant was to be rostered to work at both practices each week."

Reply by respondent:

"The Applicant was initially employed at the Chatswood practice and at her demand was rostered to work at both practices each week."

Paragraph 6: 

"The Applicant resumed work with the Respondent on 12 July 1995 in accordance with a Work Directions Program devised by Ms Piebenger.  The program did not include the Applicant working in the Chatswood practice of the Respondent."

Reply by respondent:

"The Applicant resumed work on the 12th July 1995 but do not admit that the programme did not include the Applicant working in the Chatswood practice."

Paragraph 8:

"On 23 August 1995 Mr Morieson of the Respondent advised the Applicant that the sale of the Chatswood practice would be delayed and that the Applicant's employment would be extended until the sale was completed."

Reply by respondent:

"On or about the 23rd August 1995 the Respondent advised the Applicant that the sale of the Chatswood practice was delayed and that the Applicant's employment could be extended for 2 weeks."

Thereafter the remaining paragraphs of the applicant's document were not admitted, as follows: 

Paragraph 5:

"As a result of the injury to the Applicant's left foot the applicant:

5.1underwent treatment from an Orthopaedic surgeon, Dr Jerome Goldberg who diagnosed her injury as being a flake fracture of the lateral aspect of the talar region with severely injured lateral ligament; 

5.2had her left foot in plaster for 3 weeks; 

5.3developed a reflex sympathetic dystrophy of her left foot; 

5.4 underwent an intensive course of physiotherapy three times a week administered by Mr Alan Davies at the Eastside Physiotherapy and Sports Injury Centre at Randwick;  and

5.5 was also under the care of a Miss D. Piebenger, a consultant in occupational therapy. "

It is now convenient for me to refer to the issues set out in paragraph 5.  On the evidence presented to me, it is quite clear that Dr Jerome Goldberg treated her injury, and this resulted in her left foot being in plaster for 3 weeks.  Mrs Mooney attended physiotherapy at least three times a week which was administered by a Mr Alan Davies and this treatment continued until November 1995.  Ms Piebenger, a consultant in occupational therapy, had the responsibility for producing a back to work plan and to assist the applicant to resume her full duties.  This was done at the request or suggestion of the workers compensation insurer of the respondent.  It may be that the interests represented in this case on behalf of the respondent is entirely different to that which would be maintained by the insurer of the respondent in any workers compensation proceedings. 

Paragraph 9 was also not admitted, as follows:

Paragraph 9:

"The Applicant was subsequently rostered to work after 2 September 1995, her last day of work for the Respondent to be on Friday 22 September 1995.  The Respondent purported to terminate the Applicant's employment on 20 September 1995 due to the Applicant not being able to work on 21 September 1995, due to her having to attend a physiotherapy appointment that day, which was a day on which she was not rostered for work."

I note that the respondent has not admitted the paragraph but I find as a fact that the applicant was rostered to work after 2 September 1995 and that her last day of work was also rostered initially by the respondent to be on Friday, 22 September 1995.  I will deal with other aspects of these issues subsequently. 

Paragraph 10 is in the following form:

"The position in which the Applicant was employed by the Respondent was subsequently advertised as a vacancy through the Commonwealth Employment Service."

I note that this paragraph was also not admitted by the respondent although there is evidence before me of that fact in the copy of an advertisement for the position (see exhibit "7").  A person named "Alison" was appointed to the position and continued in employment in the Chatswood practice until 1 December 1995.  It also seems that this person continued in employment with the respondent for a further two weeks after that date.

I have not reproduced paragraphs 11, 12, 13 and 14 of the applicant's contention  because they are really submissions of a legal nature about which I need to make a determination.

Generally, these submissions concern a suggestion that the employment of the applicant was not terminated on the grounds of the "redundancy/sale of the Chatswood practice".  It was also suggested that if I were to make a finding in accordance with that ground, then it is suggested the selection process was unfair and the applicant was denied procedural fairness. 

It is also submitted in paragraph 13, that the respondent did not have a valid reason to terminate the applicant's employment. Breaches are alleged in respect of sections 170DC, DE and DF of the Act.

The applicant, Leisa Jane Mooney, was born on 9 September 1966 and is not yet 30 years of age.  Her application was signed on 18 October 1995 and lodged with this Court on 26 October 1995.  

It was originally intended that her last day of service would be 2 September 1995.  This is recorded in the letter from the respondent to the applicant, dated 3 August 1995, which is in the following form:

"Miss Leisa Mooney

Dear Leisa,

As you are aware I am selling the Chatswood practice which is due to complete near the end of the month.   I have spoken to the purchaser who has made her own arrangements for staff.  Consequently, I have no alternative but to terminate your services on Saturday, 2nd September, when your holiday entitlements will be paid.  I am happy to give you a reference.

Yours faithfully,

(signed)

Warwick T Morieson,

c.c. Mr Nigel Miller

Dawn Piebenger"

Mr Nigel Miller is not otherwise mentioned in these proceedings.

Had that letter recorded the actual situation, the applicant would have had a problem.  An application for an extension of time would be required.  However, on the facts as I find them, the termination occurred much later in September as employment of the applicant continued on past 2 September 1995. I am of the view that the document which the applicant received dated 3 August 1995, was no longer effective as being a "written notice of the termination" because her employment by agreement between the parties was continued after 2 September 1995.

It was effective in my view to give her an early warning that the business at Chatswood was to be sold. Prior to 3 August 1995 the proposed sale may have been common knowledge in the practice or amongst employees, particularly as the purchaser at that stage was to be an employee, or to fellow shopkeepers, within the shopping centre.  Either of these circumstances would not be sufficient to require an application for an extension of time under section 170EA(3) to be made by the applicant.

The applicant's job included answering the telephone, filing, filling out Medicare forms, selling contact lenses and some preliminary testing for work to enable an optometrist to carry out the necessary work to fit spectacles or fulfil prescriptions.

Evidence was also given by Mr Warwick Morieson, the Head Optometrist of the respondent which confirms the description of the work given by the applicant.   The salary that was set for the job was $840 per fortnight or $420 per week.   There is no question that the applicant was paid on the basis of that amount when she was in full time employment with the respondent.  

After her initial appointment, training was given by Ms Trucido for some 3 weeks.  The applicant was then sent to Chatswood to learn the process at that shop and there she remained for another 5 weeks.  

After completing her training, the applicant worked at either the City or Chatswood practices in accordance with a roster left in the appointment book.   At first, the applicant was working a few days a week at Chatswood and the balance of the week in the city.  That arrangement continued for about 2 months  The applicant was then rostered to work at Chatswood for 5 weeks.  About the end of the 5 weeks the applicant rang Mr Morieson, and I accept that this conversation occurred around late November 1994.  I find the applicant to have said to Mr Morieson, words to this effect; "If you are going to leave me permanently at the Chatswood position, then I'll have to look for another job".  Thereafter, the applicant was rostered to work 3 days at the city and 2 days at Chatswood. 

The applicant testified that there were few difficulties encountered by her in getting to the Chatswood Practice, although it is a considerable distance by public transport from her home.  There is no doubt it was a more inconvenient place to work than the city when account is taken of her home being located at Bondi. 

There does not seem to have been any untoward incident between the parties during this period and no doubt Mr Morieson was able to form a personal opinion of the applicant.  He was subsequently able to write a reference dated 23 August 1995, in the following terms:

"23 August 1995, 

TO WHOM IT MAY CONCERN

Leisa Mooney began to work for me in September, 1994. 

Her duties were as a receptionist and clinical assistant.  These required her to answer phones, make appointments, front desk reception, write receipts, keep double-entry books, daily balancing, banking, filing, indexing and performing para-clinical tests with automated instrumentation. 

She was always punctual, friendly, obliging and willing to learn. 

Due to the sale of one of my practices I find it necessary to dispense with her services.

I wish her well for the future."

(signed)

Warwick T. Morieson

It would seem to me that the sentence, "She was always punctual, friendly, obliging and willing to learn" would have been based on this period between “September 1994” when she started and 30 March 1995.

On 30 March 1995 the applicant was coming home from work at Chatswood.  The applicant was walking down a flight of stairs at the Town Hall and fell and hurt her left foot.  That evening the applicant rang Mr Morieson at home to report the injury.  Miss Mooney saw an orthopaedic surgeon, Dr Jerome Goldberg, who told her the diagnosis was a severe ligament injury.  There were also consultations with her general practitioner, Dr Joseph Casamento.

A plaster was applied for 3 weeks and the applicant had physiotherapy with Alan Davies as I have already outlined.  It appears from another document that the physiotherapy treatments ceased when there may have been a refusal to continue funding it by the insurer.  There is no direct evidence of this, but this might be inferred from the letter dated 8 November 1995 which is exhibit B in the proceedings, from Geraldine Waters the then Rehabilitation Case Manager, Work Directions Australia:

"Dear Leisa,

I am writing to inform you that I have closed your rehabilitation file.  To date I have not received any medical correspondence which would indicate that you would experience difficulties locating new employment once the injury to your ankle has healed.  Thus no further occupational rehabilitation is necessary at this stage.

Wishing you all the best for the future."

It is not an unusual practice to cease such treatment unless the Workers Compensation Court in this state has made a contrary order.  It does not mean that the applicant did not need additional help in relation to physiotherapy. 

The applicant gave evidence, which was not contested, that she rang Mr Morieson once a week to inform him of progress.  Then it became clear that there was an opportunity for her to commence back at work.  It was originally planned for 12 July 1995, when it was intended that the applicant start work on that day under a Return to Work Plan.  Although the written plan is dated 24 July 1995.  It is quite clear that it was intended that the applicant start work on 12 July 1995. I find that Mr Morieson asked her to start work on the Saturday 8 July 1995 but the applicant told him that a pre-existing commitment at home would prevent her agreeing to his request. The applicant resumed her duties on Wednesday 12 July 1995.

The next issue which arose was whether the applicant could work at Chatswood.  I am satisfied the applicant made an offer to work at Chatswood provided she travelled by taxi at the expense of her employer.  Mr Morieson rejected that proposal by saying: "I haven't got enough money to pay for taxi fares."  It seems to me that this was a reasonable response on behalf of both parties. 

I can comprehend the difficulties for the applicant in going to Chatswood by train where there are stairs to negotiate,  particularly at Town Hall. I acknowledge that I am not familiar with the accessibility of the Chatswood station to people with disabilities.   Although work appears to be generally in progress to install lifts at key railway stations to provide disabled access, there is still the problem of a relatively long train journey having regard to her injury.

At peak periods the train could be expected to be crowded, probably with standing room only.  On the other hand, I can understand the reluctance of Mr Morieson to pay taxi fares to assist the applicant to work at Chatswood.

Nevertheless the parties  avoided a confrontation on this issue and the applicant resumed working for the respondent.  It is to the credit of the applicant and respondent that this occurred.  In this regard I accept what Mr White for the respondent, has said in paragraph 8 of his detailed and forceful submission about these matters.

"Rather than dismiss the Applicant the Respondent at significant cost and inconvenience did the following:

(a) From 31 March 1995 to 12 July 1995 a part-time receptionist and relatives of Mr Morieson attended the City office to fill the position left vacant by the applicant. 

(b)From 12 July 1995 to 21 September 1995 whilst the Applicant was working on a part-time basis Ms Gurney worked full-time in the Chatswood office and other persons were engaged on a part-time basis to make up the hours not worked by the Applicant. 

(c)The Applicant conceded that her duties, post-accident were reduced to enable her rehabilitation to proceed.  She was not required to do banking; she was not required to travel to the Chatswood office and she conceded Mr Morieson did everything he could to assist her rehabilitation;

(d)The Applicant conceded the Respondent complied in every respect with a return to work plan which had been laid down by Work Directions Australia. 

(e)Although the return to work plan envisaged the Applicant increasing her work days from three days a week to four days a week towards the end of August 1995 the Respondent did not require the Applicant to increase her work hours after she supplied a doctor's certificate. 

(d)When the Respondent requested the Applicant to visit the Chatswood office the Applicant refused to do so unless a taxi was provided.  Although the Applicant did not have a doctor's certificate advising against her travelling to Chatswood the respondent did not require her to do so.  Subsequently the Applicant provided a doctor's certificate advising against travelling by public transport to the Chatswood office."

I interpose that the respondent accepted that certificate. 

Then continuing at paragraph 9 of those submissions:

"the evidence clearly shows that the Respondent acted responsibly and reasonably in difficult circumstances.  The Respondent complied with the requests of Work Directions Australia in furthering the rehabilitation of the applicant and also complied with the requests of the Applicant in not requiring her to travel to the Chatswood office or increase her hours of work."

Over recent times there has been a change in the Workers Compensation atmosphere with the emphasis being placed on assisting injured workers back to work.  The premiums have been adjusted accordingly on that basis and there is some advantage to insurers in assisting injured workers back into their former work place.  It is much easier to assist a person back into a job with their former employer where the situation of the injured worker is well known and the circumstances of the accident and injury are understood.  This is easier, than to try and place an injured worker into another position with another employer with the possibility of a new insurer assuming added responsibility.

The work plan prepared by Work Directions Australia (dated 24/7/95) and addressed to Mr Warwick Morieson was due to commence on Wednesday, 12 July 1995.  The plan is as follows:

"Stage I:

Date:             Wednesday, 12 July 1995 to Tuesday, 8 August 1995
Hours:           Four hours per day, two days per week;
  Wednesday  -  9.00 am  to 1.00 pm
  Saturday   -  11.00 am to 3.00 pm

StageII:

Date:             Wednesday, 9 August 1995 to Tuesday, 22 August 1995
Hours:           Four hours per day, three days per week;
  Tuesday    -  9.00 am  to 1.00 pm
  Wednesday  -  9.00 am  to 1.00 pm
  Saturday   -  11.00 am to 3.00 pm

Stage III:

Date:             Wednesday, 23 August 1995 to Tuesday, 5 September 1995
Hours:           Four hours per day, four days per week;
  Tuesday    -  9.00 am  to 1.00 pm
  Wednesday  -  9.00 am  to 1.00 pm
  Thursday   -  9.00 am  to 1.00 pm
  Saturday   -  11.00 am to 3.00 pm

Stage IV:

Date:             Wednesday, 6 September 1995 to Tuesday, 19 September                  1995
Hours:           Four hours per day, five days per week;
  Days and work hours to be determined by Mr Morieson

Stage V:

Date:Wednesday, 20 September 1995 to Tuesday, 3 October 1995

Hours:           Four hours per day, three days per week;
  Six hours per day, two days per week;
  Days and work hours to be determined by Mr Morieson

Stage VI:

Date:             Wednesday, 4 October 1995 to Tuesday, 17 October 1995
Hours:           Six hours per day, five days per week;
  Days and work hours to be determined by Mr Morieson

Stage VII:

Date:             Wednesday, 18 October 1995 to Tuesday, 31 October   1995
Hours:           Pre-injury hours and days

DUTIES:Pre-injury duties as a receptionist for W. & B. Morieson Pty Limited:

Answering the telephone
  Scheduling appointments
  Looking for clients' files
  Filing
  Photocopying and faxing
  Ordering contact lenses
  Contacting clients when their contact lenses arrive
  Pre-testing
  Bookkeeping
  Banking (to be negotiated with employer, not whilst   working half days)

MEDICAL CONSIDERATIONS/RESTRICTIONS:

No prolonged standing/walking
  Raise left ankle as necessary

Review Date:

The Occupational Therapist will provide regular monitoring of Ms Mooney in her return to work to ensure it is safe and successful."

I observe in relation to stage 5 that the plan suggested that the increased hours of work be spread over 5 days.  Stage 7 of the rehabilitation plan was to commence on 18 October 1995.  This was to be a return to the pre-injury hours and days. 

It will be noted that the “Return to Work” plan then refers to the medical considerations and restrictions and specifically mentions that there is to be "no prolonged standing", "walking" and "Raise left ankle as necessary".  The latter advice is also relevant to my earlier remarks about the train journey.  It would be impossible for the applicant to place her foot on the seat of a train during the journey, as there is a regulation providing a penalty if "feet are placed on the seat”.  Although the applicant might have a reasonable excuse to put forward, it would no doubt lead to some difficulty.  It may have been possible for Ms Piebenger to be engaged to work out a travel plan to enable the applicant to travel to the Chatswood practice by public transport.

Other comments contained in the work plan are also relevant:

"Comments:

Ms Mooney was reviewed by Dr Casamento on Wednesday, 28 June 1993.  At this time she was certified fit to return to work for two half days per week.  Ms Mooney returned to work on Wednesday, 12 July 1995.  At review with Dr Goldberg on Thursday, 13 July 1995 Ms Mooney was again certified fit for work for two half days per week.  Dr Goldberg has issued Ms Mooney with a certificate dated until Sunday, 1 October 1995.  Ms Mooney reported that Dr Goldberg had informed her that she was to increase her hours as she felt able.

Due to the fact that Mr Morieson needs to organise locum staff around Ms Mooney he has requested that a program be established that will enable him to plan her work hours in advance.

The Occupational Therapist completed a work place visit on Wednesday, 19 July 1995 to determine the appropriateness of Ms Mooney's work duties for her return to work.  At this time Ms Mooney informed the Occupational Therapist that she was managing her pre-injury duties without difficulty.  She suggested the primary limitation was her functional tolerance for work which she reported is significantly decreased.  Ms Mooney stated that the pain in her ankle increased as the day wore on.

If Ms Mooney is unable to upgrade her hours as identified in the return to work plan she should contact the Occupational Therapist or her treating doctors to further discuss this.

Should Ms Mooney experience any difficulties in her work duties she should report these to either her employer (Mr Morieson), or the Occupational Therapist (Dawn Piebenger)."

Thus the report left open to the applicant and the respondent (Mr Morieson) the possibility of receiving further help from the occupational therapist.

I have already mentioned the letter which the applicant received forewarning her of the proposal that her duties would cease on 2 September 1995.

In relation to her return to work, no doubt it was equally difficult for the applicant after a three week period with her leg in plaster to resume her normal life style.  It can be quite stressful for an active person to rely on another person for personal assistance during this time.  If the period of plaster is quite lengthy it can make the person very depressed.  Whilst I have already acknowledged the assistance provided to the applicant by the respondent, to get her back at work, her role should not be understated.  No doubt it was equally difficult for her to cope with coming back to work after a serious debilitating injury.

On 28 August 1995 the Federated Clerks Union of Australia, New South Wales Branch, filed in the Industrial Relations Commission of New South Wales under matter number 1926 of 95 a claim by that organisation for relief relating to alleged unfair dismissal.  The application included an affidavit signed by Leisa-Jane Mooney on 18 August 1995.  It is important to note that the application, or the request that is made in:

“7C] What orders are sought?                 (a)     that the threatened   dismissal not            occur  [/]

(b)      for reinstatement or
  re-employment?  [ ]

7D]If the Commission considers that it would not be practicable for the individual to be reinstated, will compensation be sought?  Yes [/] No []“

This application, although it is not clear when it was served, came to the notice, I am satisfied, of the respondent before the threatened date of dismissal on 2 September 1995.  This is relevant because of evidence given by Mr Morieson to the effect that he was upset that the applicant was claiming $10,000 in compensation. 

The application also includes:

"STATEMENT AS PER QUESTION 7E

(i)       The amount of compensation sought is    $10,946.00

(ii)      The amount calculated is
            26 weeks x $421.00 (weekly wage)         $10,946.00
           Amount of claim   $10,946.00

(iii)     Compensation will be sought from the employer if the Commission deems reinstatement impracticable. "

Finally, attached to the application is the letter dated 3 August 1995 from Mr Morieson that I have already quoted and then a statement that has been initialled by the applicant as follows:

“8       1.        On 5 August 1995 at 9 am, my employer, Mr Warwick   Morieson gave me a letter of notice, to be terminated on 2                    September 1995.  He said if the sale did not go through I             could keep working there.

Reason for termination was the proposed selling of his   Chatswood store. 

2.        The dismissal is unreasonable as the store may or may not                be sold yet.  The girl he is keeping on started after me.  I             can only work a 4-hour day at the moment, due to my   injury of my foot and am still on Worker’s Compensation.                  Cannot find full-time work as I cannot work an 8-hour day                   yet. 

I feel he has dismissed me as I am on workers   compensation and cannot work an 8-hour day."

No doubt Mr Morieson was disappointed and hurt by this application.  In his evidence he referred to the fact that he had been "employing girls for eighteen years,"  and that this is the first time he had been called to any Court on an employment issue with a possible claim of $10,000 in compensation. 

I find that this particular application by the applicant to be inter alia, a proper course of action.   It was done to commence proceedings that are currently available to assist people to be reinstated using the jurisdiction of the New South Wales Industrial Relations Commission.  No doubt in the New South Wales Commission there were avenues for mediation and conciliation to achieve this objective as there are in the Federal System.  This opportunity to resolve the issues between the parties does not appear to have been taken up by the respondent.

I find that the attitude of Mr Morieson towards the applicant already damaged by the inconvenience of the return to work plan, changed for the worse when he received this notification.  I also find that the applicant's attitude towards Mr Morieson underwent a change as a result of the notification to her in the early part of August that she was to be terminated.  The evidence quite clearly shows the applicant immediately raised with Mr Morieson, her view about, the apparent unfairness of the decision to keep another employee who had less experience than the applicant in the business of the respondent. 

It is convenient to extract further details of the business conducted by the respondent outlined in paragraph 3 of the submissions to me by Mr White as follows: 

"The respondent W and B Morieson Pty Limited trades under the business name of Warwick Morieson Optometrists.  Mr Warwick Morieson is the principal of that business, the business of the respondent, is that of optometry.  As at September 1994 the respondent conducted its business from five locations, three locations in Melbourne, a fourth location in Chatswood (the Chatswood office) and a fifth location in the City of Sydney (the City office).  Mr Morieson, a qualified optometrist, was located in the city office on a full time basis, he had a full time receptionist based at the Chatswood office and a second full time receptionist based in the city office.  The remaining positions comprised full time optometrist together with a part time optometrist. 

In September 1994 1 of the 2 receptionists resigned and as a consequence Mr Morieson approached the Commonwealth Employment Service for the purpose of advertising the position as a receptionist with the respondent.  A copy of that advertisement is exhibit A in the proceedings.”

It clearly confirms the evidence on behalf of the respondent that it was always intended that the applicant would work both at the city and the Chatswood offices.  The work would be required over 5 days per week including Saturday.  The applicant, quite properly when this was put to her in cross-examination, conceded that her view that she was to work in the city office could not be sustained in view of the fact that she was well aware of that advertisement and had applied for the job in response to it.

In a very short time after the termination of the applicant, the respondent was seeking a person who had comparable qualifications to the applicant for a similar position with the respondent.

Another factor in her favour emerges from a comparison between the earlier advertisement with the subsequent advertisement, dated 11 October 1995. 

The two advertisements suggest the same rate of pay per week based on a 5-day week together with employment, from "Monday to Friday and includes Saturday".  The only significant difference occurs in the initial advertisement where, after the notation "transport" the space was left vacant.  Whereas in the second advertisement the notation appears "Transport to Town Hall is required."  In other words the applicant would be required to go to Town Hall and then get the train to Chatswood.  This is something the applicant was unable to do.  However, in my view, this factor could have been avoided by the initiation by the respondent of a "public transport travel plan" and to include this plan into the “Return to Work Plan” which I have referred to earlier in this judgment.

It is convenient to set out exhibit "C" which is a letter dated 23 October 1995 addressed by the respondent as follows: 

"Dear Alison,

Welcome to your employment with me as a casual, temporary employee.

As discussed your employment with me will be from 23 October, 1995, until 9 November 1995. 

During this 3-week period I will discuss with you whether we will enter into a new contract of employment to commence when this one expires. 

Your salary will be $12.00 per hour, thus you will be paid $288.00 gross per week less $87.00 tax, which is at the “no tax free threshold”, to give a net income of $201.00 per week."

Warm regards,

Warwick T Morieson”

This salary was a substantial saving on what the respondent was paying the applicant on a normal weekly basis.  The actual expenditure may have been less as the respondent was only paying for the 4 hours per day from its funds, while the balance was being paid by the workers compensation insurer.  It should not be forgotten that 23 October 1995 was well within the anticipated Stage 7 of the "Return to Work" plan when the applicant was expected to return to her "pre injury hours and days".

Mr Morieson admitted in evidence that the person he selected continued in the employ of the respondent until the business was finally sold on 1 December 1995.  Thereafter that person stayed a further 2 weeks. The reason given for her staying was because Ms Gurney had had to work much harder than he had anticipated during this period.  That further 2 weeks would take the period of employment up to 15 December 1995.  I infer that the respondent, on that date, then terminated the person referred to as Alison in the letter dated 23 October 1995. 

Paragraph 15 of the respondent's submission is as follows:

"In or about mid-September 1995 the settlement date for the Chatswood office was nominated to be 22 September 1995.  Consequently Mr Morieson advised the applicant that she could work the week commencing 18 September 1995.  In that week the applicant was due to work on Tuesday, 19 September, Wednesday, 20 September and Friday, 22 September 1995.  On Wednesday, 20 September Mr Morieson requested the applicant to attend the Chatswood office.  The applicant declined  unless a taxi fare was provided.”

At this stage there were increasing tensions between the applicant and Mr Morieson which were destroying the previously established pattern of co-operation.  I think it was open to the applicant, clearly in my view, to properly decline to work at Chatswood unless some attempt had been made with Work Directions Australia to review the means of public transport from her home to Town Hall Railway Station and Chatswood.  It may have been that alternative public transport such as a bus from Town Hall or Wynyard was available. Miss Piebenger or another rehabilitation specialist could have travelled with her for the first few days.  It might also have been possible for the applicant to travel in off peak periods and the hours could have been varied to accommodate the requirements of Mr Morieson's and also to assist the applicant to come to terms with the fact that she would have to use public transport in the future to get to her employment at Chatswood.  Unfortunately neither side thought of, or suggested adopting any of those alternatives. 

I find the events on Wednesday 20 September 1995 contributed even further to the breakdown in the employment relationship between the two individuals.  The submission on behalf of the respondent  then states:

"Later that day Mr Morieson, the applicant, had the following conversation:

Mr Morieson: "You are due to work on the 22nd but I would like you instead to work on the 21st." 

The applicant: "No, I have a physio appointment." 

Mr Morieson: "You can change it." 

The applicant: "No, I can't." 

Mr Morieson: "You are finishing today at 2pm.  You can't work for me tomorrow and I don't need you on Friday so you might as well finish up now." 

The applicant agreed to that course of action."

The oral testimony given before me generally accords with that summary.  I do not think there is much difference between the evidence of the applicant and Mr Morieson.  I note that under cross-examination by Mr White, Miss Mooney said as follows:

"Ms Mooney, what I suggest to you is that Mr Morieson said to you words to the effect:  you are due to work on Friday, but I would like you to work on Thursday?‑‑‑No, he said, "Could you work tomorrow on the 21st" and I said, "No, I have a physiotherapy appointment".  

Why did you not tell him, "You know I cannot work four days a week"?  Did you say that to him?‑‑‑No, I just knew that I had a physiotherapy appointment and I had to go to that for my foot."

I find that on Wednesday, 20 September 1995, Mr Morieson made a request to the applicant to change her rostered working day from Friday 22 September 1994 to the Thursday being 21 September 1994 and to finish her employment on that day.  It may have been a coincidence but that Thursday was the first anniversary of her employment.  The reference dated 23 August 1995 does not mention her actual starting date.  It states: "Leisa Mooney began to work for me in September 1994".

Certain financial consequences flow from the passing of the first anniversary of the employment of the applicant. Thus, in this case, Section 170DB would have a different effect if the applicant had worked on the Friday, 22 September 1994 rather than completing her employment on Thursday 21 September 1995 as Mr Morieson requested or indeed as she did on Wednesday 20 September 1995.

In making that determination I have taken account of the fact that Thursday 21 September 1995 was the anniversary of the appointment of the applicant. It was a very significant day because under section 170DB of the Act, if the applicant had ceased working on that day then it is arguable that only one weeks notice was required being a payment of $420.00. Whereas, if the applicant worked as she had been rostered to do so on Friday 22 September 1995, then a payment to her would have been required of $840.00 as she would have ceased working after the anniversary of her appointment with the respondent.

I find the words used by Mr Morieson "You are finishing today at 2:00pm.  You can't work for me tomorrow and I don't need you on Friday, so you might as well finish up now", constituted a termination of the employment of the applicant at the initiative of the respondent.Whether the applicant agreed to that course of action or not I find that there was a termination of the employment of the applicant by the respondent.

Thereafter there was some further discussion when the applicant returned to her former employment on 21 September 1995.  Exhibit 5 is a medical certificate for Miss Mooney dated 21 September 1995 - the doctor's signature is not easily identified - and the certificate is as follows:

"This is to certify that I examined Leisa Mooney on 21.9.95.  In my opinion she is suffering from respiratory tract infection.  She will be/was unfit for work up to and including the 21/9/95.

signed"

The applicant received from the respondent a document, dated 21 September 1995, as follows:

"Leisa Mooney,

19.9.954 hours

20.9.95          4 hours

8 hrs @ 10.25          82.00

Tax 0.00                82.00

Holiday pay:

4 weeks @ $420.00  1680.00

Tax 300.00          

1380.00         1380.00

Cheque attached  1462.00."

I have already mentioned the coincidence between her date of first employment and the termination date.  I am satisfied this would have become quite apparent to the respondent when he was working out these payments.  I have already indicated the roster originally determined by the respondent was to include her working on the 22 September 1995.

I also refer to the evidence given by Mr Morieson as follows:

"On Friday, 22 September the applicant attended your office and collected her final pay?"

Answer:

"Yes."

Question:

"You provided her with a separation certificate I note setting out calculations?"

Answer:

"How I had arrived at the cheque."

Question:

"The cheque was based on an amount relating to work done that week and annual leave?"

Answer:

"Annual leave for 1 year's employment."

Next sentence:

"Did it include any notice?  You did not pay her any notice, did you?"

Answer:

"No."

The respondent, when he was giving his evidence, emphasised the words "one year's employment". 

The respondent admitted in his evidence that the $420.00 was not paid. I find a contravention of section 170DB of the Act has occurred. The contravention is the non payment of 1 weeks wages in lieu of notice.

As I said earlier, it seems to me that there had been a deterioration in the working relationship that had previously undoubtedly been good between Ms Mooney and Mr Morieson.  

I turn to the question of the means of selection of the applicant for the redundancy.  In this regard I refer to evidence from Mr Morieson, page 51 and page 52 of the transcript as follows:

"Right.In relation to the receptionist position, you had how many receptionists working at that time?‑‑‑Two.

And they were?‑‑‑Leisa Mooney and Melinda Gurney.

Did you make a decision as to whom you would prefer to stay after only one receptionist position became available?‑‑‑Yes.

Who was that?‑‑‑Melinda Gurney.

Why was that?‑‑‑She was better, more efficient, more intelligent.  She was doing a TAFE course which was going to help me with another venture that I was conducting.

What was this venture that you were conducting?‑‑‑ "

Further in this evidence it is recorded:

MR. WHITE:   "And what was the venture that you were then indulging in?‑‑‑This was a company that was set up called "Sports Person First" to manage sports people.

And when did Sports Person First become operating?‑‑‑I think the date of incorporation of the company was sometime in April 1995.

Was Miss Gurney doing a TAFE course to assist you in operating that business venture?‑‑‑No, she was doing a TAFE course which coincided with her being able to help me."

On the basis of the evidence from the respondent I find that there was a breach of section 170DC in that the selection process which the respondent went through included elements related to the employee's conduct or performance. In that regard it is necessary for the employee to be given the opportunity to defend herself against the allegations made or that the employer could not reasonably be expected to give the employee that opportunity. This is not a case where this woman was likely to do anything which would harm the practice and it would have been helpful if that process had been completed. There is no evidence of that opportunity being given to the applicant.

I am fortified in these remarks by the observations contained in the joint judgment of their Honours in Kenefick and Others v Australian Submarine Corporation (1996) 62 IR 107 (Full Court). Moreover, there were a number of cases to which I referred counsel for the parties on the general question of redundancy. I do not propose, because I note the time, to quote them in full but it is sufficient to set out an extract from decision of the Full Court in Kenefick and Others v Australian Submarine Corporation (1996) 62 IR 107 as follows:

"It would be anomalous if s.170DC can be construed as providing an opportunity to an employee to defend himself or herself against allegations of misconduct or inadequate performance made in isolation but as denying the same opportunity to an employee against whom similar allegations are made in the context of a need to select a few employees for termination from a larger pool because of an excess of labour.  In both cases an assessment is made by the employer of performance and conduct.  In both cases the assessment determines whether or not the employee's employment is terminated.  There is an equal need for the employee to have an opportunity to respond because, in each case a convincing defence to the allegations may persuade the employer not to terminate the employment of that employee.  The need for an opportunity to defend is illustrated in the evidence of the appellants in this case.  For example, the fifth appellant was selected for retrenchment in part because of the quality of his workmanship.  In his affidavit, filed before the Judicial Registrar, that appellant said that no workmanship of his ever had to be repaired but on one occasion when his work had been questioned it turned out that the work had been done by another tradesman."

There was no opportunity for the applicant to defend herself against the allegation of "inadequate performance."

I therefore find that there has been a contravention of section 170DC of the Act.

The application claimed reinstatement, compensation and damages.  During the course of the proceedings, I inquired of counsel for the applicant what claim was to be included under the heading "damages".  No claim was pursued.  I am told that it was suggested that it was a question of underpayment of wages.  It seems to me that it would have been more appropriate to pursue this issue in this Court, rather than have the possibility of further proceedings involving these parties.  

There is another medical certificate which should be referred to in this judgment. In that respect, I refer to the Work Cover Authority certificate issued on 1 March 1996, by Dr Goldberg to the effect that the applicant is able to do light sedentary duties on a 35-hour week basis.  Further, the applicant has testified to me that she has been certified as able to do 35 hours a week at the time of the application.  

Is it impracticable to reinstate the applicant?  The discussion of the word "impracticable" in the joint judgment of Wilcox CJ and Keeley J in Liddell v Lembke (1994) 56 IR 447 at 466 is helpful on this issue:

"If any further indication of the fact that Parliament did not intend this Court to have an open discretion in relation to the granting of relief under s 170EE is required, it is provided by the word "impracticable" in s170EE(2).  The Court may order the payment of compensation for unlawful termination (as distinct from an order under s170EE(1)(b)(ii) concerning remuneration lost in the period between termination and reinstatement) only where it thinks "the reinstatement of the employee is impracticable".  Plainly, it was Parliament's intention that the primary remedy for unlawful termination should be reinstatement and that compensation should be available only where this was impracticable.

The precise meaning of  "impracticable" in this context should be left to another day; the question is one of general importance and it was not fully argued in this case.  But, although "impracticable" does not mean "impossible", it means more than "inconvenient" or "difficult".  The imposition of such a stringent limitation on the Court's power to award compensation, rather than order reinstatement, is inconsistent with the notion that Parliament intended the Court to have an open discretion whether to intervene at all."

I have also taken into account the observations on this issue by Gray J in Liddell v Lembke at page 473:

Thus, when this Court finds that a contravention of a provision of sub-division B (other than s 170DB or 170DD) has occurred in relation to a termination of employment, it will ordinarily grant the remedy of reinstatement specified in s 170EE(1).  It does not possess an unfettered discretion to refuse that remedy upon any view as to the relative merits of the parties.  The only circumstance in which it can refuse to grant the remedy is if both forms of reinstatement specified are "impracticable".  The word "impracticable" means "that cannot be carried out, effected, accomplished, or done; practically impossible" (Oxford English Dictionary) or "that cannot be put into practice with the available means" (Macquarie Dictionary).  Attention is directed to the practicability of the remedy, not to its practicality.  Section 170CB of the federal Act provides that an expression used in division 3 of part VIA has the same meaning as in the Convention.  Article 10 of the Convention uses the expression "not ... practicable".  The French text of the Convention (which is equally authoritative with the English) renders the relevant part of article 10 as "n'estiment pas possible dans les circonstances", which I understand to translate directly as "do not consider it possible in the circumstances".    The use of the French word "possible" shows the extent to which  the Court must go before it can refuse to reinstate.

If s 170EE(1) of the federal Act were to be construed as giving the Court an overriding discretion to refuse to order reinstatement in circumstances where reinstatement was practicable, the employee concerned would have no remedy at all when the discretion was exercised against him or her.  Pursuant to s 170EE(2), the remedy of compensation is available only "If the Court thinks ......that the reinstatement of the employee is impracticable ....".  It is extremely unlikely that the parliament intended there to be a discretion not to order reinstatement, the exercise of which against the employee must result in the employee receiving nothing.

Reinstatement is therefore required if it can be done.  If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable.  Its practicability does not depend on notions of loss of confidence in the employee.  Nor does it depend on the existence of grounds which would have justified termination but which were not relied on, because unknown to the employer at the time of the termination.  The common law relating to contracts of employment is not imported into the provisions of the federal Act which implement the convention.  The Convention itself may bind countries which do not have systems of regulations of employment based on the law of contract, or which  have different contract laws.  See Association of Professional Engineers, Scientists and Managers Australia (APESMA) v Skilled Engineering Pty Ltd (1994) 54 IR 236 at 244.  The notion that equitable remedies of specific performance of a contract of employment would always be refused if the mutual confidence considered necessary to the employment relationship had broken down has nothing to do with the question whether reinstatement is "impracticable".  Nor can a previous repudiation of the contract, which was unknown to the employer, but which has since come to light, render reinstatement "impracticable".  If that were to occur, it would compound the contravention of sub-division B which the Court will have found to exist.  An employee would, in effect, be deprived of employment without having been given the opportunity to defend himself or herself which is required by s 170DC."

On 16 April 1996, being the last occasion the matter was heard before me, a letter was produced on a letterhead:

"Paris
Miki             Paris Miki Optical
  Vision Express

On the bottom of the letterhead is the following:

Paris Miki Australia Pty Ltd
 (Inc in New South Wales)               ACN No 003409783

It appears that this company may be a holding company or franchise promoter for the firms of optometrists or optometrical practices which are advertised under the business name "Vision Express" in and about the city and suburbs in this state.  The letter is addressed to Mr Morieson and dated 4 April 1996:

"Dear Mr Morieson,

This letter serves of  notice that as of the 14th June 1996 Paris Miki will cease to trade at the Grace Bros City store, Level 3, Cnr George & Market Streets, SYDNEY, NSW 2000. 

Due to the reconstruction of the Grace Bros site we are unable to continue your Optometry practice at this location. 

If you have any questions regarding this notice please contact me.

Yours faithfully

signed

Shojiro Sakai

REGIONAL MANAGER”

Without this letter I would have taken the view that this was a clear case when reinstatement could be ordered.  The respondent was and remains in practice even though, at the present time, there being an indication that his Sydney store is to change it position and he will be required to relocate.  The Respondent still operates stores in Victoria.  The business is still continuing. 

I note the reservations of Mr Morieson as to whether he could work alongside Miss Mooney.  I acknowledge his strongly expressed view, particularly as he has specifically mentioned that this is the first time any female employee has seen fit to challenge a decision made by Mr Morieson in his employment history in the NSW system and in this Court.

Again the observations of Wilcox CJ and Keeley J in their joint judgment in Liddell v Lembke at page 462 is of assistance:

"A more significant matter is that the New South Wales Act does not provide for the vindication of legal rights.  In contrast to Division 3 of part VIA of the commonwealth Act, which specifies six different situations in which a termination is "unlawful" (see ss170DB, 170DC, 170DD, 170DE, 170DF and 170DG), the New South Wales Act does not refer to the possibility that a termination may be unlawful, as distinct from harsh, unreasonable or unjust.  The lawfulness of the dismissal is irrelevant.  The New South Wales statute does not provide a mechanism whereby a dismissed employee may obtain a declaration that his or her dismissal constituted a violation of the law.  Such a declaration may be important.  Desire for vindication may be an important element in an employee's decision to make a claim.  The wish to make a point about the unlawfulness of a dismissal, so as to establish a precedent and reduce the chance of repetition, may constitute a primary reason for a trade union taking up an employee's case, as permitted by s170EA(2).

There was debate before us as to whether a declaration of unlawful termination was now available under the Commonwealth Act, having regard to the fact that the new s 170EE ( in contrast to the original s 170EE) makes no reference to a declaration.  But we have no doubt about this.  Section 417 provides that the "Court may, in relation to a matter in which it has jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed".  This provision is cast in wide terms.  It is not excluded by anything in Division 3 of Part VIA.  It is commonplace for a court having power to make a declaration of right to use that power to declare that particular conduct constituted a breach of particular legislation or was otherwise unlawful."

The applicant was entitled to challenge the decision in the established Court System.  Nevertheless I believe the letter to be quite crucial and therefore I find that the reinstatement of the applicant in the business is impractical.

"Wendy Ho" was also an employee of the respondent who was supposed to purchase the Chatswood business in August 1995.  However this purchase did not go ahead and presumably another purchaser took over the business on 1 December 1995.  Mr Morieson gave evidence, and I accept that this occurred, that on or about July 1995 he approached "Wendy Ho" to enquire as to whether the services of any employee, who would otherwise be retrenched because of the sale of the Chatswood office, were required by her.  "Wendy Ho" declined that offer.

Whilst that approach to "Wendy Ho" assists the case for the respondent although she was not called to give evidence.  It appears to me to have this difficulty in that "Wendy Ho" was already an employee of the respondent and may not have been prepared to take over the obligation and accept the responsibility which the respondent had shown in co-operating in the return to work program. As well, "Wendy Ho" may not wish to incur any liability for continuing workers compensations payments through her proposed insurer.

Although I have accepted that Mr Morieson attempted to obtain employment for the applicant in the Chatswood business in July 1995 when it was thought it was to be taken over by "Wendy Ho".  This had some unforeseen or unacknowledged difficulties besides the ones I have already mentioned earlier in this judgment.  Namely, the applicant received a medical certificate from Dr Casamento dated 14 August 1995 which certified her “unfit for travel by public transport to Chatswood as too long with the dependent foot.”

I also made a reference to the decision of Von Doussa J in Gary Sinclair v Anthony Smith and Associates Pty Ltd  (unreported IRCA decision no 663/95, von Doussa J, 1 Dec 95).  This case, and others, were very forthrightly discussed between Mr White and myself and Mr Higgins in their submissions.  In particular I respectfully adopt the observations of his Honour von Doussa J as follows:

"Requirement for consultation is in the award not only to permit the possibility of arriving at some rearrangement of the work place which is lesser consequences than dismissal, but also to allow time for the employees to deal with the emotional, family and domestic stresses that are likely to descend upon them when their employment is brought to an end.  The importance of those non-workplace personal factors cannot be underestimated, and finds expression in the reasons of various tribunals that have had to consider clauses of this type.

To put it into colloquial terms it is desirable as the award recognises that employees whose security of employment is about to be shattered be let down gently.  If they are forewarned and counselled they are more likely to be able to accommodate to their new situation to adjust themselves to the search for other work, and the like.  Moreover, it is generally recognised that if an employee is in work and is given time off to go and look for other work the prospects of finding new employment are somewhat better than if the person concerned is required to seek work as an unemployed person on social security."

In my view and in accordance with the observations of Von Doussa J which I have set out above, the respondent could have:

(a)      sought help from the insurer; eg to subsidise travel costs to   Chatswood; or

(b)      established a travel plan to ease her into travel to Chatswood.

I recognise that the applicant had expressed a wish not to work at Chatswood.

No doubt Mr Morieson has contacts with other practices in his field which he could have approached to assist the applicant to obtain employment.  There could have been discussions with a view to adjusting the hours of work of both receptionists.  Miss Gurney could have been transferred to "Sports Person First".  These are a few avenues which were available and could have been explored and which were not taken, on the evidence given before me.

I add that it is even more significant for someone who is the subject of a  workers compensation claim and who, if they tell the truth to any prospective employer, that they have such an outstanding claim, will find it to be very difficult, if not impossible to gain other employment. 

In this matter I also refer to the principles contained in the Termination of Employment Recommendation set out in Part III of schedule II of the Act, which is headed: 

"Supplementary Provisions Concerning Terminations of Employment for Economic, Technological, Structural or Similar Reasons."

I refer in particular to the following clauses:

"21.   The measures which should be considered with a view to averting or minimising terminations of employment for reasons of an economic, technological, structural or similar nature might include, inter alia, restriction of hiring, spreading the work force reduction over a certain period of time to permit natural reduction of the work force, internal transfers, training and retraining, voluntary early retirement with appropriate income protection, restriction of overtime and reduction of normal hours of work.

22.      Where it is considered that a temporary reduction of normal hours of work would be likely to avert or minimise terminations of employment due to temporary economic difficulties, consideration should be given to partial compensation for loss of wages for the normal hours not worked, financed by methods appropriate under national law and practice.

Criteria for Selection for Termination

23(1). The selection by the employer of workers whose employment is to be terminated for reasons of an economic, technological, structural or similar nature should be made according to criteria, established wherever possible in advance, which give due weight both to the interests of the undertaking, establishment or service and to the interests of the workers.

23(2). These criteria, their order of priority and their relative weight, should be determined by the methods of implementation referred to in Paragraph 1 of this Recommendation."

In relation to this case, it appears there may have been some prospect of an internal transfer.  There may have been some prospect of both Ms Gurney and Ms Mooney reducing their hours of work.  There would also be the possibility of perhaps the applicant commencing training at a TAFE with a view to being employed in the Sport Person First project.  This was a business which Mr Morieson was involved in with other business persons.

Finally I refer in particular to:

"24.     Workers whose employment has been terminated for reasons of an economic, technological, structural or similar nature, should be given a certain priority of rehiring if the employer again hires workers with comparable qualifications, subject to their having, within a given period from the time of their leaving, expressed the desire to be rehired.

24(2). Such priority of rehiring may be limited to a specified period of time.

24(3). The criteria for the priority of rehiring, the question of retention of rights - particularly seniority rights - in the event of rehiring, as well as the terms governing the wages of rehired workers, should be determined according to the methods of implementation referred to in paragraph 1 of this recommendation."

At all times, the evidence shows that the applicant did not want to lose her job. The testimony of Mr Morieson shows that the respondent employed another female in the position formerly held by the applicant, who, it turned out, continued in her employment right up until the middle of December.  In my view the respondent should have offered the applicant the opportunity of a rehiring.  This would have given the applicant, on the basis of the plan which I have already set out, time to get herself back to full-time employment and perhaps restore herself to a situation where the applicant could legitimately go to a prospective employer and say, "I'm able to work a 35-hour week", as according to the medical evidence, can now be done by her.

In the light of all of these circumstances, I would have made a finding that the termination of the applicant was harsh unjust and unreasonable. 

I also find that the respondent has contravened section 170DF(1).  For the benefit of Mr Fitzgerald, paragraph (a) reads; "Temporary absence from work because of illness or injury -"

In that respect I regard the fact that the applicant was working on a part-time basis in order to restore herself to full-time employment as falling within the concept of temporary absence from work because of illness.  The applicant was temporarily absent from her full-time work position only until the applicant was able to repair her injured leg and resume her full duties which was predicted in the Work Plan as being Wednesday 19 October 1995.

Finally in paragraph (e):

"The filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations to recourse to competent administrative authorities."

In view of the way in which Mr Morieson gave his evidence and his responses under cross-examination, I find that it was a factor in the decision to terminate the applicant because of the lodging by the Union of the claim in the Industrial Relations Commission of NSW on behalf of the applicant.  This further changed the attitude he had to the applicant in a substantial way.  I find the employer to be in contravention of section 170DF(e).  Although I acknowledge as I have already mentioned, the applicant had seriously deteriorated in her attempts to continue a good working relationship with Mr Morieson. 

In case this matter is to be reviewed, I mention that on the evidence before me I would have found a valid reason for the termination pursuant to section 170DE(1).  I accept the respondent, was genuine in his attempt to sell the Chatswood business.  During the evidence there was no question raised that this was not the case.  As the reported cases illustrate this decision is not up to me to investigate unless the sale of the business was, not as it were, at arms length.  I accept the evidence of Mr Morieson that for whatever reason he wished to sell the Chatswood business, and he did sell it on 1 December 1995.

If I had been required to come to a decision in relation to 170DE(1), then it would be necessary to consider Section 170DE(2), that is:

"A reason is not valid if, having regard to all the circumstances of the case, including the employees capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where reason may be taken not to be valid."

There is now a significant and overwhelming line of authority on this issue.

In Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 335, her Honour Beazley J quotes with approval the judgment of Stanley J in Corkery v General Motors-Holden's Limited (1986) 53 SAIR 531:

"..... The intent is that where redundancies or retrenchments must unfortunately occur, the impact should, as far as is humanly possible, be minimised, so that the employees directly concerned can see that the selection process has been carried out fairly.  A departure from those principles without good and just reasons may well lead to the conclusion that the dismissal should be regarded as harsh, unjust or unreasonable, even if economic or other valid considerations make the redundancies necessary."

Further at 336  her Honour states:

"There have been a number of recent cases in this court where the requirement of consultation in the case of redundancy has been emphasised:  see Scott v Westmeats Pty Ltd (Ryan JR 12/9/94) and Carydias v The Greek Orthodox Community of Melbourne and Victoria (Staindl JR 31/3/95).  In Scott's case, it was observed that the failure to consult had meant that there was no exploration of other options with the employee and no inquiries were made as to alternative work which might have been found for the applicant."

Beazley J continues at 337:

"In my opinion, notwithstanding that there were negotiations with the union, the failure to consult Mr Goulding about the redundancy, the failure to consider alternate employment options, either with him directly or with the union, and the failure to provide him with any counselling or assistance in relation to the redundancy or in obtaining other employment, made the termination of his employment harsh, unjust or unreasonable."

In the light of these authorities, I would have had no hesitation in determining that the termination of the applicant was harsh, unjust or unreasonable given the desirability of assisting the applicant back to full time work prior to her termination from the employment.  This coupled with the failure of the respondent to address with the applicant any of the issues set out in the judgment would render the decision harsh, unjust or unreasonable.

On the compensation issue, I listened carefully to the forthright and strong submissions from Mr White that I should adopt, if I held against him, a weekly figure, of $120.00 being the amount that was paid for the actual time worked.  In my view that submission fails because it does not take into account the fact that the applicant was, during that period, still receiving supplementary income support until November 1995.  In addition to what Mr Morieson was paying, that amount was being supplemented by payments made by the workers compensation insurer. On that basis, too, I have also proposed to adopt the compensation rate of a normal rate of pay of $420.00.

It may be, for example, in the light of the comments that I have made about the difficulties that the applicant has encountered as a result of the physiotherapy being stopped and other matters concerning the termination of the "Return to Work" plan, that the respondent may have some claim for reimbursement from the Workers Compensation Insurer.  It may be  that it would be possible for the respondent to seek to be reimbursed from the insurer.  In my view the position could and should have been continued with a gradual return to work on a full time basis. 

With regard to the assessment of compensation,  I have taken account of clause 24 of the Termination of Employment convention which suggests that there should be a certain priority of rehiring if the employer again hires workers with comparable qualifications.  In those circumstances I feel that it would have been appropriate to rehire Ms Mooney for the period which the female, Alison was employed.  That being as I have indicated earlier in my judgment, 15 December 1995, which would coincide with the Christmas trading period.  This is a notoriously busy time for retailers and I would anticipate that there might have been some reason for the applicant to continue in her employment until immediately prior to the Christmas holidays, which is 22 December 1995.  I consider it appropriate to allow for a thirteen week period for the rehiring.

In making this decision, I have taken account of the circumstances of both the employer and the employee as disclosed in the evidence to me, and the fact that the employee is likely to have difficulties in gaining other employment. I have taken into account in relation to the circumstances of the case the attempts by both sides, Mr Morieson for his part and Ms Mooney for her part to try and get her back to full-time employment.

I am leaving aside the question of her pregnancy which is a significant although different, issue. I am informed that the baby is due in the latter half of this year. Because of the finding I have made that reinstatement is impracticable it has not been necessary for me to consider the question raised by her pregnancy. Namely, the impact her condition would have on any order for reinstatement. In particular her ability to take maternity leave in accordance with section 32(2) of the Industrial Relations Act 1991 (NSW).

I observe that the commencement date of the ten week notice period which the applicant was required to give under the legislation is she were to take leave was passed during the course of the hearing.   This may have required the use of a declaration by the Court to require the employer to accept that the appropriate notice was given if an order for reinstatement had been made.  In the light of the decision I have come to, it is not necessary for me to further consider this issue.

I adopt a figure of $420.00 as the weekly wage. I order $420.00 to be paid for the contravention of section 170DB of the Act. I further assess the compensation which is appropriate under section 170EE to be $5,460.00

The appointed time for delivery of my decision was 9.30am 22 April 1996.  This time and date was agreed with counsel for the parties on 16 April 1996, after the hearing had concluded at 4.20pm. 

At that time there was no appearance of behalf of the respondent. 

I stood the matter down ad directed Mr Higgs, counsel for the applicant to make enquires of the representatives of the respondent. 

Further in the hearing, Mr Fitzgerald, solicitor, then appeared and I delivered my judgment.  At the conclusion of my judgment I suggested that as Mr Fitzgerald was unfamiliar with the case he may need to get instructions on any submission the respondent wished to make to me as to the time to pay the amounts ordered or to agree with the applicant that I issue a stay of the orders I intended to make on agreed conditions between the parties.

The matter came before me on 26 April 1996 when I stood the matter over for further directions to 9.30am 30 April 1996.

On 30 April 1996, with Mr Higgs representing the applicant and Mr Fitzgerald for the respondent, I made orders as follows:

1. The respondent pay $420.00 for contravention of s170DB(2) of the Act within 7 days of today.

1. Compensation of $5,460.00 to be paid within 21 days of today.

The Court Notes that:

1. The applicant neither consents to nor opposes granting a stay of the            orders conditional on the respondent.

a.paying $420.00 within 3 days of today to the solicitor for the applicant whose receipt shall be sufficient discharge of this obligations.

b.the amount of compensation of $5,460.00 (gross) to be paid by first instalment of $2,730.00 within 28 days of today (4pm Tuesday 28 May, 1996) to applicant’s solicitor whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

c.a further instalment of $1,400.00 to be paid by 4pm 18 June 1996 to applicant’s solicitor whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

d.a final instalment for the balance of $1,330.00 to be paid by 4pm 9 July 1996 to the solicitor for the applicant, whose receipt on behalf of the applicant will be sufficient discharge of this obligation.

I certify that the preceding fifty-two (52) pages are a true and correct copy of the Reason for Judgment of Judicial Registrar McIlwaine.

Associate:     C Sternberg
Date:              18 June 1996

APPEARANCES

Counsel for the applicant:  Mr J Higgins
Solicitor for the applicant: Argyle Partnership

Counsel for the respondent:           Mr S White
Solicitor for the respondent:  Helliers Solicitors