Namroud v LSR Autobody Pty Ltd
[2015] FCCA 342
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAMROUD v LSR AUTOBODY PTY LTD | [2015] FCCA 342 |
| Catchwords: INDUSTRIAL LAW – Whether applicant was unlawfully dismissed in breach of the Fair Work Act 2009 (Cth) – whether the respondent engaged in unlawful adverse action in terminating the applicant’s employment as a panel beater – whether applicant was given reasonable notice of termination – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth) ss.340, 341, 545, 546 Fair Work Regulations 2009 (Cth) r.3.01 |
| Cases Cited: Ridge v Baldwin [1964] AC 40 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 |
| Applicant: | ROUKOS NAMROUD |
| Respondent: | LSR AUTOBODY PTY LTD |
| File Number: | SYG 2872 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 24 November 2014 25 November 2014 |
| Date of Last Submission: | 5 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anthony Rogers |
| Solicitors for the Applicant: | Harrington Maguire & O’Brien |
| Counsel for the Respondents: | Mr Michael Easton |
| Solicitors for the Respondents: | Barringer Leather |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2872 of 2012
| ROUKOS NAMROUD |
Applicant
And
| LSR AUTOBODY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant sues the respondent for damages for breach of an employment contract and for compensation arising from alleged contraventions of various sections of the Fair Work Act 2009 (Cth) (“the FW Act”). The applicant also seeks the imposition of pecuniary penalties against the respondent pursuant to s.546 of the FW Act.
At the commencement of the hearing, counsel for each of the parties confirmed that the issues between them were as agreed in a Statement of Agreed Issues, filed on 10 June 2014, as follows:
“1. Was the Applicant dismissed from his employment with the respondent:
(i) in breach of an implied term in his contract of employment that he was entitled to reasonable notice of termination; and/or
(ii) in circumstances such as to constitute adverse action within the meaning of section 340(1) of the Fair Work Act?
2. If the answer to either 1(i) or 1(ii) above is affirmative:
(i)(a) did the applicant thereby suffer any loss and/or damage; and
(b) if so, what is the quantum of such loss and/or damage?
(ii) ought the Respondent be required to pay any pecuniary penalty (or penalties) for any breach(es) of the Fair Work Act?
(a) Do the written terms and conditions of employment of the applicant (Annexure RN1 to the Affidavit dated 20 December 2013) displace any implied term of reasonable notice?
(b) If there is an implied term of reasonable notice that has in fact been contravened, is the applicant obliged to mitigate his loss?
(c) If there is an implied term of reasonable notice that has in fact been contravened, has the applicant in fact wholly or partially mitigated his loss?
(d) If the First Respondent did in fact take adverse action against the applicant within the meaning of s.342 of the Act, did the Respondent take this adverse action because of the alleged workplace right?”
The Amended Statement of Claim upon which the applicant relies pleads that the applicant was dismissed because of his age and temporary absences from work because of illness or injury.
Following the completion of counsel for the applicant’s cross-examination of the director and owner of the respondent, Mr Lee Koudsy, leave was granted to the applicant to amend the pleading essentially to add a further particular of conduct allegedly in contravention of the FW Act. That amendment is as follows:
“20A. The respondent took the action pleaded at paragraph 18 because the applicant:
i. Was entitled to the benefit of a workplace law; and/or
ii. Was able to initiate, or participate in, a process or proceedings under a workplace law;
iii. Was able to make a complaint in relation to his employment.
21. By reason of the matters pleaded in paragraphs 18, 20 and 20A the first respondent contravened s.351(1) of the Fair Work Act 2009 (Cth).”
Paragraph 18 of the Amended Statement of Claim pleaded the applicant’s dismissal occurred on 11 October 2012 and Paragraph 20 pleaded that the applicant’s termination was because of his age.
The Evidence
On 10 June 2014, the parties filed an Amended Statement of Agreed Facts. I make findings in accordance with the Amended Statement of Agreed Facts as follows:
“1. The Applicant was employed by the Respondent from 7 May 2002 until 11 October 2012.
2. The Respondent was at all material times incorporated pursuant to the Corporations Act 2001 (Cth).
3. On and from 1 January 2010:
(a) The Applicant’s employment was governed by the Vehicle Manufacturing, Repair Services and Retail Award 2010;
(b) The Applicant was entitled to be conferred the rights, benefits and obligations of a permanent employee under the Award; and
(c) The Applicant had workplace rights within the meaning of Section 341(1) of the Fair Work Act 2009 (Cth).
4. On or about 8 June 2012 the Applicant advised the Respondent that he needed to take sick leave because he was in pain.
5. On 20 July 2012 the Applicant had an operation on his back.
6. The Applicant provided the Respondent with Medical Certificates for the period 9 June 2012 to 5 September 2012.
7. The Applicant took Long Service Leave from on or about 6 July 2012 to 5 September 2012.
8. On or about 21 August 2012 the Applicant provided the Respondent with a Medical Certificate stating that he was fit to return to his pre-injury duties on 6 September 2012.
9. On 6 September 2012 the Applicant participated in a meeting with Warren Connochie and Lee Koudsy, representatives of the Respondent, concerning amongst other things the terms upon which he would work on his return to work.
10. On 6 September 2012 the Applicant rejected the Respondent’s offer of casual employment and informed the Respondent that he wished to perform his normal duties.
11. On 20 September 2012 the Respondent informed the Applicant the casual employment was the only option for him to consider.
12. On 11 October 2012 the Respondent dismissed the Applicant with immediate effect.
13. On or about 17 October 2012 the Applicant received a payment related to the termination of his employment with the Respondent.
14. The Applicant commenced employment with Luxury Motor Group Pty Ltd (ACN 001 990 727) t/a Curren Accident Repair Centre on 7 January 2013.
15. In May 2013 the Applicant received the payslip recording his termination entitlements.”
The applicant was represented by Mr Rogers, of counsel. Mr Rogers read the affidavit of the applicant, sworn 20 December 2013, and a shorter affidavit of the applicant, sworn 15 April 2014. The applicant’s first affidavit annexed a number of documents including a copy of the applicant’s terms and conditions of employment with the respondent; various email exchanges between the applicant and officers of the respondent; various medical certificates; and, a copy of an application to Fair Work Australia, filed by the applicant on 31 October 2012 and the respondent’s response dated 8 November 2012.
The respondent was represented by Mr Easton, of counsel. Mr Easton read 2 affidavits of the owner of the respondent, Mr Lee Koudsy, sworn December 2012 and 8 April 2014, and the affidavit of Mr Warren Connochie, manager of the respondent, sworn 8 April 2014.
The parties also relied on an agreed chronology as follows:
| 7 May 2002 | The applicant commences employment with the respondent. |
| 8 June 2012 | The applicant advised the respondent that he needed to take sick leave because he was in pain. |
| 6 July 2012 | The applicant commences long service leave. |
| 20 July 2012 | The applicant has an operation on his back. |
| 21 August 2012 | The applicant provided the respondent with a medical certificate stating that he was fit to return to his pre-injury duties on 6 September 2012. |
| 5 September 2012 | The applicant finishes long service leave. |
| 6 September 2012 | A meeting between the applicant, Mr Connochie and Mr Koudsy. |
| 20 September 2012 | The applicant rejects the respondent’s offer of casual employment and informs the respondent that he wishes to perform his normal duties. |
| 11 October 2012 | The respondent dismisses the applicant. |
| 17 October 2012 | The respondent pays monies on termination to the applicant. |
| 7 January 2013 | The applicant commences employment with Currans Automotive P/L |
Events of 8 June 2012
Relevantly, on 8 June 2012, the applicant complained that he was suffering from a bad back and could not continue to work. The applicant deposed that he had a conversation with Warren Connochie, the manager of the respondent, who told the applicant to see Lee Koudsy, the owner of the respondent, before leaving.
While there were various versions of the conversations that took place on 8 June 2012 between the applicant and Mr Koudsy and the applicant and Mr Connochie, it is common ground that the applicant then left work that day and did not return until 6 September 2012. During that period, the applicant sent various medical certificates to the respondent to keep them updated as to his medical condition. Further, on 20 July 2012, the applicant had back surgery.
By 9 July 2012, the applicant had used all of his sick leave entitlements and successfully requested to use his accrued long service leave.
Following the surgery, the applicant emailed a medical certificate to the respondent on 21 August 2012, which stated as follows:
“To whom it may concern,
This is to certify that Mr Roukos Namroud attended this practice on 20 July 2012.
Unfit for work from: 20th July 2012
Able to return to work on: 3rd September 2012
Because of L4/L5 discectomy
Doctor Balsan Darwish”
Warren Connochie replied on 28 August 2012, as follows:
“Hi Rocky,
Your long service leave ends on Thursday 6th September 2012. We will expect to see you on Thursday 6th September at 10.00am for an interview to assess and discuss your position and physical condition. Please bring all relevant doctor’s certificates with you on the day.”
Meeting of 6 September 2012
The applicant deposed that on 6 September 2012, he attended the workplace at 8.00am ready to commence work. He then participated in a meeting with Mr Connochie and Mr Koudsy later that morning. The applicant deposed that the following conversation took place:
Koudsy: How are you?
Applicant: Hi, Lee.
Koudsy: I am going to record our conversation (and he puts his phone on the desk in front of him).
Applicant: It doesn’t worry me.
Koudsy: How do you feel?
Applicant: I feel ok. By the way I brought all my medical certificates as you requested and have two medical certificates from my surgeon and GP saying that I can return to my pre-injury duties.
Koudsy: Do they say that you are not going to be sick tomorrow?
Applicant: Lee, I came today hoping that I can start work. I feel ok.
Koudsy: You know when we get older, we start developing aches and pains especially if you are involved in physical work or activities. Look at me, you know that I used to do a lot of weightlifting and as a result I have sore elbows now. As much as I would love to keep doing that, I have to take medications and I have to slow down. The same is with you – whatever you do, your back will never be the same again and it will be constantly sore and I don’t think you able to maintain a full-time job.
Applicant: My doctor thinks that I am going to be ok. He gave me clearance to come back to work.
Koudsy: You know Leo Pinczewski, the surgeon. I saw him the other day and told him your story. Leo explained to me that a disc protrusion is a very serious condition and no one can fully recover after that. Moreover, he told me that reoccurrence of this condition is not uncommon. You tell me that you are ok and he tells me that you are not. Whom should I believe? Can you guarantee that it is not going to happen again and you will be able to keep a full-time employment?
Applicant:I think that no one can guarantee that. Can you guarantee that you are going to be here tomorrow?
Koudsy: I don’t want to get rid of you. I need panel beaters. I try to find panel beaters and I can’t get them. But you are injured and I can’t take you back on wages. You were on workers’ comp last year, you’ve been sick this year and you will be sick tomorrow. It is a disruption for my business. I can take you back as a casual. And if you are going ok, if your health improves, I might employ you back full-time.
Applicant: Lee, I was never employed as a casual and I don’t want to work on a casual basis. No one works here on a casual basis.
Koudsy: After few people being away sick over last two years, I want to introduce a new system and I want to employ people working as casuals or contractors. I’ve spoken to DJ and he might start working on contract too. I want to completely change the system. I am sick of people being off work on workers’ comp. Over last two years we had you, Robert, Bret and my brother Sam claiming workers’ comp. It costs me money and time I want people to come here to work hard and I don’t want them to be away sick.
Applicant: You are complaining about people taking time off. I can’t speak for everyone in this shop, but at the beginning of this year I had five weeks of untaken sick leave. I believe it is not bad for someone of my age. You discourage people to take sick leave when they really need it, and then they become worse as their condition is not treated properly.
Koudsy:I believe that casual employment is a good option for you. Think about it. If you are employed as a casual, you don’t have any obligations. One day you don’t feel well, you don’t have to worry about your sicky. If you don’t feel well, you don’t have to come to work.
Applicant:But I would be without pay, wouldn’t I?
Koudsy: Give it a try and see how you go. Do you have any annual leave left?
Applicant: Yes, I’ve got about five weeks of annual leave.
Koudsy:What if you take two weeks of annual leave? And meanwhile we will send you some information about casual work?
Applicant: But I don’t want to take any more time off. I came today to start work, You also say that you need people here to work and yet you are sending me away for another two weeks? Is it really what you want?
Koudsy:I think it would be better for you. Get extra two weeks to recover better and then you will get my information and then make up your mind.
Applicant:Is casual work the only option I have?
Koudsy:Yes, it is the only option I can offer you.
Mr Koudsy gave the following evidence about the conversation that took place at that meeting. That conversation was as follows:
Koudsy: How are you feeling?
Applicant:Despite what the certificates say, I’m still not 100 percent fit.
Koudsy:Are you able to come back to work full-time and resume your normal duties?
Applicant: I don’t know if I can. I can’t assure you of that at this point.
Koudsy: Maybe you should take a couple more weeks of annual leave to fully recuperate. We don’t want to lose you. If you can’t come back and work full-time then what about if we offered you a casual position when you’re ready to come back to work?
Applicant: That might be better. It sounds like a good idea. Can you put something together for me to look at?”
Koudsy: Ok then.
In the same terms, Mr Connochie deposed that the following conversation took place on that day at that time between Mr Koudsy and the applicant:
Koudsy: How are you feeling?
Applicant: Despite what the certificates say, I’m still not 100 percent fit.
Koudsy: Are you able to come back to work full-time and resume your normal duties?
Applicant: I don’t know if I can. I can’t assure you of that at this point.
Koudsy: Maybe you should take a couple more weeks of annual leave to fully recuperate. We don’t want to lose you. If you can’t come back and work full-time then what about if we offered you a casual position when you’re ready to come back to work?
Applicant: That might be better. It sounds like a good idea. Can you put something together for me to look at?”
Koudsy: Ok then.
Each of the deponents was cross-examined in great detail as to the conversation that took place on 6 September 2012.
Assessment of applicant’s evidence
I did not find the applicant to be a reliable witness. The applicant tended to provide answers that he thought would assist him. When documents were put to him that were entirely inconsistent with his answers, he would then concede that his first answer may have been incorrect. He tended to be unresponsive to questions that he thought may not assist him.
At the commencement of his cross-examination, the applicant was asked if he had ever taken leave for mental exhaustion and psychological stress. The applicant answered “Never”. When shown a medical certificate dated 23 March 2011 in the name of the applicant stating that the applicant was suffering from “mental exhaustion, psychological stress” and was unable to attend work from 23 March 2011 to 6 April 2011, the applicant responded that there had been an argument at work following which he had been sent home by Mr Koudsy on sick leave. He said that he got stressed as a result of having been sent home.
It was put to the applicant that he resigned as a result of this incident, to which the applicant replied “Never”. A copy of a cheque dated 30 March 2011 made out to the applicant in the amount of $18,450 was tendered by the respondent. That cheque appeared to have been torn up. That evidence supports Mr Koudsy’s evidence that on 23 March 2011, the applicant told him that he was resigning from his position because of the altercation. Mr Koudsy deposed that approximately two weeks later, the applicant attended his office and apologised for his behaviour and asked to stay. Mr Koudsy said that he was happy for him to do so.
The applicant was not able to remember when he obtained legal advice in relation to his termination. When asked when his present solicitor started acting for him, he answered that he did not remember and said to counsel cross-examining, “You tell me”. When it was then put to the applicant that his present solicitor lodged an application in this Court on 5 December 2012 and had been acting for a very long time before then, the applicant then responded that yes, his solicitor had been acting for him since his dismissal. The applicant then remembered who had acted for him in relation to his complaint to Fair Work Australia and that his present solicitor had commenced acting for him after the Fair Work Commissioner had issued a certificate on 21 November 2012 in respect of that complaint.
The applicant also claimed to be unable to remember more recent events that one would have thought would have been readily in his mind. For example, when asked when he started to look for another job, he answered as soon as he had found out that he was dismissed. When he was asked what that date was, the applicant answered that he could not remember because there were too many dates in his head and he thought it was “October”. I take that to be October 2012.
Yet, the applicant claimed to remember in great detail the conversation of 6 September 2012.
Although the applicant deposed that the conversation of 6 September 2012 was taped, there was no evidence provided to the Court to support that assertion, including no Notice to Produce, and neither Mr Koudsy nor Mr Connochie were cross-examined to that effect. To that end, neither was the applicant cross-examined. In the circumstances, I am not satisfied that the conversation was taped as alleged by the applicant.
Assessment of Mr Koudsy’s evidence
I found Mr Koudsy to be a generally reliable witness who endeavoured to answer questions frankly and appeared to have a genuine concern for the applicant’s welfare and his ability to carry out the work of a full- time panel beater, in light of the applicant’s prior injuries and need to be on light duties.
I find that over the years of his employment, Mr Koudsy showed significant generosity to the applicant. For example, in 2003-2004 the applicant had difficulties with his knees which were not work related but required minor surgery. The applicant agreed in cross-examination that Mr Koudsy had covered the applicant’s hospital costs and expenses for that operation and had arranged for a specialist to meet with him. In February 2008, the respondent employed the applicant’s son as an apprentice panel beater. However, the son’s employment was terminated when it was apparent that he was not capable of performing the required work and after a verbal and physical altercation with another employee. In an effort to help the applicant and his son, Mr Koudsy offered the son employment with his other repair company, which was accepted.
Mr Koudsy also deposed that for some years after 2004, the applicant complained about his ankles, shoulders, elbows and hips and began to refuse to do certain tasks as a result of his health issues. Mr Koudsy gave an example that the applicant refused to file body panels and that a file weighs no more than 500 grams and is used to repair small dents. Mr Koudsy also gave evidence that since 2008, the applicant displayed signs of anger towards Mr Koudsy and his staff.
Assessment of Mr Connochie’s evidence
Of all the witnesses, Mr Connochie impressed me the most. He gave his evidence in a frank and forthright manner and appeared to sincerely make every effort to answer each question to the best of his ability. I accept his evidence in its entirety and where it departs from that of the applicant, I prefer the evidence of Mr Connochie.
Mr Connochie deposed that the applicant displayed anger issues in the workplace and would question why he was given certain tasks and would argue with other staff members. Mr Connochie deposed that the applicant would often complain about his health, especially his ankles, shoulders, elbows and hips, and that there was a point in time where he began to refuse to do certain tasks as a result of his health concerns. Mr Connochie said the applicant was put on lighter duties as a means of dealing with the applicant’s increasing health issues.
Findings in relation to meeting of 6 September 2012
Where the applicant’s version of the conversation that took place on 6 September 2012 departs from that of Mr Koudsy and Mr Connochie, I prefer the versions provided by Mr Koudsy and Mr Connochie to that provided by the applicant.
Accordingly, I am satisfied that, at the meeting on 6 September 2012, the applicant told Mr Koudsy and Mr Connochie that, although his doctors may have said that he was fit to return to work, he did not believe that he was 100 percent fit. The applicant was not able to assure Mr Koudsy that he could resume his normal duties despite the medical evidence. I accept that the prospect of casual employment was raised by Mr Koudsy at that meeting and that the applicant expressed some interest in it and asked Mr Koudsy to send him some information about that prospect.
I accept that Mr Koudsy suggested to the applicant that he take a couple more weeks of annual leave, during which time he would receive full pay, to fully recuperate and to think about the prospect of casual employment. That conduct by Mr Koudsy is consistent with the applicant not being confident that he was 100 percent fit to return to the normal duties of a panel beater and consistent with an expressed interest in casual employment. Otherwise, it would seem curious that the applicant would agree to take a further two weeks of annual leave.
Email correspondence after 6 September 2012 up to date of termination on 11 October 2012 and relevant findings
On 17 September 2012, having not received anything from the respondent, the applicant emailed Mr Connochie in the following terms:
“Hi Warren how are you?this is the 2nd week of my annual leave like we agreed on, yet until now I received no information from you.
So if I don’t hear nothing from you by the end of this week, I will presume that I should come back to my normal duties from next Monday.
Regards Rocky” (errors in original)
The applicant’s further request for that material is consistent with Mr Koudsy and Mr Connochie’s evidence that the applicant was interested in casual employment.
Mr Koudsy and Mr Connochie accepted that they should have sent information about casual employment sooner than they did, but that it was no more than an oversight on their part.
Mr Connochie responded on 19 September 2012 as follows:
“Hi Rocky
As discussed previously, we will be glad to see you back at work on a casual basis.
This is due to the fact that you cannot guarantee to us that you can fulfill (sic) a full-time position as per your employment status before you took your leave.
Due to the constant disruption in your work pattern this year, we would like to offer you a position as a Casual Panel Beater at LSR Autobody to be paid an hourly rate of $55.00 per hour for every hour you work.
We believe this will assist you in future employment.
Regards,
Warren Connochie”
The applicant then responded to Mr Connochie’s email on 20 September 2012, as follows:
“Hi Warren
Since I have been away, I was consistently providing you and (LSR) with all medical certificates to monitor my recovery process.
The last 2 certificates 1 from my surgeon and the other from my GP clearly stated that I was fit to return to my pre injury duties.
I consider the casual employment terms you suggested to be a demotion, and have to reject them.
I would like to return to my normal duties at the previous term as soon as possible .
Regards Rocky” (errors in original)
The applicant’s response on 20 September 2012 is equivocal as to whether it amounts to a denial of the assertion in Mr Connochie’s email, dated 19 September 2012, that the applicant had said that he could not guarantee that he could fulfil a full-time position.
However, on 20 September 2012, Mr Connochie responded as follows:
“Hi Rocky,
AS you sated in the meeting 2 weeks ago you told us you could not “guarantee” full-time employment.
There for our offer of a casual employment is the only option for you to consider …
Regards,
Warren Connochie” (errors in original)
On 23 or 24 September 2012, the following text exchange took place between the applicant and Mr Koudsy (“lee”):
“Hi lee hope you are well? Just like to ask a quick question about my employment with you casual work is not for me I would like to work on wages like before if you are serious about only casual ?? It means you are dismissing me, is this what you really want? This is Rocky by the way just in case you did not know who it is. Regards.
….
Hi rocky
Spoke to Warran and casual works is the only option at the monument it is your call” (errors in original)
Plainly Mr Connochie’s email of 20 September 2012 restates the respondent’s position that at the meeting of 6 September 2012, the applicant told Mr Koudsy and Mr Connochie that he could not guarantee full-time employment. The applicant’s response in the text exchange above does not take issue with that statement. The applicant’s response was not a positive response that he would be able to keep full-time employment.
In the circumstances, based on the evidence before me, I am satisfied that the applicant’s failure to assure Mr Koudsy that he could maintain full-time employment as a panel beater in his then physical condition was the reason why the applicant was offered casual employment to accommodate those physical needs.
Termination on 11 October 2012 and relevant findings
It is an agreed fact between the parties that the applicant was dismissed on 11 October 2012 pursuant to the following email and that such conduct was adverse action:
“Hi Rocky,
Lee & I have reviewed your correspondence to this point & we have come to the conclusion in light of you declining our offer of casual employment. We have no choice but to terminate your employment with LSR Autobody.as of today 11th oct 2012
In accordance with the industry award your entitlement of five weeks’ pay will be deposited into your account.
At your earliest convenience please come and collect your tools & drop in the company uniforms.
Regards,
Warren Connochie.” (errors in original)
During the course of the cross-examination, Mr Koudsy agreed that there were two factors that operated upon his decision to terminate the applicant’s employment. They were the applicant’s failure to attend his employment, having regard to his past history of absences, and the bringing of the applicant’s unfair dismissal claim lodged on 9 October 2012 with Fair Work Australia.
Mr Connochie gave evidence that the work done by full-time panel beaters was intensive, heavy labour and involved much heavy lifting. He expressed concern about the ability of anybody with a bad back to be able to properly do such work. Mr Connochie also gave evidence that it would be possible for the applicant to do light duties when employed casually for as little or as much time as the applicant was able to manage. Mr Connochie said that the applicant could work up to 60 hours per week on light duties, if he chose to do so.
Mr Connochie said that full-time work would involve raising cars onto benches where they were worked on at a cost to the respondent of $1000 per day. If a worker was unable to manage and complete that work within a reasonable time, it was at great cost to the respondent. For that reason, a person with back problems would not remain suitable for such work.
Mr Koudsy and Mr Connochie were cross-examined to suggest that their proposal to move the applicant to casual employment was so that they could cut down his hours and pay him less. Based on the evidence of each of Mr Koudsy and Mr Connochie, I do not accept that proposition. Both Mr Koudsy and Mr Connochie said what a valuable employee the applicant was, even on lighter duties. They both said how they wished to have the applicant available to work as often or as little as he wished and that it was certainly not their intention to limit the number of hours that he worked. Rather, they wished simply to offer him the opportunity so that when he felt he was not fit to work, he was not obliged to do so. Further, the applicant was offered a higher hourly rate than he was receiving as a full-time employee. Mr Koudsy had maintained that the applicant had had many absences due to various physical problems. I accept that his attempt to persuade the applicant to accept casual work was done for the applicant’s benefit as much as his own.
Upon his termination, the applicant was paid five weeks’ wages in lieu of notice.
Effect of applicant’s unfair dismissal claim lodged with Fair Work Australia prior to his termination on 11 October 2012
It is common ground that the applicant lodged an unfair dismissal claim with Fair Work Australia 2 or 3 days prior to the termination of the applicant’s employment with the respondent on 11 October 2012.
The amendment referred to in paragraph 4 above was made following Mr Koudsy’s answer in cross-examination that his reasons for terminating the applicant included the lodging by the applicant of an unfair dismissal claim on 9 October 2012 with Fair Work Australia. The amendment essentially pleaded that to terminate the applicant for that reason was adverse action and in contravention of s.340 of the FW Act and that the applicant was entitled to exercise a workplace right by lodging his unfair dismissal claim on 9 October 2012 in relation to the termination of his employment on 11 October 2012.
Relevantly, s.340 of the FW Act is as follows:
“(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”
Pursuant to s.341 of the FW Act, a person has a workplace right if that person is able to initiate, or participate in, a process or proceeding under a workplace law or a workplace instrument; or is able to make a complaint or inquiry to a personal body having the capacity under workplace law to seek compliance with that law.
Section 394 of the FW Act is as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Plainly, the applicant’s conduct in lodging the unfair dismissal claim on 9 October 2012 was not in respect or anticipation of his termination on 11 October 2012. The claim itself expresses the termination date of 6 September 2012.
As at 9 October 2012, Fair Work Australia had no jurisdiction to consider an unfair dismissal claim arising from prospective events on 11 October 2012. Section 394 of the FW Act makes clear that an application for unfair dismissal is predicated on the dismissal having occurred. The unfair dismissal claim lodged by the applicant on 9 October 2012 was clearly expressed in terms of an alleged dismissal on 6 September 2012.
Further, as stated above, this case has proceeded on the unambiguous agreed fact that the applicant’s employment was terminated on 11 October 2012. The applicant had no claim for unfair dismissal by the respondent on 9 October 2012. Prior to 11 October 2012, the applicant was not able to exercise any workplace right arising from unfair dismissal.
In the circumstances, it was not prohibited conduct for Mr Koudsy to have regard to an invalid claim for unfair dismissal lodged by the applicant on 9 October 2012 prior to his termination on 11 October 2012.
Summary of findings on allegation of adverse action because of age
Section 351(1) of the FW Act provides that an employer must not take adverse action against an employee because of, inter alia, age.
There was no evidence led in support of the applicant’s allegation that he was dismissed because of his age. Accordingly, I find that the applicant was not dismissed because of his age.
Summary of findings on allegations of adverse action because of illness or injury
Section 352(1) of the FW Act provides that an employer must not take adverse action against an employee because, inter alia, the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth) (“the FW Regulations”).
Reg.3.01 of the Regulations states:
“(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee's absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.”
Based on the evidence before me, I accept that the applicant’s leave due to illness and injury commenced on 8 June 2012 when the applicant advised the respondent that he had back pain and left that day on sick leave. I am satisfied that the applicant returned on 6 September 2012 when all paid leave to which the applicant may be entitled ran out.
Further, I am satisfied that the further two weeks annual leave was taken by the applicant after 6 September 2012 due to the fact that he was not 100 percent fit to return to his full-time occupation with the respondent as a panel beater and was continuing to recuperate from his injuries and illnesses during that period. The applicant had no sick leave left and staying home to recuperate for a further two weeks by taking annual leave ensured that the applicant continued to be paid during that period.
I find that these periods of absence by the applicant were not for any reason other than illness or injury.
Further, based on the evidence before me, I accept that the applicant was absent due to illness for 3 days between 11 October 2011 and 7 June 2012.
In all the circumstances, I accept that the applicant’s absences due to illness and injury between 11 October 2011 and 11 October 2012 exceeded three months.
The Applicant has not shown that he was dismissed for a prescribed illness.
In the circumstances, I am not satisfied that the applicant was dismissed because of a temporary absence from work of an illness or injury of a kind prescribed by the FW Regulations.
Summary of findings on allegations of adverse action because of discrimination based on physical disability
Pursuant to s.351(1) of the FW Act, an employer must not take adverse action against a person because of physical disability. Whilst not pleaded, in written submissions, Mr Rogers submitted that the respondent had breached s.351 for that reason.
However, s.351(2) states that an employer does not discriminate against an employee for an unlawful purpose if that action is taken because of the requirements of the particular position concerned.
On the evidence before me and for the reasons given above, I am satisfied that the applicant was unable to fulfil the inherent requirements of being a full-time panel beater as at 6 September 2012 and as at 11 October 2012 when he was terminated.
In the circumstances, I am not satisfied that the applicant was unlawfully discriminated against because of any physical disability.
Reasons and findings on the issue of whether the applicant was given reasonable notice upon termination
The respondent’s proposal on 6 September 2012 and thereafter that the applicant return to work on a casual basis was intended to enable the applicant to continue to work, but at his own pace and ability without the necessity to undertake the labour intensive work of a full-time panel beater. Notwithstanding that the medical certificates provided by the applicant stated that the applicant was fit to return to his former duties, on the evidence before me, I find that those duties had already been adapted to accommodate the nature and number of the applicant’s absences due to prior injuries and illnesses. None of the medical certificates indicate that the applicant was able to perform the work of a full-time panel beater.
Accordingly, on the evidence before me, from at least 8 June 2012, and for some time prior to that date, I find that the applicant had not been able to undertake the heavy labour intensive work of a full-time panel beater.
In the circumstances, the respondent was entitled to terminate the applicant on reasonable notice where the applicant could not perform the full-time work of a panel beater and it was neither harsh, unjust nor unreasonable for the respondent to do so. Further the respondent was entitled to have regard to the applicant’s periods of absence of more than 3 months prior to his termination and the fact that the applicant lodged an invalid application with Fair Work Australia alleging unfair dismissal prior to his actual termination on 11 October 2012.
It is common ground that under the common law, the applicant was entitled to reasonable notice upon termination. The respondent gave the applicant five weeks’ notice on the basis that that was the amount provided under the Modern Award for a person in the position of the applicant who had been employed for ten years.
The applicant seeks a termination period of upwards of six months.
I also note that prior to his termination, the applicant was being paid a base hourly rate of $39.47. There is no evidence before me as to what is the applicant’s present hourly rate of pay. Counsel for the applicant provided, as an attachment to his written submissions, a hand written table that shows the alleged difference between what the applicant earned whilst employed by the respondent and what he now earns. However, even accepting that table, the two figures are substantially similar. The applicant’s gross pay with the respondent was expressed to be in the order of $2,100 per week. According to the handwritten table, for the most part the applicant appears to be earning at least that much per week. The applicant is required to, and did, mitigate his loss to a significant degree (see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435).
It is well established that an employment contract can generally be lawfully terminated at common law at any time for reason with notice (see Ridge v Baldwin [1964] AC 40).
In determining what is reasonable notice at common law, it must be borne in mind that the primary purpose of giving a period of notice is to enable the employee to obtain new employment of a similar nature (see Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at 138). I accept the respondent’s submission that in considering what is a reasonable notice period, consideration of the following factors can be relevant:
a)The high grade of the appointment.
b)The importance of the position.
c)The size of the salary.
d)The nature of the employment.
e)The length of service.
f)The employee’s age.
g)The employee’s qualifications and experience.
h)The expected period of time it would take the employee to find alternative employment.
I accept the respondent’s submission that the applicant was neither employed at a high grade, nor in a relevantly important position in the organisation. The applicant is in his late fifties. Further, as the applicant’s current employment demonstrates, his skills and experience are readily transferable.
I accept that ten years’ service is a reasonably substantial period. I note that under the Modern Award, the notice period for ten years’ service would be five weeks. I also accept that the evidence before the Court was to the effect that there is a short supply of panel beaters in the labour market and that it took the applicant only two to three weeks to find an alternative position, once he started looking.
In all the circumstances, I am satisfied that a notice period of five weeks was reasonable.
Conclusion
I find that the applicant’s employment was terminated because of the number of absences from work over the course of his employment due to illnesses and injuries and the bringing by the applicant of an unfair dismissal claim lodged on 9 October 2012. I also find that the applicant was dismissed because he was unable to carry out the work of a full-time panel beater. Accordingly, he was not terminated for an unlawful reason in breach of the FW Act.
Accordingly, the answer to each of paragraphs 1(i) and (ii) in the Agreed Statement of Issues is, No. That is, the applicant was not dismissed from his employment with the respondent in breach of his contract of employment that he was entitled to reasonable notice on termination; or in circumstances that constitute adverse action within the meaning of s.340(1) of the FW Act. In the circumstances, it is not necessary to consider the other issues further.
The proceeding before this Court should be dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 February 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Damages
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Duty of Care
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Negligence
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Causation
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Remedies
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