Nicole Daley v Coca Cola Amatil T/A Coca Cola Amatil (Australia) Pty Ltd

[2016] FWC 655

[2016] FWC 655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Nicole Daley
v
Coca Cola Amatil T/A Coca Cola Amatil (Australia) Pty Ltd
(C2014/7333)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 2 FEBRUARY 2016

Alleged dispute regarding sick leave – dispute concerns whether employee entitled to Extended Sick Leave in accordance with relevant provision of the applicable enterprise agreement – employee found not to satisfy the requirements set out in the relevant provision and therefore not entitled to Extended Sick Leave.

[1] On 10 December 2014 United Voice (UV) lodged an application on behalf of Ms Nicole Daley (the Applicant) regarding a dispute concerning the decision by Coca Cola Amatil T/A Coca Cola Amatil (Australia) Pty Ltd (CCA – the Respondent) to reject a request by Ms Daley for access to Extended Sick Leave (ESL) in accordance with clause 36.7 of the Moorabbin Manufacturing Operations Enterprise Agreement 2011-2015 1 (the Agreement).

[2] The application was made under s.739 of the Fair Work Act 2009 (the Act) and in accordance with clause 10 - Disputes Resolution of the Agreement.

[3] The application was the subject of a number of conferences convened by the Fair Work Commission (the Commission) and further discussions between the parties, all of which failed to resolve the dispute. As such Directions were issued by the Commission on 3 June 2015 for the filing of submissions and evidentiary material which the parties sought to rely upon in support of their respective positions. With the agreement of the parties, the Directions indicated that the matter would be determined on the papers.

[4] For the reasons set out below, I determine that Ms Daley did not satisfy all of the requirements set out in subclause 36.7.1 of the Agreement and was therefore not entitled to ESL in accordance with clause 36.7 of the Agreement in respect of her absence from work for the period 6 to 28 November 2014.

Background

[5] In November 2014 Ms Daley was absent from work for approximately three weeks as a result of being bitten by a venomous spider. Ms Daley subsequently applied for ESL under clause 36.7 of the Agreement. Ms Daley’s application was rejected by CCA on the basis that having considered the available information it did not consider it appropriate to do so in this case, with that decision communicated to Ms Daley in writing on 28 November 2014. Attempts to resolve the dispute at the workplace level in accordance with the Agreement’s dispute resolution provision were unsuccessful.

[6] As noted above, UV lodged an application with the Commission on 10 December 2014.

Clause 36.7 of the Agreement

[7] Clause 36.7 of the Agreement provides as follows.

“36.7 Extended Sick Leave

36.7.1 Where an Employee has exhausted all personal leave entitlements accrued to them, the Company will grant extended sick leave to an Employee where the Company is satisfied, based on the procedure set out in this clause that the Employee is suffering from a prolonged and serious medical condition, which is expected to last for an extended period of time.

36.7.2 A decision on whether to grant extended sick leave under this clause is subject to the provision of appropriate supporting medical evidence to the satisfaction of the Company.

36.7.3 Extended sick leave is to be granted by the Company for a period of up to six (6) months, which can relate to one (1) or more serious medical conditions. Leave beyond six (6) months, either paid or unpaid will be at the discretion of the Company after all other leave entitlements have been exhausted.

36.7.4 Where the Company authorises a period of paid extended sick leave, an Employee will be paid their All Purpose Rate of Pay during the period.

36.7.5 An Employee may be requested to undergo a medical assessment by an independent medical practitioner or specialist for the purposes of assessing the likelihood of the Employee returning to permanent employment. An assessment under this clause may be requested by the Company either during, or at the end, of a period of extended sick leave and the cost will be met by the Company. Any report will be made available to the Company and the Employee.

36.7.6 Where an Employee is granted extended sick leave under this clause, their continuity of service will not be broken. However a period of extended sick leave will not otherwise count as service for the purposes of accruing entitlements for personal leave.

36.7.7 For the purposes of long service leave, a period of extended sick leave will not otherwise count as service for the purposes of accruing long service leave entitlements where an Employee has been absent on account of illness or injury for more than a total of forty-eight (48) weeks in any year.”

Ms Daley’s case

[8] Ms Daley characterised the dispute between the parties as whether her medical condition was “prolonged” and “expected to last for an extended period of time” as required by subclause 36.7.1 of the Agreement. Ms Daley submitted that the Commission should interpret clause 36.7 of the Agreement in accordance with the plain meaning of the words “prolonged” and “extended” which appear in subclause 36.7.1 of the Agreement. In this regard, Ms Daley relied on the definitions of these terms as set out in the Oxford English Dictionary (Online) submitting that the Dictionary defines the terms as follows:

“prolonged” – to “drag (out), draw out, the lengthening time, caused to be last or last longer; and
“extended” – to “stretch or spread out, continued for a long period of time; protracted: had an extended vacation.”

[9] Building on these definitions, Ms Daley submitted that the timeline within which her medical condition occurred was prolonged as she only expected to be absent from work for a short period of time but was required by medical practitioners to be absent from work and present herself for medical treatment with the use of an intravenous medication on an ongoing basis. Ms Daley further submitted that her absence was for an extended period when compared to the 96 hours or 12 days of personal leave she accrues each year under the Agreement.

[10] Ms Daley went on to submit that CCA’s decision not to grant her ESL was not in keeping with the intent of or the application of the Agreement, adding that she considered that she had been treated unfairly and unreasonably and that CCA had contravened the terms of the Agreement.

[11] Ms Daley further contended that subclause 36.7.1 of the Agreement was a statement of broad intent and did not limit qualifying for ESL by way of time. Ms Daley concluded by submitting that she had a serious reaction to a venomous spider bite which caused her to be absent from work for 17 days which is a considerably longer period of time compared to suffering from a head cold, chest infection or influenza, which on average only requires a person to be absent for around five days. Ms Daley therefore submitted that she was entitled to ESL under the Agreement.

CCA’s case

[12] CCA submitted that Ms Daley was not at work for 15 working days over the period 6 to 28 November 2014 and that Ms Daley had exhausted all her personal leave accruals.

[13] CCA included in its submissions a chronology of events regarding Ms Daley’s absence. Key aspects of that chronology are set out below:

• on 5 November 2014 Ms Daley attended work and during the course of the day advised her Team Leader that she had been bitten by a whitetail spider the previous day and that she would not have come to work but for the fact that she was out of sick leave;



• on 6 November 2014 Ms Daley’s Manager told her to go to the doctor and not “play around” with what might have been a whitetail spider bite;



• also on 6 November 2014 Ms Daley attended Casey Superclinic where she was certified unfit for work for the period 6 to 10 November 2014;



• on 7 November 2014 Ms Daley advised her Manager that her doctor had told her that she would need a minimum of two weeks off and that she would need to visit him on a daily basis to have her bandages changed;



• on 8 November 2014 Ms Daley attended the Casey Superclinic and was certified unfit for work from 8 to 15 November 2014;



• on 9 November 2015 Ms Daley attended the Casey Hospital and was certified unfit for work from 9 to 14 November 2014, with the medical certificate stating that Ms Daley had an abscess in her right foot with extensive skin infection and that she needed to keep her leg elevated;



• on 10 November 2015 Ms Daley rang her Manager and advised that she had been admitted to Hospital where she was placed on an intravenous drip to reduce the infection. During the conversation Ms Daley again raised the issue of payment under the Agreement’s ESL provision, with her Manager advising her that her condition was not considered to be prolonged and serious;



• on 21 November 2014 Ms Daley sent her Team Leader a text message advising that she wanted to make an official application for ESL, that her doctor had given her another week off work and that she would return to work on 2 December 2014;



• on 24 November 2014 Ms Daley attended the workplace to provide her medical certificates to CCA and to formally request ESL for her absence; and



• Ms Daley returned to work on 2 December 2014.

[14] CCA further submitted that Ms Daley attended Casey Hospital on 2 April 2015 when she was provided with two discharge summaries. In its submissions, CCA highlighted that the discharge summary of:

• 8 November 2014 stated that Ms Daley attended the hospital at 1:24 pm that day with a problem on her right foot and that she was prescribed two intravenous doses of antibiotics that day. The discharge summary described Ms Daley as being “systemically well”; and



• 9 November 2014 stated among other things that Ms Daley “looks well, limping slightly.”

[15] With particular regard to clause 36.7 of the Agreement, CCA submitted that there were three tests in subclause 36.7.1 and that Ms Daley did not meet any of those tests. More specifically, CCA submitted that:

• based on the medical evidence, in particular the discharge summary of 9 November 2014, Ms Daley’s medical condition was not long prolonged;



• the medical evidence supports CCA’s view that whilst the medical condition was initially serious it quickly became less so;



• relying on the discharge summaries from Casey Hospital and the medical certificate issued by the Casey Superclinic on 24 November 2014, it is clear that Ms Daley was never expected to be absent for an extended period of time by her medical advisors; and



• it is the medical evidence supporting the claim which is the determining factor and not dictionary definitions, adding that the medical certificates and discharge summaries supporting Ms Daley’s absence from work were for short periods of time, generally 4 to 7 days, as opposed to an extended period.

[16] In its submissions, CCA also stated that there had been four occasions when ESL had been granted by it to employees. The occasions involved an employee suffering from terminal cancer, an employee who had suffered a broken neck, another employee who was unfit for work due to non-work weight related issues and finally an employee with ongoing non-work-related psychological issues. The periods of absence granted ranged from some six months to more than two years, with in one regrettable case the employee having passed away.

[17] In conclusion, CCA submitted that it had acted within the terms of the Agreement by rejecting Ms Daley’s claim for ESL and that no breach of the Agreement had occurred.

Consideration of the issues

[18] It was not disputed that the Commission had the jurisdiction to determine the dispute under clause 10.4 of the Agreement. By way of background, clause 10.4 of the Agreement provides that:

“10.4 FWA may deal with the dispute in two (2) stages:

10.4.1 FWA will first attempt to resolve the dispute as it considers appropriate, including mediation, conciliation, expressing an opinion or making a recommendation.

10.4.2 if FWA is unable to resolve the dispute at the first stage, FWA may then:

a) Stage one: Arbitrate the dispute; and

b) Stage two: Make a determination that is binding on the parties.

A decision that FWA makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.”

[19] The principles relating to the interpretation of enterprise agreements are set out in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd 2 (Golden Cockerel). Below is the passage which sets out the key principles in this regard:

“[41] From the foregoing, the following principles may be distilled:

1. The AI [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a the text of the agreement viewed as a whole;
(b) the disputed provision's place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[20] A close examination of subclause 36.7.1 indicates that there are a number of tests that an employee has to meet. First, the employee must have exhausted all of their personal leave entitlements. In this case it is not disputed that Ms Daley met this requirement. Beyond this, an employee needs to be suffering from a prolonged and serious medical condition. Further, that medical condition must be expected to last for an extended period. It is the issue of whether or not Ms Daley meets these latter tests that is disputed in this case. I note also that all of these tests must be met for ESL to be granted, i.e. a serious medical condition which may only last for a few days would not satisfy these tests.

[21] The terms “prolonged”, “serious” and “extended” are not defined in the Agreement. Further, I consider them to be subjective terms which are open to differing interpretations. As is demonstrated in this case, this results in ambiguity as to the meaning of the terms. Accordingly, drawing on principle 5 in Golden Cockerel, evidence of the surrounding circumstance will be admissible to aide the interpretation of the Agreement.

[22] The material before the Commission indicates that the ESL has previously been approved by CCA on four occasions, with the nature of the medical condition in at least three of those cases being of a nature that most people would consider both serious and likely to continue for some time, i.e. cancer, a broken neck and psychological issues. The nature of Ms Daley’s medical condition is clearly of a different nature to the abovementioned medical conditions. This is best evidenced by the medical certificates issued to Ms Daley, which were for periods ranging from five to thirteen calendar days. While together the medical certificates cover a period totalling twenty three calendar days, when considered individually they do not suggest that Ms Daley’s absence was at any stage considered by her treating doctors as likely to be extended.

[23] Further, nowhere in the medical evidence is there a suggestion that Ms Daley’s condition is serious. For instance, the material before the Commission indicates that as at 8 and 9 November 2014, which is only three and four days after Ms Daley suffered the spider bite, Ms Daley was described as “systemically well” and “looks well, limping slightly”. In addition, the discharge summary of 9 November 2014 states under the heading ED [sic Emergency Department] Management/Initial Treatment “… home on oral antibiotics and GP follow up as needed.” Ms Daley’s discharge from the emergency department of Casey Hospital on 8 November 2014 together with the abovementioned comment on the discharge summary of 9 November 2014 would be unlikely to have occurred had her condition been considered serious.

[24] In summary, the above analysis does not support a finding that Ms Daley was suffering from a serious medical condition which was expected to last for an extended period of time. As a result, Ms Daley’s medical condition does not satisfy at least two of the threshold requirements set out in subclause 36.7.1 of the Agreement.

Conclusion

[25] For all the above reasons, I determine that Ms Daley did not satisfy all of the requirements set out in subclause 36.7.1 of the Agreement and was therefore not entitled to ESL in accordance with clause 36.7 of the Agreement in respect of her absence from work for the period 6 to 28 November 2014.

 1   AE891120

 2   [2014] FWCFB 7447

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