Patricia Andrews v The Uniting Church in Australia Frontier Services trading as "Old Timers" Nursing Home
[1995] IRCA 268
•5 May 1995
CATCHWORDS
INDUSTRIAL LAW - HARSH UNJUST OR UNREASONABLE TERMINATION NOTICE - REINSTATEMENT Impractical - Opportunity to Respond - Immigration Status - Work Injury - Extension of Time to Lodge Application - Stay of Proceedings - Interest Payment Interim - Unfit for Work
Industrial Relations Act 1988 ss 170DB, 170DC, 170DE, 170DF, 170EE, 170ED
PATRICIA ANDREWS -v- THE UNITING CHURCH IN AUSTRALIA FRONTIER SERVICES trading as " OLD TIMERS" NURSING HOME
No. DI 198 of 1994
COURT: MCILWAINE JR
PLACE: ALICE SPRINGS
DATE: 3, 4, 5 MAY 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. DI 198 of 1994
BETWEEN:
Patricia ANDREWS
Applicant
AND:
THE UNITING CHURCH IN
AUSTRALIA FRONTIER SERVICES
trading as "OLD TIMERS" NURSING HOME
Respondent
BEFORE: McIlwaine JR
PLACE: Alice Springs
DATE: 3, 4, 5 May 1995
REASONS FOR JUDGMENT
This is a claim of unlawful termination of employment made by Patricia Andrews. The remedy sought originally in her application was for compensation only and the applicant did not seek reinstatement or any other damages in this matter. On the second day of the hearing, I pointed out to her that there was a prospect that I could find, on the basis of a recent full court decision that reinstatement was practicable and therefore there would be no award of compensation if reinstatement was not claimed.
Having had that explained to her, the applicant then sought leave to amend her application to include a claim for reinstatement. I allowed that amendment of the application, reserving the rights of Mr Munro who appeared for the respondent, to make further submissions if he was prejudiced in any way on that issue.
At the beginning of the proceedings, I had both parties confirm for me that there had been a conciliation process undertaken and I have a certificate which appears to be signed by Commissioner Hoffman dated 3 February 1995 that,
"In accordance with subsection 170ED(2) of the Industrial Relations Act 1988, the Commission hereby certifies that it has been unable to settle this matter by conciliation."
I therefore find that the matter is properly before me.
The applicant in these proceedings, Patricia May Andrews was born on 4 September 1960 in Dublin, and remains a citizen of the Republic of Ireland. Miss Andrews was trained as a nurse's aide although it appeared to be basically on the job experience. On or about 3 January 1988 the applicant arrived in Sydney and then travelled to Adelaide. The applicant came to Alice Springs about three years ago. In the early stage of her employment Miss Andrews was employed at the Alice Pacific Hotel and subsequently obtained employment at the "Hettie Perkins" Nursing Home.
Miss Andrews continued her employment with "Hettie Perkins" for some 16 months until 18 November 1993 when the applicant was detained by the Department of Immigration and Ethnic Affairs as an illegal immigrant. On 19 November 1993 Miss Andrews was transferred to Darwin and stayed for some period in that city under the supervision of the Department.
Eventually the applicant was allowed to return but with a restriction on her movement to remain within 50 kilometres of Alice Springs. There were requirements for her to report, however at some stage those restrictions were removed or no longer insisted upon by the department.
Miss Andrews sought re-employment at the "Hettie Perkins" Nursing Home , however, the manager or owner of the Home, Aboriginal Hostels Limited, who were reported as being based in Canberra, did not want to continue her employment. At that stage Ms Sue Brentnall the, then, Acting Director of Nursing at "Hettie Perkins" sought to assist her by contacting Mrs Davis to obtain work for her. Consequently, on 17 or 18 February, an interview took place with Mrs Davis, the Executive Director of the "Frontier Services" of the respondent. Both the applicant and Mrs Davis in their evidence, unusually for this type of case, give a similar version of the interview.
In fact Mrs Davis took a very active role in trying to obtain the support of the Department of Immigration to enable the applicant to be employed at the "Old Timers" Nursing Home. This leads me to the question as to what were the exact terms of the employment of Miss Andrews. Both the applicant and the witnesses for the respondent describe the position as casual. I have had the benefit of examining exhibit "B" ("Old Timers - Alice Springs" staff conditions of appointment ) in the respondent's case, signed by Miss Andrews on 24 February 1994, and also exhibit "I" which is an extract from the Private Hospitals Convalescent and Benevolent Homes (Northern Territory) Award 1989, which contains a description of casual employees for the purpose of that award.
None of the respondent's witnesses can recall the exact terms of engagement of Miss Andrews, and the evidence on both sides is deficient in their recollection as to the exact contract of employment that may have been concluded at the time. It appears also that the company was in the habit of getting two documents signed: being exhibit "B" and exhibit "H", (Uniting Church Frontier Services: "Old Timers" Nursing Home Employee Particulars Form), however, those documents do not conclude the issue. The nursing home, I am told, now sends a letter of appointment which incorporates the conditions of employment. A wise precaution for the future!
In any event, I have seen a series of time and wage sheets and also rosters for the company together with a very interesting book which was kept by the applicant which is exhibit 6, "Yearly Time Book" in these proceedings. The book sets out in detail the hours worked by Miss Andrews and there is enough material in all of these documents to satisfy me and I find accordingly that the applicant was employed by the respondent. Miss Andrews may well have been employed as a casual, but the applicant was certainly employed between 24 February 1994 and as at 24 August 1994 was still in employment with the company. The applicant has had a period of employment of at least six months and therefore does not come within the exemption provided by the regulations made under Industrial Relations Act 1988. I am therefore satisfied that the applicant was an employee that is covered by the provisions of the Act.
The applicant then started work at the nursing home at 7 a.m. on the first day and undertook an orientation session. As I have mentioned, her book, exhibit 6, in lots of ways confirms her shifts as a contemporaneous record. Most of her evidence as to the significant events that occurred in this matter are recorded in that book and to some extent I have relied on those notes. There is no suggestion made in evidence to me that the notes made by her were completed with these proceedings in contemplation. I think it is probably more from her training as a nurse to make appropriate historical notes of patient care that the applicant was so careful in relation to her recording of events.
The duties at the hospital were varied and included washing, bathing, showering, dressing and feeding elderly patients. It was necessary in the course of performing those duties to lift and assist in the lifting of patients in and out of wheelchairs, commodes, baths and beds. Miss Andrews worked usually between 30 and 40 hours per week. That is substantiated by the evidence of the respondent. Miss Andrews is regarded by her peers and supervisor as having a good rapport with the patients especially the tribal aboriginals.
Then there were a series of periods where her right to work at the hospital had to be reviewed because of her immigration position. I do not think it is necessary for me to go through them in any significant way as that will delay everybody, but I am satisfied that at no stage up to and including 1 September 1994, and I find accordingly, was the applicant prevented from working with the hospital by her immigration status. I will return to the issue of her ability to work in terms of her position under the Immigration Laws as I need to focus on the events towards the end of July and then on 1 September 1994 in more detail.
In about mid June 1994, the applicant commenced to have problems with pain in the left side of her neck, upper left back, left shoulder and left arm and left hand. Miss Andrews believed that the symptoms were caused by her work duties, in particular, lifting of patients. however, the applicant continued to work. When the applicant consulted her doctor on 7 July 1994 Miss Andrews very unwisely, in my view, determined not to tell the doctor that her injuries were work related. It is relevant to note that at that time her immigration status was still under review. It was a very unfortunate decision on her part in terms of what happened in other proceedings. But that is not a matter for me to determine today.
Needless to say the witnesses of the respondent, in a very generous way have indicated that they have made their own inquiries and determined that there were complaints made by Miss Andrews to fellow employees prior to the day that the nursing home actually became aware of her going on a work related injury, which was 2 August 1994. So, I do not accept any suggestion that the employer as distinct perhaps from the workers compensation insurer, has done anything to penalise the applicant in relation to the injury suffered at her work.
The result of the work injury is that the evidence before me indicates that the applicant is unable to return to work until at least 17 May 1995, and then there is to be a further review of her capacity to work. This complicates the matter before me as primarily these cases are to determine whether a person ought to be reinstated to their former employment. There is some evidence before me as to what happened since 2 September 1994 in relation to the proceedings in the workers compensations area. In this regards exhibit "G" being a facsimile from Heath Insurance is a useful reference.
The affidavit sworn on 3 January 1995, Exhibit number 16, in particular paragraphs 20 to 24, refers in a fairly extensive way, to details of the applicant's indebtedness and her expenditure during the period when Miss Andrews was without income which I have considered and taken account of in making my decision.
The other matter that I have considered is the evidence that the applicant suffered a series of misfortunes. These included the refusal of her workers compensation claim, her social security application and her request for assistance from the Commonwealth Rehabilitation Service being initially rejected.
I turn now to focus on the events which occurred at the end of July. The key document in that respect was made available by the respondent and is a copy of a facsimile letter received from the Department of Immigration and Ethnic Affairs, which is now exhibit "A". Attached to that document is a copy of a letter which is addressed to Miss Andrews. There is some suggestion that the letter was never received by Miss Andrews.
That facsimile sent on 28 July 1994 by the Department of Immigration and Ethnic Affairs included an undated letter to Miss Andrews which extended permission to work beyond 17 august 1994 and permitted her to continue working "until 1 September 1994, or until a decision is made on your application, whichever occurs first. As there will be significant changes to the Migrant Act as of 1 September 1994 permission to engage in that employment can only be given until that date". What is of more importance is the covering facsimile (exhibit "A") to the "DON Old Timers Nursing Home Attention Sharon Davis", in which it is made clear by the person who signed the letter, as follows:
"Attached is a copy of a letter advising Miss Andrews that she has permission to work until 1 September 1994. We will need to review the situation at that date."
Accordingly on that date, there was to be a review by the department. There was not to be a review on 31 August or any earlier date than that. There was to be a review on 1 September 1994 and it is regrettable that the Nursing Home administration did not pay sufficient regard to that facsimile and possibly seek further advice from the Department of Immigration about their ability to continue her employment before sending the letter dated 30 August 1994. In making that statement I acknowledge that I accept the evidence that it was made quite clear to Miss Andrews it was her responsibility to obtain permission from the Department and then give it to her employer. I also find it somewhat disturbing that the application for a bridging visa was not completed until 1 September 1994. A facsimile was apparently sent on 1 September 1994 at 0837 from an office in Alice Springs to the Department of Immigration and Ethnic Affairs at Darwin applying for a further bridging visa.
Now, I accept it may be the applicant did not receive this application for further bridging visa earlier, but again there was to my mind an obligation on her at least to communicate what was happening to the employer. That was not done in the sense that the application that is before me in evidence is signed on 1 September 1994. So, in a significant way, it seems to me that the applicant may have contributed to some extent to her own misfortune in this matter. However, I note that the undated copy letter in exhibit "A" refers to "your application" which implies that an application may have already been made to the Department.
Nevertheless, at no time, because the documentary evidence is clear was the applicant actually without a visa which lawfully allowed her to work at "Old Timers" Nursing Home. The applicant did have authority to work up to and including 1 September 1994. The applicant has a bridging visa class C which entitles her to continue to work.
I raise the date and time of the actual sending of this application for visa because I think it is probably relevant to the evidence of the telephone conversation between Miss Carrol Lawrence and Mrs Joanne Miller. The actual content of which is in dispute. What is not contested is that it probably occurred on 2 September 1994.
It seems to me that the uncertainty about the immigration situation may well have been one of the reasons why the telephone contact was made by Carrol Lawrence and not by the applicant as this would avoid Miss Andrews having to explain what her current immigration status was on 2 September 1994. On the evidence of the applicant the advice from the Department confirming her permission to work after 1 September 1994 did not arrive until later.
Nevertheless, the two versions of their conversation as reported to me by Joanne Miller and Carrol Lawrence are in conflict. It is very difficult when this occurs to determine what was actually said. I do not find it necessary and I am not going to make a finding as to who I accept in relation to that conversation.
In any event it was significant enough, whatever was said, to have Carrol Lawrence ring Mr Ray Platt of the Department of Immigration to try and ascertain what the actual situation was in relation to the immigration status of the applicant. I do not think I need to make any other finding other than there was something said in the conversation that led Miss Lawrence to be concerned enough to contact the Immigration Department. I think I can leave the telephone conversation at that because on the evidence before me the applicant was entitled to work at all times at the "Old Timers" Nursing Home without the risk of the Immigration Department forcing her to leave the position.
The evidence of Mrs Davis was quite forthright, in her admitting to me the difficulties which faced her. Mrs Davis was in a double bind in the sense that the applicant was absent with a work-related injury and there were difficulties about her immigration status. I think, quite properly, Mrs Davis was concerned by the need to protect the hospital from the disruption that would have occurred had the Immigration Department come in on 1 September 1994 and removed Miss Andrews from the nursing home. I do not consider, given the previous history of Mrs Davis dealing directly with the Department that such action would have occurred as it was quite clear on the document (exhibit "A") that I have referred to that the matter was to be reviewed on 1 September 1994.
A more appropriate way of dealing with the issue would have been to give some notice to the applicant or to suggest that Miss Andrews would not be rostered until her immigration status was reviewed and advice of the result given to the respondent The form of the letter that was used, exhibit 2, is quite clear:
"30 August 1994
Dear Patricia,
As you are aware your visa conditions expired as of 1 September 1994 and we are not longer able to employ you."
That, in a factual sense, is not the case. Certainly it expired on 1 September 1994 but there was to be a review on that date. It was also accompanied by a Work Statement dated 31 August 1994, "Patricia Andrews was employed by us as a Hospital assistant HG 62/01 from 25/2/94 to 31/8/94" Unfortunately when the letter is read with the certificate issued by the administrative officer the effect of both documents is to terminate the applicants employment on 31 August 1994. I therefore find that there was a written termination of the employment of the applicant.
I accept the evidence that is before me that the applicant was quite distressed about the whole series of events. In fact there is medical evidence before me to the effect that on 28 March 1994, I appreciate this is some time after the termination, the applicant presented at the Department of Health and Community Services to be treated for an overdose of amphetamines, see the discharge summary (exhibit "1"). In that document it is recorded that this incident was in response to "numerous psychosocial stressors" and that the applicant had been taking a prescribed drug for "endogenous depression". I need go into it no further as the exhibit speaks for itself.
There is a supporting medical report of Dr Edwards, dated 3 May 1994 and advice in, a letter from Philipa Naivasha, a counsellor, Community Mental Health Services which also confirms that the applicant had been receiving counselling for stress since about the beginning of February 1995.
I understand how easily a case of this nature becomes out of control. In this instance the applicant was fighting for survival on two fronts in the sense of the refusal to pay workers compensation or for her to receive a social security payment. The advice which the applicant received from social security was:
"Your claim for Sickness Allowance has been carefully considered but you are not eligible.
The reason for this decision is you are not residentially qualified to receive Sickness Allowance under Social Security Act 666 (G). Persons holding a bridging visa only are not eligible for Social Security payments.
I have made this decision as a delegate of the Secretary under the Social Security Act."
Moreover another organisation that the applicant approached for help, the Commonwealth Rehabilitation Service, initially, refused her access on the basis of her immigration status. The fact that the applicant believed and justly felt that she had been harshly dealt with in relation to all of these matters would have placed significant stress on her. However, I do not necessarily accept that the incident is all related to this particular court case because as at 28 March 1995, it appears to me from the evidence submitted by the applicant that already some workers compensation payments had been commenced. So it may well be that there were some other issues which contributed to the unfortunate incident on 28 March 1995.
Having decided that the company has terminated the employment of the applicant I turn now to whether that termination is in accordance with the provisions of the Act. It seems to me that on the question of the immigration status as at 1 September 1994, what the company ought to have done was comply with the provisions of section 170DB of the Act. If the respondent wanted to bring the employment to an end on 1 September 1994, it would have been necessary to give to the applicant the period of notice, being one week required by the legislation.
Section 170DC of the Act requires that, an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. I appreciate the respondent submits that the conversation with Mrs Miles in which the applicant was advised that it was her responsibility to communicate with the Immigration Department was sufficient. I accept that this conversation occurred on 12 July 1994 (see exhibit "C"). However, this should be contrasted with the previous approach made directly to the Department of Immigration and Ethnic Affairs by Mrs Davis and the facsimile to the Nursing Home dated 29 July 1994. However, it was complicated by her being off work, and by the refusal of the insurance company, not the employer, to pay the compensation. In all of those circumstances it seems to me that the respondent was under an obligation to give the employee the opportunity to defend herself in terms of whether or not her immigration status would be terminated on 1 September 1994.
Had, for example, a letter of that nature been sent, it could also have been sent to the Department of Immigration. The view of the Department could have also been easily obtained in a telephone call by Mrs Davis or Mrs Miles.
Another section that may be relevant in this case is section 170DF which prevents an employer from terminating the employment of a person because of temporary absence from work because of illness or injury. I am satisfied that the applicant was on a temporary absence from work on 31 August 1994 and remains at this stage on that basis as the applicant has a medical certificate only until 17 May 1995.
Nevertheless, I note the assurances of the representatives that it was never their intention to dismiss her because of conduct, performance or work injury. Their concern was basically with the immigration situation which to some extent the applicant has contributed to her own difficulties.
I then turn also to section 170DE (1) of the Act which requires that an employer must not terminate an employee's employment unless there is a valid reason or valid reasons connected with the employee's capacity or conduct or based on the operation requirements of the undertaking establishment of the service. Had the situation been that the Department of Immigration had not renewed the visa then in my view the company would have had a valid reason for terminating the employment. Provided the appropriate notice had been given it would have had a valid reason.
It would then have been necessary to look at section 170DE(2) and determine whether, having regard to the employee's capacity and conduct, the termination was harsh, unjust or unreasonable and then there may not be a valid reason for the termination. For that purpose I find that Miss Andrews was a good employee. The applicant may not have completely liked her job but that probably applies to all us. The evidence of the witnesses for the respondent is to the effect that they regarded her highly and that persons of her experience are difficult to employ in this field. They stated they were prepared to take her back on good terms and I accept unreservedly their assurances in that regard.
Which leaves me now to turn to the question of what do I do with the situation. My initial reaction was that I ought to reinstate the applicant to a position which would enable her to undergo rehabilitation and to establish herself back into the work force at the earliest possible time. However, the difficulty is that Dr M. Chris Brown (exhibit 14, an extract from the report is sufficient) made it clear that it is not possible to put her back in her former position.
"Considering the length of time for which her symptoms have persisted it is unlikely that Ms Andrews will be fit to return to such heavy manual work as her previous normal duties in the near future. It would therefore be wise for her to attempt some alternative source of income, for example it may be possible to arrange a trial at work of some type through the Commonwealth Rehabilitation Service."
The difficulty in this case is that the applicant at an early date sought help from that service and they turned her away. They will now be assisting her but they should have assisted her, in my view, a lot earlier than now. having that sort of medical evidence it is quite clear that I cannot re-appoint the applicant to the position which was held by her immediately before the termination.
I might have taken the view of ordering her appointment to another position on terms and conditions no less favourable than her previous employment if evidence of that nature had been put to me in a proper fashion but that has not occurred. I am left in some difficulty about the matter.
In summary the evidence I have on a proposal to reappoint the applicant to a light duties position comes from Fiona Mears and Heather Jensen. I prefer the evidence of Ms Mears, Ms Jensen, to my mind, was very ambivalent about the whole situation and less than helpful in assisting the court in her evidence. Ms Jensen, as the case manager would need to be the source of much support and encouragement of the applicant for reinstatement to succeed. I am not sure that such assistance would be available to the applicant. Nevertheless I am faced with the decision as to whether it is impractical to order her reinstatement, albeit on some conditions. Firstly, it is not practical in this sense, that I do not have any proper evidence as to the way in which I could put Miss Andrews back in a situation when I really do not know what is going to happen on 17 May 1995. Secondly, it would require the goodwill of the three parties to such an arrangement. I am convinced that the representatives of the respondent are quite genuine in their efforts to seek to re-employ the applicant.
As I have indicated, there are three parts to that equation. That is, the applicant, the respondent, and the Commonwealth Rehabilitation Service. I am not convinced that two of those parties really would have the necessary enthusiasm to make that equation work. Unless there was overwhelming support, I do not think such an order would work. I find it is impractical to reinstate the applicant even under section 170EE(1)(a)(ii) of the Act.
I am therefore now obliged to work out whether I should make an order for compensation. If I am to make that order, I have to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment. But the amount of compensation must not exceed a certain amount set out in section 170EE(3)(a) and (b).
I am concerned about some issues. One, the relatively short period of employment of the applicant. Two, her own evidence that she was unhappy at the nursing home and might have chosen to leave in the short term. I should consider therefore whether to award only a small amount making an assessment as to how long I thought that the applicant might stay in her position in the future. However, in this case, the matter is more complex in that there is an outstanding workers compensation claim being processed. Contrary to the submission that was made to me by the respondent, I note that there was an application made, which is referred to in exhibit "G", for the payment to commence from 2 August 1994. But for whatever reason, I do not wish to enter into that, payments of workers compensation did not commence until 6 January 1995.
It appears to me that this whole problem might also not have happened if the action which was taken not to pay the workers compensation insurance had not occurred. Again there is no finding on my part that the decision was in any way contributed to or can be attributed to the actions of the nursing home or the employees who gave evidence in this hearing. I am obliged to have regard to the remuneration the employee would have received or would have been likely to have received if the employer had not terminated the employment.
So, having regard to that, I am also in the final analysis allowed to award what the Court finds appropriate. I propose that an aware of $14,659.86 should be made to the applicant. That is based on the payment to the applicant from 2 August 1994 to 6 January 1995 at a weekly rate of $626.49. My assessment is that there are some 23 weeks in that period and an additional two days. So the figures are for the 23 weeks at $626.49 being $14,409.27 and for two days $250.59, that is $14,659.86.
From that amount is to be deducted tax at the appropriate rate based on the fact that the applicant is still not an Australian citizen. The deducted tax is to be paid to the Australian Taxation Office for the credit of the applicant.
I think I have already mentioned that I do not have to attribute blame, but in these proceedings there was a terrible breakdown in communications between the applicant and the respondent. It was not assisted by the decision of the insurance company not to make the workers compensation payments. In fact, it worsened the situation, I think, probably in lots of ways it contributed to the incident which occurred on 28 March 1995. However, in terms of the future, I am advised that there are proceedings under way under Work Health Act and the applicant has certain rights in that regard as does the respondent.
I make findings and do this with the benefit of hindsight as follows:
The respondent contravened:
(a) Section 170DB in that it should have given one week's notice.
(b) Section 170DC - employee to have the opportunity to respond.
With respect to Section 170DF I find that there is no evidence before me that the respondent intended this termination to relate to the dispute that occurred over the workers compensation entitlement albeit, the decision not to pay caused enormous stress and probably led to the breakdown of the relationship of trust that had been in place between the employer and the employee.
I find that the applicant had a visa to work at the Nursing Home as at 1 September 1994 and thereafter and there was not a valid reason for her termination. I also indicate that had that not been the case, then because of the capacity and conduct of the employee I would have found that the dismissal was harsh, unjust or unreasonable.
I therefore declare the termination of the employment of the applicant contravenes division 3 of Part VIA of the Industrial relations Act 1988. I find that it is impractical that the applicant be reinstated in either the former position or any other position with the employer. I award compensation on the basis as I have indicated in the amount of $14,659.86.
I will make a formal order on my return to Sydney. In the meantime on the oral application of the respondent I grant a conditional stay, pending the review of my decision. I note that the respondent is to pay interest on the amount of compensation pending completion of the review.
I note the undertaking of the respondent given through its counsel that it will not do anything to disturb the existing pattern of payment of workers compensation amounts.
I certify that this and the preceding eighteen (18) pages are an edited copy of the reasons for judgment of Judicial Registrar McIlwaine delivered in Alice Springs on 5 May 1995 and revised from transcript
Associate: Caroline Sternberg
Date: 22 June 1995
Findings
I find that:
The Respondent has contravened Section 170DB Industrial Relations Act 1988.
The Respondent has contravened Section 170DC Industrial Relations Act 1988.
On the evidence adduced by the applicant at the hearing I am unable to find that the Respondent has contravened Section 170DF Industrial Relations Act 1988. Although I am satisfied that the decision which was made not to pay the applicant her Workers Compensation entitlements from the 2nd August 1994 was a significant contributing factor to the breakdown of the employment relationship.
The Applicant had an entitlement to continue working at the "Old Timers" Nursing Home as at the 1st September 1994 and thereafter according to her Immigration Status as given in her evidence.
The Respondent did not have a valid reason for terminating the employment of the applicant and has contravened Section 170DE(1) Industrial Relations Act 1988.
The termination of the applicant by the respondent was harsh unjust or unreasonable pursuant to Section 170DE(2) Industrial Relations Act 1988.
It is impracticable pursuant to Section 170EE(1)(a)(i) to reinstate the Applicant to the position held by her immediately before her termination on the basis of the Medical Evidence of her physical unfitness for her former position and the certification of her Medical Practitioner that the Applicant is unfit for any work until 17th May 1995.
It is impracticable pursuant to Section 170EE(1)(a)(ii) to reinstate the Applicant to another position on terms and conditions no less favourably than the position held by her immediately before her termination on the basis of the certification of her Medical Practitioner that the Applicant is unfit for any work until 17th May 1995 and the lack of a comprehensive written plan or programme by the Respondent for the rehabilitation of the Applicant in an alternative light duties positions.
Declaration
I declare the Respondent to be in contravention of Division 3 of Part VIA Industrial Relations Act 1988.
ORDERS
I order that:
The time in which the applicant is to lodge her application to the court is extended to 17 December 1994.
I order the Respondent to pay an amount of $14,659.86 to the Applicant within 14 days of 5th May 1995.
The Respondent is authorised to deduct tax from that amount for the credit of the Applicant with the Australian Taxation Office. The tax to be deducted as if the amount were paid weekly based on a gross wage of $626.49 per week and at the rate applicable for tax payers with resident only status.
Stay
On applicant of the Respondent I grant a stay of my orders no. 2 and 3 above conditioned as follows:
The respondent will pay the amount of $14,659.86 into the Litigant fund of the Court within 14 days of today (5 May 1995) or within 2 days of receiving written notice of my orders. If necessary the amount may, subject to the concurrence of the Federal Court or its Registry in Darwin be paid into the Litigant fund of that court in trust pending the result of the review of my decision.
The Respondent is to pay to the applicant interest at the rate of 10% on the amount of $14,659.86 on a regular monthly basis with the first instalment to commence on 5th June 1995 and there after to be paid monthly until the review is determined.
The Respondent is to file an application for review of my decision within 21 days of 5th May 1995.
The Respondent is restrained from taking any action to stop or reduce the existing payments of workers compensation to the Applicant.
The Respondent is to use its best endeavours with its insurer to ensure the level of payments to the applicant for workers compensation is not reduced or stopped pending the resolution of these proceedings by the review.
Pending the appointment of a Judge to conduct a review I grant leave for either party on 24 hours notice to me in Chambers in Sydney for a further telephone direction hearing on any matters arising out of this stay or the orders I have made.
I certify that this and the preceeding three (3) pages are a copy of the findings, declaration and orders made in Sydney on 19 May 1995 by Judicial Registrar McIlwaine together with an extract of the stay which was granted by the Judicial Registrar. Paragraphs 6 to 9 inclusive of the stay have not been reproduced as they primarily relate to issues requiring attention by the Principal Registrar and Registrars of the Northern Territory and New South Wales.
Associate: Caroline Sternberg
Date: 22 June 1995
Appearances:
Applicant: Patricia Andrews
Advocate for Respondent: Mr B Munro
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