Piddington v Lilock Pty Ltd t/a Glenhuntly Private Nursing Home
[1996] IRCA 475
•05 September 1996
DECISION NO:475/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - refusal to supply medical certificate - TEMPORARY ABSENCE - PHYSICAL DISABILITY.
Industrial Relations Act 1988 (Cwlth) ss170DB, 170DC, 170DF, 170EA, 170EE.
Johns v Gunns Ltd (1995) 60 IR 258;
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371;
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66;
Associated Dominions Assurance Society Ltd v Andrew (1949) 49 S.R. (NSW) 351
PIDDINGTON v LILOCK PTY LTD (T/A GLENHUNTLY PRIVATE NURSING HOME)
VI96/1130
Before: MURPHY JR
Place: MELBOURNE
Dates of hearing: 4 & 5 SEPTEMBER 1996
Date of judgment: 5 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI96/1130
BETWEEN:
MARY PIDDINGTON
Applicant
AND
LILOCK PTY LTD (T/A GLENHUNTLY PRIVATE NURSING HOME)
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 5 SEPTEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
That the respondent pay to the applicant pursuant to s170EE(5) the sum of $1,000.00.
That the respondent pay to the applicant the sum of $1,102.72.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI96/1130
BETWEEN:
MARY PIDDINGTON
Applicant
AND
LILOCK PTY LTD (T/A GLENHUNTLY PRIVATE NURSING HOME)
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 5 SEPTEMBER 1996
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
In this proceeding the applicant seeks a remedy pursuant to s170EA of the Industrial Relations Act 1988 (“the Act”) following the termination of her employment on 24 November 1995. The applicant is a registered nurse of some years experience. The respondent conducts a 30 bed private nursing home. The applicant commenced employment with the respondent in August 1994 and worked two shifts each week-end.
The relevant matters giving rise to this proceeding occurred over the period 23 September 1995 to 24 November 1995. On 23 September 1995 the applicant worked one shift and at the end of that shift she sought to change the shift arrangements previously established and work a double shift. Ms Johnson, the Director of Nursing, said that arrangements were already in place and refused the applicant permission. The following day the applicant the applicant was due to work but she called in sick. It was noted in the relevant book.
The respondent had a practice that when employees were unable to work they were to call in. The applicant did not attend for work at the respondent from 23 September until 11 November. The following week-end, 30 September, the applicant contacted the respondent to indicate that she was sick. She did the same thing on 1 October. The same thing happened the following week-end on each day, and the following week-end, 14-15 October.
Ms Johnson gave evidence that after the applicant called in sick she made a number of attempts to contact the applicant. The applicant had never provided the respondent with her home address but only with a Post Office box. The respondent, however, had her telephone number and Ms Johnson gave evidence of several attempts to contact the applicant by leaving messages on the answering machine. The applicant did not contest that evidence.
The applicant also reported in sick for the week-end of 21 and 22 October. On 23 October Ms Johnson sent a post-fax (Exhibit R2) to her Post Office box. It read:
“As several attempts to contact you have failed could you please contact me by 9.30 am on Wednesday, 25 October, with reference to your unauthorised absences.”
The respondent received no response to this post-fax and Ms Johnson sent a further one (Exhibit R3) on 26 October which read:
“As we have not seen or heard from you, as (sic) you have not supplied evidence of your unauthorised absence. You have not replied to my letter fax sent on Monday, 23 October. If you do not reply by Friday, 27 October at 12 midday( the respondent) will deem you have abandoned your employment.”
On 27 October Ms Johnson retrieved from her answering machine a message from the applicant that she had received the previous two faxes and wanted to inform her, Ms Johnson, that she had notified the hospital on each week-end she was off sick and:
“I can deem what I like but she has certificates and she won’t be in again this week-end.”
On 31 October Ms Johnson sent a further post-fax (Exhibit R4) to the applicant stating:
“I received your message on my answering machine at home: As you have not produced your medical certificates to me you are seriously jeopardising your on-going employment for your authorised absences.
Please contact me at work by 9.30 am Thurs. with ref. to your unauthorised absences.”
Ms Johnson gave evidence that after that post-fax she had a conversation with the applicant and again requested her to provide her with medical certificates in relation to her absences.
On 11 November the applicant attended work at about 10.00 pm. Ms Johnson was there and she gave evidence that was expecting the applicant. There was then a conversation between the two of them. Ms Johnson recorded notes of the conversation. Her account of the conversation was not substantially challenged in cross-examination. On contested matters of the evidence I prefer Ms Johnson's evidence over that of the applicant in any event. Ms Johnson noted that the applicant was “very defensive and confrontational.” The applicant had accused Ms Johnson of harassing telephone calls and failing to pay her sick leave. Ms Johnson denied both of these matters. The applicant said she had not produced certificates because Ms Johnson had refused to pay her sick leave. The parties came to an agreement that the applicant would not finish that shift and would to go home. The applicant sought to have the reasons for this put in writing. They were reduced to writing in a letter that was handed to the applicant.
That letter (Exhibit R5) records that the respondent does not:
“allow unauthorised absences and I have asked you to provide certificates for the times you have been off as a result of sickness. These certificates have not been forthcoming as expected on your return to duty.”
And it then details the absences. The letter requests the applicant to leave the premises until Ms Johnson can look into the matter. It states she will be paid for the shifts. It states that Ms Johnson will contact the applicant on Monday “and (I) once again request your sick certificates please.”
On 13 November there was a further telephone conversation between Ms Johnson and the applicant, wherein Ms Johnson sought the medical certificates. This conversation took place after Ms Johnson had obtained advice from an employer organisation. Ms Johnson's note of the conversation (Exhibit R7) records that she had asked the applicant whether she was working elsewhere. She had also asked the applicant the same thing in the conversation on 11 November. Again the certificates were requested.
On 14 November Ms Johnson sent a letter to the applicant (Exhibit R8) to her Post Office address by certified mail stating:
“Your failure/refusal to produce confirmation of evidence (ie. Doctors certificates as claimed were held by you) regarding your period of leave from 24th September - November 5th 1995, after several requests from Glenhuntly Nursing Home, has resulted in the following action:
We now wish to notify you that if satisfactory evidence is not produced by closure of business on Friday 17th November, your services will be terminated......”
On 24 November the respondent terminated the applicant's employment in a letter (Exhibit R9) sent by post-fax:
“It is with regret that we wish to inform you that due to your consistent refusal to produce documented evidence satisfactory to the (respondent) for the times you have been unable to attend due to illness. We have only seen you for one shift on 11 November. Your refusal to reply to our certified mail sent on 14 November. (The respondent) deems you have abandoned your employment. Your services have been terminated forthwith.”
On 6 December the respondent received a letter from the applicant enclosing some medical certificates and requesting that her employment be reinstated. On 12 December the respondent replied (Exhibit R15) that it did not intend to reinstate the applicant's employment.
In evidence were four medical certificates (Exhibits R11 - R14 inclusive) covering a number of the dates of the applicant’s absence from work.
The makers of the certificates were not called. Also in evidence were admissions by the applicant that on three days that she had reported in sick to the respondent, she had worked at another nursing home. Two of those days, namely 7 and 8 October, were days covered by a certificate (Exhibit R12) signed by Dr Power that she was unfit for work.
What was the reason for the termination of employment?
The reason given by Ms Johnson in her evidence for the termination of employment here was the failure of the applicant to respond to a request that she supply medical certificates for her absences. The documentary evidence supports this as the true reason for the dismissal. The fax-post letter of 23 October refers to unauthorised absences. The fax-post letters sent on 26 October and 31 October both refer to evidence or certificates.
Ms Johnson said that before the letter of 23 October she had tried to contact the applicant. The letter of 23 October refers to “several attempts”.
On 27 October the applicant in a telephoned message, in effect, refused to supply the certificates requested. A letter of 31 October sought the certificates. Ms Johnson gave evidence of a telephone conversation with the applicant on 5 November where she offered to collect the certificates at the applicant's home. The applicant had refused to allow Ms Johnson to attend at her home to collect the certificates. Ms Johnson's evidence was that "I know I had requested that she bring in her certificates". The applicant attended work on 11 November and failed to bring the certificates.
In a contemporaneous file note (Exhibit R6) on 11 November, Ms Johnson described the applicant as "very defensive and confrontational". The applicant had given as a reason for her failure to bring in the certificates that the respondent "refused to pay her sick pay". Ms Johnson had denied this was the situation at the time. Ms Johnson gave the applicant a letter (Exhibit R5) before she left on 11 November. The letter confirms the previous request for the certificates and says "once again (I) request your sick certificates please".
On 13 November Ms Johnson, by telephone, again requested the certificates. The applicant, on her evidence, refused to allow Ms Johnson to attend to collect the certificates. Ms Johnson asked the applicant whether she was working elsewhere. According to Ms Johnson's file notes, the applicant had refused to give a conclusive answer. On 14 November Ms Johnson sent a certified mail letter to the applicant seeking the certificates by 17 November. No reply was received and on 24 November the applicant was terminated.
In the face of this repeated failure to respond to the request for the certificates I am satisfied that this was the reason for the termination of employment. In Johns v Gunns Ltd (1995) 60 IR 258 at 268 Northrop J said that in determining whether an employer had excluded a proscribed reason “all the facts and circumstances of the case have to be considered.”
Here, Ms Johnson was faced with an initial incident on 23 September where, following a refusal to agree to a shift change, the following day the applicant had called in sick. For the next 7 weeks the applicant had not attended work. Over that period there had been at least 3 written requests for the certificates and on Ms Johnson's evidence a number of telephone requests. Further, Ms Johnson had asked the applicant on two occasions whether she was working elsewhere.
The respondent, as at 24 November, thus had no material independent of the applicant's assertions that she was in fact ill on the days she claimed she was. In these circumstances, and taking into account the evidence of Ms Johnson that the reason for the dismissal was the failure to proffer the certificates, I am satisfied that the applicant's temporary absence from work for illness or injury was not a reason for the termination (s170DF(1)(a)).
I am further satisfied that the respondent has discharged its onus of proof that "physical disability" was not a reason under s170DF(1)(f) of the Act. On this issue the respondent had no independent evidence from the applicant that there was anything at all wrong with her. On the contrary, it had only evasion and obfuscation from the applicant when it requested that material. I am satisfied that, even if it is accepted that at the time the applicant had a physical disability within the terms of the Act, the respondent has discharged its onus of proof that physical disability was not a reason pursuant to s170DF(1)(f) of the Act.
Valid Reason.
The respondent carries the onus of proof that it had a valid reason to terminate the applicant's employment. In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373, Northrop J said:
“(T)he adjective “valid” should be given the meaning of sound, defensible or well-founded.......
Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions “must be applied in a practical commonsense way to ensure that the employer and employee are each treated fairly”......”
Here, the reason for the termination was, as I have found, the refusal of the applicant to provide substantiation of her previous absences.
In determining whether such a refusal could constitute a valid reason for termination the first question is whether the employer had the right to request the information in the circumstances that it did. I am satisfied that the request for the information, namely, the medical certificates, was an incident of the implied duty of fidelity and good faith in every contract of employment.
In Blyth Chemicals Ltd v Bushnell, (1933) 49 CLR 66 at 81-82 Dixon and McTiernan JJ said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground for dismissal...... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”
In Associated Dominions Assurance Society Ltd v Andrew (1949) 49 S.R. (NSW) 351 at 357, Herron J said that a duty lies upon an employee in general terms to give information to his or her employer such as:
“is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee's own actions performed as an employee -provided that these relate to the master's business, the employee is bound, generally speaking, to make such disclosure..... Questions asked relating to the employee's activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal.”
Here, applying these authorities, the respondent was, I am satisfied, entitled to request the certificates sought. They were to corroborate the applicant's assertions that she was unfit for work at a time when she had no entitlement to sick leave. The requests were made over a considerable period and were reasonable in the circumstances. I do not accept the applicant's evidence that her condition was such that she was unable to respond to these requests. I draw an inference against her for her failure to produce contemporaneous medical certificates covering all the periods of her absence from work. Her unreasonable refusal to substantiate the periods was a factor that weighed on the employer's mind when it reached the decision to dismiss her.
Much was made of the failure of the respondent to wait for the applicant to actually receive the letter of 14 November (Exhibit R8) before dismissing her. I reject this. Given the repeated refusals of the applicant, prior to 24 November, to comply with the requests earlier made the respondent did not have to wait. The applicant, given her refusal to provide a residential address to the respondent, had a duty to provide a means to allow the respondent to communicate with her. She had to co-operate by clearing her own mail box or contacting the respondent.
Given the history of the respondent's requests, I am satisfied that the applicant refused a reasonable request for the certificates. This can be characterised as misconduct within the Bushnell (above) definition. It can also be characterised as an operational requirement of an employer that employees answer reasonable requests for information. The respondent reached its conclusion that it had a valid reason to dismiss the applicant in a reasoned way. It has discharged its onus of proof under s170EDA(1).
S170DC - Opportunity to respond
It has been repeatedly stated by the court that the requirements of s170DC are substantive but not necessarily formal. The employee has to have an opportunity to respond to the relevant allegations that are putting his or her job in jeopardy. Here, the opportunity was more than afforded. The applicant, for reasons that I find unsatisfactory, did not comply with the requests of the respondent to provide the certificates. She had been told in writing from 26 October that she would be deemed to have abandoned her employment unless she provided the certificates. Four weeks later the certificates had still not been supplied.
By 24 November, a period of 2 months exactly had elapsed from the first day that the applicant asserted that she was sick and was unable to attend work. She knew from 11 November at least, in the conversation when she was at work, that she was required to provide those certificates. She failed to do so. She was stood down on that day. The employer did not have to do any more to comply with s170DC. It was entitled to take the position that she was refusing to clear her mail box. In the circumstances the employer has complied with s170DC(a). If I am wrong about this then the employer is entitled to rely on s170DC(b) given the applicant's failure to make even a modicum of effort to contact her employer to address the matters that she knew were of concern to her employer. The employer has not breached s170DC of the Act.
It was common ground that the applicant had not been paid her entitlement under s170DB(1) for payment in lieu of notice, outstanding sick leave, annual leave, and two days pay for the weekend of 11 and 12 November. The relevant amounts are respectively $1,000, $251.70, $338.38 and $560.64. The respondent does not resist an order for those amounts. The order of the Court will be:
That the respondent pay to the applicant pursuant to s170EE(5) the sum of $1000.
That the respondent pay to the applicant the sum of $1,102.72.
I certify that this and the preceding ten (10)pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 5 September 1996
APPEARANCES
Counsel appearing for the applicant: MR I FEHRING Solicitors for the applicant: HOUNSLOW & ASSOCIATES Counsel appearing for the respondent: MS H BONNEY Solicitors for the respondent: PHILLIPS FOX Dates of hearing: 4 & 5 SEPTEMBER 1996 Date of judgment: 5 SEPTEMBER 1996
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