Politis v ACI Australian Glass Manufacturers Company
[1996] IRCA 52
•22 Feb 1996
DECISION NO: 52/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - claim of UNLAWFUL TERMINATION of employment - valid reason - whether termination harsh, unjust or unreasonable
INDUSTRIAL RELATIONS ACT 1988, ss.170EA, 170DE, 17DB
No. SA95/1534
POLITIS -V- ACI - AUSTRALIAN GLASS MANUFACTURERS COMPANY
JUDICIAL REGISTRAR : L FARRELL
PLACE : ADELAIDE
DATE : 22 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA 95/1534
B E T W E E N:
CON POLITIS
Applicant
- and -
ACI - AUSTRALIAN GLASS
MANUFACTURERS COMPANY
Respondent
MINUTES OF ORDER
BEFORE:JUDICIAL REGISTRAR FARRELL
PLACE : ADELAIDE
DATE : 22 FEBRUARY 1996
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $597.00 pursuant to Section 170EE(5)
of the Industrial Relations Act.
All other aspects of the claim are dismissed.
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA95/1534
B E T W E E N:
CON POLITIS
Applicant
- and -
ACI - AUSTRALIAN GLASS
MANUFACTURERS COMPANY
Respondent
BEFORE : JUDICIAL REGISTRAR FARRELL
PLACE :ADELAIDE
DATE :22 FEBRUARY 1996
REASONS FOR JUDGMENT
This is an application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.
The applicant was employed as a leading hand glass maker by the Respondent from 1981 until his employment was terminated on 21 September 1995. In March 1992 the applicant was assaulted by a fellow employee, Mr Field. His nose was broken and his shoulder was injured. Subsequently he developed a psychiatric condition arising out of that assault. He underwent a series of surgical procedures. The Respondent took no action against Mr Field. However in June 1992 he was prosecuted and pleaded guilty to the assault of the applicant. Mr Field has continued in the Respondent’s employ.
The applicant has not worked at all since 30 November 1993. He has been in receipt of weekly payments of Workers Compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA). That Act has many objectives, however the rehabilitation and compensation of injured workers is its main focus. The Act at Section 28 provides for the appointment of workers' rehabilitation advisers who assist in devising, coordinating and monitoring programs and expending monies of the Work Cover Corporation as well as consulting with employers with a view to expediting the return to work of disabled workers.
In practice the responsibilities pursuant to Section 28 of the Act are carried out by Rehabilitation Consultants engaged on a contract basis by the Work Cover Corporation. A number of such consultants were engaged to deal with the Applicant between 1992 and 1995. There was no successful return to work by the Applicant. In August 1995 the Applicant’s current Rehabilitation Consultant, Mr Puz, organised a meeting between himself, Ms Coombe, the Personnel Officer and the Applicant during which a document entitled “Return to Work Plan” was prepared. The document was the third of such plans and it was dated 11 August 1995. The Applicant’s Counsel sought to rely on the Return to Work Plan in pursuing this claim.
The Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 provided for the amendment of the Workers Rehabilitation and Compensation Act. The amendment required the Corporation to prepare a Rehabilitation and Return to Work Plan in certain circumstances. It required the Corporation to consult with the worker and his employer, review medical records or consult with treating medical experts and the Plan
could impose obligations on the workers and on the employer. (Section 28A).
In argument I was told that the Plan put in evidence before me had not been approved by Work Cover. I have no evidence to rely on in that regard. The original document was not tendered in evidence. The document that was tendered in evidence was the quadruplicate - employer copy, which does not reveal whether the plan was approved. Attached to that document is an undated note from Mr Puz stating that he will contact Ms Coombe when the plan is approved. The main purpose of the plan appears to be, firstly to authorise the expending of monies in pursuit of the Plan and secondly to provide for suspension or reduction of the Applicant’s weekly payments of compensation should he fail or refuse to undertake the program. The Plan required the Applicant to attend meetings and appointments as arranged by the Rehabilitation Consultant. There was no other obligation placed on the Applicant. The Respondent was required to do no more than attend meetings. In my view the plan, which was not a document of the Respondent nor did it require the Respondent to do any more than attend meetings, cannot be said to have held out any real possibility to the Applicant that he would return to work for the Respondent.
I think it is unfortunate that the Return to Work Plan process may have given the Applicant unrealistic expectations about the possibility of returning to work at the Respondent’s workplace. In my view the existence of the Return to Work Plan in this matter does not assist the Applicant’s case.
On 20 September 1995 Ms Coombe received copies of two medical reports from Professor Goldney dated 23 February 1994 and Dr. Lashchuk dated 17 January 1994. Dr Lashchuk was the applicant’s psychiatrist and Professor Goldney is a leading Adelaide psychiatrist engaged by Workcover to assess the Applicant and provide a report.
Although those reports were about 19 months old when Ms Coombe received them they make it clear that Mr Politis ought not return to work for the Respondent. Professor Goldney expressed the view at page 6 and onwards of his report as follows “I think that it would only be possible for him to be able to return to work if Mr Field were to be dismissed ........ I suspect that even if Mr Field were to be dismissed now, that would make Mr Politis even more distressed ...... If he could be given reassurances that he did not have to return to that work environment it is possible that over a period of several months he could regain sufficient amelioration of his symptoms to be able to contemplate alternative work elsewhere.”
No other medical evidence was tendered before me, other than medical certificates prepared by the general practitioner who continues to certify that the Applicant is unfit for work.
Following the receipt of the reports and discussion with Mr Puz, who she believed had spoken to the Applicant’s treating medical practitioners, Ms Coombe drafted a letter of termination of employment to the Applicant.
Mr Brown, Personnel Manager of the Respondent undertook a review of the matter and on 21 September 1995 the letter was forwarded to the Applicant. The letter gave the Applicant four weeks notice of the termination of his employment. It was conceded by the Respondent that the Applicant was entitled to one additional weeks notice pursuant to Section 170DB(2).
The parties agreed in this matter that I ought not consider any obligations the Respondent had pursuant to Section 170DC as neither the Applicant’s conduct nor performance were the reasons for the termination of his employment. Whilst I accept this is true for this application in many similar sorts of claims the employer’s obligations pursuant to Section 170DC may be relevant.
In the particular circumstances of this matter I accept that the Respondent had a valid reason for the termination of the Applicant’s employment pursuant to Section 170DE (1).
Further I am satisfied that the termination of the Applicant’s employment was not harsh, unjust or unreasonable.
The Applicant is entitled to damages for the contravention of Section 170DB (2). In my view it is irrelevant in assessing the damages that he was in receipt of weekly payments of compensation for that time. On my calculation the Applicant is entitled to the sum of $597.
I certify that this and the preceding two pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 11 JANUARY 1996
FOR THE APPLICANT : Mr Humphries
FOR THE RESPONDENT : Mr Manuel
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