Razumic v Brite Industries

Case [2008] FCA 985

FEDERAL COURT OF AUSTRALIA

Razumic v Brite Industries [2008] FCA 985

SANDRA RAZUMIC v BRITE INDUSTRIES

VID 595 of 2006
VID 823 of 2007

RYAN J
30 JUNE 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 595 of 2006

BETWEEN:

SANDRA RAZUMIC
Applicant

AND:

BRITE INDUSTRIES
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

30 JUNE 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.Should the respondent seek costs in the light of paragraph 1 of this order, it should file and serve by 14 July 2008 written submissions in support of that application.

3.The applicant file and serve by 28 July 2008 any written submissions in answer to the written submissions referred to in paragraph 2 of this Order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 823 of 2007

BETWEEN:

SANDRA RAZUMIC
Applicant

AND:

BRITE INDUSTRIES
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

30 JUNE 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.Should the respondent seek costs in the light of paragraph 1 of this order, it should file and serve by 14 July 2008 written submissions in support of that application.

3.The applicant file and serve by 28 July 2008 any written submissions in answer to the written submissions referred to in paragraph 2 of this Order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 595 of 2006
VID 823 of 2007

BETWEEN:

SANDRA RAZUMIC
Applicant

AND:

BRITE INDUSTRIES
Respondent

JUDGE:

RYAN J

DATE:

30 JUNE 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 31 May 2006 the applicant filed a Form 5 application, pursuant to O 4 r 1 of the Rules of this Court, in proceedings numbered VID 595 of 2006. On 6 September 2007 she filed a Form 5 application in this Court pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (“the HREOC Act”) for compensation for alleged contraventions of ss 5, 6, 15 and 32 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”), in proceedings numbered VID 823 of 2007. On 10 October 2007 orders were made by consent that proceedings VID 823 of 2007 be consolidated with proceedings VID 595 of 2006.

    Background

  2. The applicant was employed by the respondent as a Sheltered Workshop Worker from 20 November 1985 until 14 March 2006.  The respondent provides to persons with disabilities a supported employment service, funded by the Commonwealth Department of Family and Community Services and Indigenous Affairs.  The applicant’s employment was terminated on 14 March 2006 for alleged misconduct.  At the time of her termination, the applicant had been working three days a week from 8.30am to 3.30pm in the respondent’s Brite Pak Division, sorting and packing goods, bar-coding, and sorting curtain products.  She…

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AGLC
Razumic v Brite Industries [2008] FCA 985
Case
[2008] FCA 985
Decision Date

CaseChat Overview and Summary

The case of Razumic v Brite Industries involved the applicant, Ms Razumic, who sought relief for her dismissal from Brite Industries. The proceedings were consolidated, with one application filed under the Workplace Relations Act 1996 (Cth) and the other under the Human Rights and Equal Opportunity Act 1986 (Cth). The applicant alleged that her dismissal was harsh, unjust, and unreasonable, and that it contravened certain sections of the Disability Discrimination Act 1992 (Cth). The court was required to determine whether Ms Razumic's dismissal was unlawful and whether she was entitled to compensation under the relevant legislation.

The court examined the evidence provided by Ms Razumic and her mother, including statements from expert witnesses, to assess the circumstances surrounding her dismissal. The court also considered the respondent's argument that the applicant's claims were barred under section 170HC of the Workplace Relations Act 1996 (Cth). The court found that Ms Razumic's dismissal was not unlawful, and that the concerns about her continued employment related to occupational and personal health and safety were valid. The court concluded that reinstatement would be rare in such circumstances and dismissed the applicant's claims.

The court ordered that the application be dismissed and provided a timeline for the respondent to file and serve written submissions if seeking costs, with the applicant having an opportunity to respond. This decision highlights the importance of considering health and safety concerns in employment cases and the limited circumstances in which reinstatement may be ordered.

Orders

Orders of the court

1. The application be dismissed.

2. Should the respondent seek costs in the light of paragraph 1 of this order, it should file and serve by 14 July 2008 written submissions in support of that application.

3. The applicant file and serve by 28 July 2008 any written submissions in answer to the written submissions referred to in paragraph 2 of this Order.

Background

Background to the litigation

On 31 May 2006 the applicant filed a Form 5 application, pursuant to O 4 r 1 of the Rules of this Court, in proceedings numbered VID 595 of 2006. On 6 September 2007 she filed a Form 5 application in this Court pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1986 (“the HREOC Act”) for compensation for alleged contraventions of ss 5, 6, 15 and 32 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”), in proceedings numbered VID 823 of 2007. On 10 October 2007 orders were made by consent that proceedings VID 823 of 2007 be consolidated with proceedings VID 595 of 2006.Background The applicant was employed by the respondent as a Sheltered Workshop Worker from 20 November 1985 until 14 March 2006. The respondent provides to persons with disabilities a supported employment service, funded by the Commonwealth Department of Family and Community Services and Indigenous Affairs. The applicant’s employment was terminated on 14 March 2006 for alleged misconduct. At the time of her termination, the applicant had been working three days a week from 8.30am to 3.30pm in the respondent’s Brite Pak Division, sorting and packing goods, bar-coding, and sorting curtain products. She also performed administrative duties, including handing out payslips and clock cards to other employees.The claim under the Workplace Relations Act 1996 (Cth) In the Form 5 application, filed on 31 May 2006, the applicant’s claim is recited as;‘Unlawful termination was harsh, unjust and unreasonable under subsection 170CFA(3) of the Workplace Relations Act 1996 (Cth) (“the Act”).’ It is also said in the same application;‘The application is made under section 170CP of the Act in relation to alleged contravention of section 170CK for which the applicant seeks the following relief:1. Reinstatement2. Compensation.’ The Form 5 application was filed with a Form 5A claim of unlawful termination of employment said to be made pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) (“the Act”). Attached to the applicant’s Form 5A claim is a Certificate from the Australian Industrial Relations Commission (“the Commission”) dated 16 May 2006 related to an application for relief in respect of termination of employment, filed in the Commission pursuant to s 650(2) of the Act, on the ground that the termination of her employment by the respondent was harsh, unjust or unreasonable. On 28 April 2006 a conciliation was held between the parties at the Commission, and, on 12 May 2006, the applicant advised the Commission that she had been unable to reach agreement with the respondent. Pursuant to s 650(92)(a) of the Act, Commissioner Mansfield issued a Certificate dated 16 May 2006 that;‘all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful in respect of the following ground or grounds:The termination was harsh, unjust or unreasonableSection 170CK of the Workplace Relations Act 1996Section 170CK of the Workplace Relations Act 1996’In the Certificate, Commissioner Mansfield stated;‘An in-principle “commercial” settlement was developed during the conciliation. It included:· A payment of $780 which represents 26 weeks’ remuneration.· Funding for a work education course at TAFE.· A letter of regret for the hurt suffered.Ms Razumic has declined the offer and wishes to pursue re-instatement.In my opinion the offer was not unreasonable in the circumstances.’

Evidence

Evidence Before The Court

In addition, by par 23 of its defence the respondent pleads;‘Further and in the alternative:(i)the Applicant’s Statement of Claim seeks a remedy in respect of facts and circumstances which are substantially the same as in the Federal Court proceeding against the Respondent alleging unlawful termination of employment (Federal Court No. VID595 of 2006) (“the Unlawful Termination Claim”);(ii)the Applicant in effect seeks a remedy in this proceeding in respect of the termination of her employment; and (iii)by reason of section 170HC of the Workplace Relations Act 1996 (Cth), as enacted at all material times (alternatively, by section 674 of the Workplace Relations Act 1996 (Cth) as currently enacted), the Applicant’s claim is barred.’The Applicant’s evidence The two proceedings were consolidated and listed for hearing on 18 March 2008. Evidence on behalf of the applicant was received in the form of written witness statements by the applicant and her mother, Mrs Rosa Razumic, together with statements by two expert witnesses, Dr Chris Towie and Ms Janette Wilson. Mrs Razumic detailed her daughter’s disabilities and recounted that she had been employed by the respondent for about twenty years before her services were terminated in about March 2006. Mrs Razumic also attested that, despite difficulties from time to time to which she was vulnerable, her daughter had been very happy as her work gave her life an interest and a focus. As well, Mrs Razumic purported, presumably on the basis of hearsay, to give evidence about the incident involving Lisa Ferrara. Apparently, Mrs Razumic accompanied her daughter to a meeting at the respondent’s premises on about 15 March 2006 when it became clear that the applicant’s employment was to be terminated. In the light of her observations of what happened at that meeting, Mrs Razumic stated:‘I do not believe that Brite Industries gave any proper consideration or time to my daughter’s version of what had happened and they were determined simply to sack her, without consideration for her years of service, her good work at Brite Industries, the difficulty she would have in finding other employment and the devastating effect on her of no longer having a job. At the meeting the management people talked among themselves and I heard them whispering. They refused to give my daughter another chance.’ In her own witness statements the applicant recounted the history of her employment with Brite Services from November 1985 when she was sixteen until her dismissal in March 2006. Until about five years before then, she had worked full-time but had been reduced to three days a week because her supervisor, Mr John Wood, thought she was unsteady on her feet. The applicant acknowledged that, as a result of a stroke when she was two years old, she suffers from epilepsy, impaired ability to remember and process information and a loss of mental agility. Over the years of her employment by the respondent, she has variously been engaged in sorting hooks of different shapes, packing body lotions into blister packs, cleaning and canteen work. Her most recent internally assessed competency-based remuneration was $1.56 an hour.

Decision

Reasons for decision

RYAN J
Even if contrary to the conclusions already reached, I had been persuaded that the applicant had established a claim to relief under the Act, I would not have exercised the Court’s discretion to order her reinstatement. The evidence to which I have already referred, cogently suggests that conscientious professional supervisors and assistants familiar with the applicant’s disabilities and their effect on the workplace have formed the judgment that her continued employment is contra-indicated by serious concerns going to far-reaching matters of occupational and personal health and safety. In the face of suggestions of that kind, it would be rare, if ever, that the Court would exercise the discretion by substituting its own judgment that those concerns are outweighed by some personal benefit which an applicant might derive from reinstatement.Conclusion For the reasons which I have endeavoured to explain, each of the respective applications in proceedings numbered VID 595 of 2006 and VID 823 of 2007 must be dismissed. Should the respondent seek costs in the light of either of those orders, it should file and serve by 14 July 2008 written submissions in support of that application. Any answering written submissions on behalf of the applicant should be filed and served by 28 July 2008.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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