Ryder, Leslie v Citywide Service Solutions Pty Ltd
[1997] FCA 878
•21 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - whether OPERATIONAL REQUIREMENT for REDUNDANCY - whether TERMINATION for PROHIBITED REASON - previous physical disability suffered by employee in workplace - whether EMPLOYEE could perform inherent requirements of position - whether incumbent upon the employer to reconstruct tasks or the manner in which performed -
Workplace Relations Act 1996 ss170DE, 170DF, 170EA
Christie v Qantas Airways Limited (1996) 138 ALR 19
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
RYDER -V- CITYWIDE SERVICE SOLUTIONS PTY LTD
VI 1277 of 1997
PARKINSON JR
MELBOURNE
21 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VI 1277 of 1997
)
GENERAL DIVISION )
B E T W E E N: Leslie RYDER
Applicant
AND: CITYWIDE SERVICE SOLUTIONS PTY LTD
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 21 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application made pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VI 1277 of 1997
)
GENERAL DIVISION )
B E T W E E N: Leslie RYDER
Applicant
AND: CITYWIDE SERVICE SOLUTIONS PTY LTD
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 21 AUGUST 1997
REASONS FOR JUDGMENT
This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’) The respondent is a successor to the business of the Melbourne City Council. The respondent is a proprietary limited company which is wholly owned by the Melbourne City Council. The applicant was employed by the Melbourne City Council as a qualified trade Fitter and Turner on 3 May, 1989. He is fifty years old. He was retained in the employment of the respondent after it succeeded to the business of Melbourne City Council. The applicant was initially employed at the Green Street Depot, however in 1994 he transferred to the Dynon Road Depot.
In April, 1994, in the course of performing his duties at Dynon Road, the applicant suffered a workplace injury which affected his lower back and groin. He was absent from work for approximately 2 months and then returned to work upon a graduated rehabilitation program from 7 June, 1994. He worked reduced hours until March 1995, when he recommenced full time hours of work. The evidence is that, after the return to work, the applicant’s work was limited in the nature of duties he could perform. Medical evidence to this effect was provided on an ongoing basis throughout the period March 1995 to March 1996. The applicant continued to work normal hours of work and performed duties mainly in the workshop at Dynon Road. His duties involved repairs and welding maintenance work, although on some occasions during the period he performed work on plant and equipment on site. The evidence was however that he did so with the assistance of other trades persons or a trades assistant.
I am satisfied that any work requiring excessive lifting of weight or awkward posture was allocated to other employees. This was able to be accommodated because of the number of employees then engaged at the Dynon Road Workshop and the range of tasks being performed. I accept the evidence of Mr. Consolo, which was to a large extent conceded by the applicant, that the heavier duties and aspects of tasks required to be performed by the applicant were allocated to other employees at the workshop, including other fitters and trades assistants.
In 1996 the respondent decided to close the Dynon Road Workshops and to amalgamate the functions with the Green Street maintenance depot. As a consequence of the closure of the Dynon Workshops and the outside contracting of some work functions, the number of fitters and trades assistants required to be employed significantly reduced.
On 19 March, 1996 a number of employees were notified that their positions were to become redundant.(Exhibit R1 Document 6) The workshop at which they were employed was to be closed down. I am satisfied that there was a valid operational requirement for the declaration of the redundancies and save for the operation of s170DF(1)(f), the respondent had valid reason for the termination of the employment. The applicant was one of a number of fitters and other trades and sub-trade employees who were informed that their positions were to become redundant.
On 20 March 1996 the applicant applied for an alternative redeployment position as a fitter at the Green Street workshop.(Exhibit R1 Document 7) I am satisfied having regard to the duty description and the evidence of Mr. Consolo, Dr. Bolzonello and Mr. Berryman that the position required a significant amount of bending and lifting, together with working in confined spaces. In many tasks the employee would be required to work on his own, carrying tools and climbing ladders. The respondent raised with the applicant the question as to his capacity to perform the duties of the position having regard to the disability he suffered as a result of the workplace injury.
The applicant initially accepted that he would be unable to perform the functions, but some weeks later altered his view and advised the respondent that he wished to be considered for the position. As I discuss later in this judgment, I am satisfied that his reconsideration was significantly influenced by a real desire to overcome his disability brought about by the workplace injury. He informed the respondent that he believed he could perform most of the duties required to be performed and some with modification or assistance. At the request of the respondent, the applicant obtained from his local doctor, Dr Irinyi, a medical certificate certifying that the applicant was able to perform the duties required.(Exhibit A3) Dr. Irinyi gave evidence in the proceedings and conceded that he had no detailed knowledge of the proposed tasks the applicant would be required to perform and that to some extent his certification relied upon the information the applicant provided as to his belief in his own capacity to perform the duties.
In view of the applicant’s ongoing injury problems, the respondent was not satisfied with this medical advice. It determined that the applicant ought be examined by its own medical and rehabilitation doctor, Dr Bolzonello, and that an inspection of the workplace ought be undertaken by the medical officer for the purpose of obtaining his advice upon the applicant’s capacity to perform the work required. In the interim period, the applicant was transferred to the Green Street depot into a temporary position, performing a short term task of repair and servicing meters. This transfer was effected at around early April, 1996 at the closure of the depot and continued until the date of the termination of the employment, on 4 October 1996.
The outcome of the inspection and examination by Dr Bolzonello was that he expressed the opinion that the applicant would not be able to perform the tasks required and that in doing so he would further jeopardise his recovery from the injury and his own safety in the course of performance of the work. As a consequence of this advice the respondent decided that the applicant could not be offered the alternative position of fitter at the Green Street Depot and his employment was terminated on account of redundancy, in view of the respondent considering there was no alternative position to which he could be redeployed.
The question for determination in this proceeding arises in two ways. Firstly did the respondent have valid reason for terminating the employment based upon the operational requirements of the respondent and secondly, was it any part of the respondent’s reason for terminating the applicant’s employment that he suffered a physical disability and if so was there a consequent contravention of s170DF(1)(f) of the Act?
As to the first aspect of the operation of s170DE(1), I am satisfied that the applicant’s current position of fitter at the Dynon Road workshop became redundant as a consequence of the operational requirements of the respondent. I am satisfied having regard to the steps taken by the respondent to ascertain alternative possibilities for the applicant and the period in which it continued the employment to enable adequate assessment to take place, that the termination of the employment was defensible and not capricious in the sense discussed by his honour Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. It is appropriate to note that I am satisfied that the initial decision, that the applicant’s position at Dynon Road was redundant, was not a decision made on the basis of the applicant’s workplace injury. I turn now to consider the application of s170DF(1)(f) of the Act.
Section 170DF(1)(f) provides;
An employer must not terminate an employee’s employment for any one or more of the following reasons: ...
(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities; ...
The applicant contends that his employment was terminated by reason of his physical disability arising from the work related injury. There is no doubt on the evidence that the applicant’s employment was terminated because the respondent formed the view that the applicant, as a result of his disability, was prevented from performing the duties of the only alternative available position of fitter at the Green Street workshop. In that regard the respondent had as part of the reason for the termination of the employment the disability of the applicant.
The respondent relies upon the defence available to it in s170DF(2) of the Act.
Section 170DF(2) provides:
Sub section (1) does not prevent a matter referred to in paragraph 1(f) from being a reason for terminating employment if the reason is based upon the inherent requirements of the particular position.
The respondent contends that the inherent requirements of the particular position were such that the applicant was incapable as a consequence of his injury or disability, of performing the work required.
The applicant contends that the defence available in sub-section 2 is to be construed strictly and not by regard to the mere administrative or operational convenience of the respondent. This is consistent with the decision of the majority in Christie v Qantas Airways Limited (1996) 138 ALR 19 and I accept is the appropriate way to approach the operation of the defence contained in sub-section 2 of s170DF.
It is apparent from the decision of their Honours Gray and Marshall JJ, constituting the majority in Christie, that the term “inherent requirements of the particular position” as used in the defence provision of s170DF(2) is a reference to the specific work or job being performed by the employee and not a reference to the general functions or tasks attributable to a particular occupation.
However the difference between the situation in Christie and that of the applicant in this proceeding, is that the applicant here is prevented by his injury from performing a large number of the actual tasks of the job. It is his capacity to perform the actual work which is in question in these proceedings. Whilst it is argued on behalf of the applicant that the question of capacity is one of degree and in his circumstance is not of such degree as to warrant a finding that the inherent requirements of the job could not be performed, albeit it is conceded with some accommodation on the part of the respondent, I am unable to agree with that submission.
In order to determine the inherent requirements of the particular position it is necessary to consider the elements of the position available and the nature of the work to be performed. It is not immediately apparent from the operation of s170DF(2) that an obligation arises in the respondent to alter the duties or manner of work performance to accommodate the applicant’s incapacity. Particularly where such alterations would be of such a nature as to require significant expenditure or allocation of further employee resources. That is the difference between this case and Christie. In Christie the majority were of the view that the ‘inherent requirements’ of the position referred to by the respondent were requirements brought about as a result of decisions as to its own administrative convenience on the part of the respondent and that systems of operating which were merely convenient, were not inherent requirements of the particular position in which the applicant was employed. In the present case the actual duties of the position and the work to be performed could not be performed by the applicant without pain and risk of further injury.
The medical evidence of the applicant’s own doctor, together with that of the doctor called on behalf of the respondent, satisfies me that there is ongoing pain and disability suffered by the applicant, notwithstanding his brave efforts to diminish its impact and convince the Court that he was able to perform some of the work available. The evidence also satisfies me that the applicant would be incapable, as a direct result of the injury he sustained in the workplace, from performing the duties required in the position at the Green Street Workshop. I have no doubt that the applicant’s change of view as to his own capacity was directly attributable to his anxiety about his own future employment prospects, having regard to his disability, and a desire on his own part to preserve his employment, notwithstanding his ongoing pain and physical disability. I am satisfied that the duties required to be performed were not within his capacity having regard to the injury he suffered.
The obligations which would be required to be imposed upon the respondent to accommodate the disability and to enable the applicant to be meaningfully employed, would be onerous and in my view in this case it would be unreasonable to require the respondent to undertake such obligations.
Whilst it is reasonable to query why the respondent could not accommodate the injury to the applicant in the same manner as it had previously accommodated it at Dynon Road, the respondent has established that, in a number of respects, its operational methods altered with the closure of Dynon Road Workshops. The alterations to operational methods occurred in the number and profile of employees. The abolition of trades assistant positions as a result of the redundancies and the abolition of a number of fitters positions meant that the respondent was now operating with less capacity to redistribute work in circumstances where the applicant was unable to perform a particular aspect of the job. Further there were a number of functions and duties no longer being performed by the respondent in house, consequently reducing the amount of available work for additional employees who may have been retained to assist the applicant. The evidence was that the respondent employed at Green Street one other fitter who worked exclusively on fleet vehicle maintenance. Whilst it was contended on behalf of the applicant that it would have been practicable to alter this employee’s duties to enable him to assist the applicant in the performance of his work, it is not apparent from the evidence that such an alteration would have enabled the volume of work required to be performed being able to be undertaken without undue burden upon the other employee. Further it is apparent from the evidence that the applicant, even were he assisted by another employee in a number of tasks which were generally one person jobs, would not be able to fully undertake the duties required and attributable to his trades skill and qualifications as a consequence of some of those functions being required to be performed in confined spaces. There were other aspects of the duties which were fundamental day to day tasks, which required the climbing of ladders and steps, carrying tools, a task which was beyond the capacity of the applicant to perform having regard to his workplace injury. Whilst it was put to the respondent’s witnesses that such work could be undertaken by the erection of scaffolding, I accept that such measures would be required frequently and require the allocation of significant financial resources. In addition it is apparent that the time allocated for the completion of such tasks requiring scaffolding would significantly increase. I do not consider that it is incumbent upon the respondent, as a consequence of the interpretation of ss170DF(2) in Christie, to reconstruct the tasks or the manner in which they be performed.
Having regard to the above considerations, which I have found significantly affect the capacity of the applicant to perform the duties of the position, I am satisfied that the respondent, in so far as it terminated the employment of the applicant by reason of the disability suffered by him, did so by reason of the inherent requirements of the position available for redeployment. I am satisfied that there has been no contravention of s170DE(1) or s170DF(1)(f) of the Workplace Relations Act, 1996 and consequently the application will be dismissed.
I certify that this and the preceding eight (8) pages
are a true copy of the Reasons for Judgment of
Judicial Registrar Parkinson.
Associate :
Dated : 21 August 1997
APPEARANCES
Counsel for the Applicant : Mr. M. Champion
Solicitors for the Applicant : Holding Redlich
Counsel for the Respondent : Mr. J. Bourke
Solicitors for the Respondent : Clayton Utz
Dates of hearing : 16 & 17 July 1997
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